APA Handbook of Ethics in Psychology (2 Volume Set): v. 1. Moral foundations and common themes — v. 2. Practice, teaching, and research [1-2] 9781433810008, 143381000X, 9781433810015, 1433810018

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APA Handbook of

Ethics in Psychology

APA Handbooks in Psychology

APA Handbook of

Ethics in Psychology volume 1 Moral Foundations and Common Themes

Samuel J. Knapp, Editor-in-Chief Michael C. Gottlieb, Mitchell M. Handelsman, and Leon D. VandeCreek, Associate Editors

American Psychological Association • Washington, DC

Copyright © 2012 by the American Psychological Association. All rights reserved. Except as permitted under the United States Copyright Act of 1976, no part of this publication may be reproduced or distributed in any form or by any means, including, but not limited to, the process of scanning and digitization, or stored in a database or retrieval system, without the prior written permission of the publisher. Published by American Psychological Association 750 First Street, NE Washington, DC 20002-4242 www.apa.org To order APA Order Department P.O. Box 92984 Washington, DC 20090-2984 Tel: (800) 374-2721; Direct: (202) 336-5510 Fax: (202) 336-5502; TDD/TTY: (202) 336-6123 Online: www.apa.org/pubs/books/ E-mail: [email protected] In the U.K., Europe, Africa, and the Middle East, copies may be ordered from American Psychological Association 3 Henrietta Street Covent Garden, London WC2E 8LU England AMERICAN PSYCHOLOGICAL ASSOCIATION STAFF Gary R. VandenBos, PhD, Publisher Julia Frank-McNeil, Senior Director, APA Books Theodore J. Baroody, Director, Reference, APA Books Kristen Knight, Project Editor, APA Books Typeset in Berkeley by Cenveo Publisher Services, Columbia, MD Printer: Edwards Brothers, Ann Arbor, MI Cover Designer: Naylor Design, Washington, DC Library of Congress Cataloging-in-Publication Data APA handbook of ethics in psychology / Samuel J. Knapp, editor-in-chief; Michael C. Gottlieb, Mitchell M. Handelsman, and Leon D. VandeCreek, associate editors. v. cm. — (APA handbooks in psychology) Contents: v. 1. Moral foundations and common themes — v. 2. Practice, teaching, and research. Includes bibliographical references and index. ISBN-13: 978-1-4338-1000-8 ISBN-10: 1-4338-1000-X ISBN-13: 978-1-4338-1001-5 ISBN-10: 1-4338-1001-8 [etc.] 1. Psychologists—Professional ethics. 2. Professional ethics. I. Knapp, Samuel. II. American Psychological Association. BF76.4.A635 2012 174⬘.915—dc22 2011002499 British Library Cataloguing-in-Publication Data A CIP record is available from the British Library. Printed in the United States of America First Edition DOI: 10.1037/13271-000

Contents

Volume 1: Moral Foundations and Common Themes Editorial Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii About the Editor-in-Chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Series Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv Part I. Moral Foundations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chapter 1. Ethical Foundations of Psychology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Richard F. Kitchener and Karen S. Kitchener Chapter 2. Ethics and Ethics Codes for Psychologists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Stephen H. Behnke and Stanley E. Jones Chapter 3. Social Justice and Civic Virtue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Melba Vasquez Chapter 4. Ethical Decision Making in Mental Health Contexts: Representative Models and an Organizational Framework . . . . . . . . . . . . . . . . . 99 R. Rocco Cottone Chapter 5. Institutional Ethical Conflicts With Illustrations From Police and Military Psychology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Carrie H. Kennedy Part II. Ethics in Professional Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Chapter 6. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Thomas F. Nagy Chapter 7. Emotional Competence and Well-Being . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Leonard J. Tamura Chapter 8. Competence With Diverse Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Dianne S. Salter and Beatrice R. Salter Chapter 9. Boundaries, Multiple Roles, and the Professional Relationship . . . . . . . . . . . . . 241 Rita Sommers-Flanagan

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Contents

Chapter 10. Religion, Spirituality, and Mental Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Alan C. Tjeltveit Chapter 11. Sexualized Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Janet L. Sonne Chapter 12. Informed Consent to Psychotherapy (Empowered Collaboration) . . . . . . . . . 311 Andrew M. Pomerantz Chapter 13. Confidentiality and Record Keeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Mary Alice Fisher Chapter 14. Treating Clients Who Threaten Others or Themselves . . . . . . . . . . . . . . . . . . 377 Elizabeth Reynolds Welfel, James L. Werth Jr., and G. Andrew H. Benjamin Chapter 15. Ethical Issues With Patients at a High Risk for Treatment Failure . . . . . . . . . 401 Samuel J. Knapp and John Gavazzi Chapter 16. Ethical Issues and the Beginning and End of Therapy . . . . . . . . . . . . . . . . . . . 417 Jeffrey N. Younggren and Denise D. Davis Chapter 17. Ethics and Business Issues in Psychology Practice. . . . . . . . . . . . . . . . . . . . . . 433 Jeffrey E. Barnett and Lindsay Klimik Chapter 18. The Regulation of Professional Psychology . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Stephen T. DeMers and Jack B. Schaffer Chapter 19. Risk Management for Psychologists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483 Samuel J. Knapp, Bruce E. Bennett, and Leon D. VandeCreek

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Editorial Board

EDITOR-IN-CHIEF Samuel J. Knapp, EdD, ABPP, Director of Professional Affairs, Pennsylvania Psychological Association, Harrisburg ASSOCIATE EDITORS Michael C. Gottlieb, PhD, ABPP, Independent Practice, Dallas, TX Mitchell M. Handelsman, PhD, Professor of Psychology and CU President’s Teaching Scholar, University of Colorado Denver Leon D. VandeCreek, PhD, ABPP, Professor, School of Professional Psychology, Ellis Human Development Institute, Wright State University, Dayton, OH

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About the Editor-in-Chief

Samuel J. Knapp, EdD, ABPP, has been the director of professional affairs for the Pennsylvania Psychological Association since 1987. His primary area of interest is in professional ethics. His other areas of interest include mental health and well-being, public policy advocacy, and religion and psychology. In addition to writing several books, numerous book chapters, and more than 80 peerreviewed articles, Dr. Knapp has given more than 250 professional presentations, mostly on ethical issues. Through his work with the Pennsylvania Psychological Association, Dr. Knapp has provided thousands of consultations on ethics to psychologists. In return, these consultees have enriched him by instructing him on the issues they face daily, and their issues provide much of the content for his publications and presentations. He feels much appreciation for the board of directors of the Pennsylvania Psychological Association for allowing him to serve the psychological community in Pennsylvania in this manner. Among his other ethics-related activities, Dr. Knapp coordinates an annual “Ethics Educators” workshop in Pennsylvania; has served as a member of the Task Force responsible for rewriting the 2002 American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct; coauthored an ethics text book (Practical Ethics: A Positive Approach) with Leon D. VandeCreek; served as a consultant for the APA Insurance Trust, where he worked on the well-received book Assessing and Managing Risk in Professional Practice; and received the 2009 award for ethics education from the APA Ethics Committee. He also teaches ethics in the doctoral program in clinical psychology at the Philadelphia College of Osteopathic Medicine. Dr. Knapp is part of a cadre of psychologists, most of whom participated in this volume, who work from the framework of positive (or active, or integrated) ethics, which attempts to shift the focus on ethics education away from an emphasis on laws and disciplinary actions to a broader approach that appreciates the importance of overarching ethical principles and striving for ethical ideals. A positive perspective permeates many of the chapters in this handbook. Dr. Knapp is married to Dr. Jane Heesen Knapp, an accomplished psychologist in her own right. They have two children, Michelle Nakasone (married to Jon Nakasone) and Valerie Dietrich (engaged to Greg McClellan); one grandson, Cale Nakasone; and currently share their loving home with Lucy, a mixed-breed terrier, and Violet, a Manx cat.

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Contributors

Sharon K. Anderson, PhD, School of Education, Colorado State University, Fort Collins Jeffrey E. Barnett, PsyD, ABPP, Loyola University Maryland, Baltimore Stephen H. Behnke, JD, PhD, Ethics Office, American Psychological Association, Washington, DC G. Andrew H. Benjamin, JD, PhD, ABPP, Parenting Evaluation/Training Program, University of Washington, Seattle Bruce E. Bennett, PhD, American Psychological Association Insurance Trust, Rockville, MD Donald N. Bersoff, PhD, JD, Earle Mack School of Law and Department of Psychology, Drexel University, Philadelphia, PA Shane S. Bush, PhD, ABPP, ABN, VA New York Harbor Healthcare System, St. Albans, NY Linda F. Campbell, PhD, Department of Counseling and Human Development, University of Georgia, Athens Alicia Coleman, MS, University of Texas Southwestern Medical Center, Dallas R. Rocco Cottone, PhD, Division of Counseling and Family Therapy, University of Missouri, St. Louis Catherine Currell, MA, Central Michigan University, Mount Pleasant Jessica Henderson Daniel, PhD, ABPP, Department of Psychiatry, Children’s Hospital Boston, Boston, MA; Harvard Medical School, Boston, MA Denise D. Davis, PhD, Vanderbilt University, Nashville, TN David DeMatteo, JD, PhD, Department of Psychology, Drexel University, Philadelphia, PA Stephen T. DeMers, EdD, Association of State and Provincial Psychology Boards, Peachtree City, GA Nancy K. Dess, PhD, Department of Psychology, Occidental College, Los Angeles, CA Celia B. Fisher, PhD, Center for Ethics Education, Fordham University, Bronx, NY Mary Alice Fisher, PhD, The Center for Ethical Practice, Charlottesville, VA Elizabeth E. Foster, MA, Department of Psychology, Drexel University, Philadelphia, PA John Gavazzi, PsyD, ABPP, Independent Practice, Mechanicsburg, PA Rodney K. Goodyear, PhD, School of Education, University of Redlands, Redlands, CA Michael C. Gottlieb, PhD, ABPP, Independent Practice, Dallas, TX Mitchell M. Handelsman, PhD, Professor of Psychology and CU President’s Teaching Scholar, University of Colorado Denver Stephanie L. Hanson, PhD, ABPP (Rp), College of Public Health and Health Professions, University of Florida, Gainesville David S. Hargrove, PhD, ABPP, Appalachian State University, Boone, NC Michael Hoerger, PhD, University of Rochester Healthcare Decision-Making Group, Rochester, NY Susan Jacob, PhD, Department of Psychology, Central Michigan University, Mount Pleasant xi

Contributors

Stanley E. Jones, PhD, Fairview, NC Peter A. Keller, PhD, Mansfield University, Mansfield, PA Carrie H. Kennedy, PhD, United States Navy, Pensacola, FL Thomas R. Kerkhoff, PhD, ABPP (Rp), Department of Clinical and Health Psychology, University of Florida, Gainesville Allan J. Kimmel, PhD, Marketing Department, ESCP Europe, Paris, France Karen S. Kitchener, PhD, College of Education, University of Denver, Denver, CO Richard F. Kitchener, PhD, Department of Philosophy, Colorado State University, Fort Collins Megan M. Kleinheksel, BS, Department of Psychology, Central Michigan University, Mount Pleasant Lindsay Klimik, MS, Loyola University Maryland, Baltimore Samuel J. Knapp, EdD, ABPP, Pennsylvania Psychological Association, Harrisburg Jeffrey W. Knauss, EdD, ABPP, Private Practice, Allentown, PA Linda K. Knauss, PhD, ABPP, Institute for Graduate Clinical Psychology, Widener University, Chester, PA Gerald P. Koocher, PhD, ABPP, Simmons College, Boston, MA Allison L. Kramer, PhD, State University of New York, Sullivan College, Loch Sheldrake, NY Joel Lefkowitz, PhD, Baruch College and The Graduate Center, City University of New York, New York J. Dennis Murray, PhD, Department of Psychology, Mansfield University, Mansfield, PA Thomas F. Nagy, PhD, Department of Psychiatry and Behavioral Sciences, Stanford University School of Medicine, Stanford, CA David J. Palmiter Jr., PhD, ABPP, Marywood University, Scranton, PA Jennifer L. Perry, PhD, Department of Psychology, Kalamazoo College, Kalamazoo, MI Andrew M. Pomerantz, PhD, Department of Psychology, Southern Illinois University Edwardsville Anthony S. Ragusea, PsyD, Independent Practice, Key West, FL Emil Rodolfa, PhD, Counseling and Psychological Services, University of California, Davis Beatrice R. Salter, PhD, Independent Practice, Philadelphia, PA Dianne S. Salter, PhD, JD, Graduate School of Education, University of Pennsylvania, Philadelphia Jack B. Schaffer, PhD, ABPP, Association of State and Provincial Psychology Boards, Peachtree City, GA Joan E. Sieber, PhD, Professor Emerita, Department of Psychology, California State University East Bay; Editor, Journal of Empirical Research on Human Research Ethics, Hayward, CA Rita Sommers-Flanagan, PhD, University of Montana, Missoula Janet L. Sonne, PhD, Loma Linda University, Loma Linda, CA Leonard J. Tamura, PhD, Independent Practice, Littleton, CO Alan C. Tjeltveit, PhD, Psychology Department, Muhlenberg College, Allentown, PA Karyn Vacanti-Shova, MS, Fordham University, Harrison, NY Leon D. VandeCreek, PhD, ABPP, School of Professional Psychology, Wright State University, Dayton, OH Melba Vasquez, PhD, Independent Practice, Austin, TX Elizabeth Reynolds Welfel, PhD, Counseling Psychology, Cleveland State University, Cleveland, OH James L. Werth Jr., PhD, ABPP, Department of Psychology, Radford University, Radford, VA Patrick Williams, EdD, Institute for Life Coach Training, Palm Coast, FL Jeffrey N. Younggren, PhD, ABPP, American Psychological Association Insurance Trust, Rockville, MD xii

Series Preface

The APA Handbook of Ethics in Psychology is the second publication to be released in the American Psychological Association’s latest reference line, the APA Handbooks in Psychology™ series. The series will comprise multiple two- and three-volume sets focused on core subfields, and sets will be issued individually over the next several years. Some 20 are currently envisioned, with more than half already commissioned and in various stages of completion. Additionally, several handbooks on highly focused content areas within core subfields will also be released in conjunction with the series. Thus, the APA Handbooks in Psychology™ series now joins APA’s three critically acclaimed, award-winning, and best-selling dictionaries—the APA Dictionary of Psychology (2006), the APA Concise Dictionary of Psychology (2008), and the APA College Dictionary of Psychology (2009)—as part of a growing suite of distinguished reference literature. Each handbook set is formulated primarily to address the reference interests and needs of researchers, clinicians, and practitioners in psychology and allied behavioral fields. A secondary purpose is to meet the needs of professionals in pertinent complementary fields (i.e., by content area), be they corporate executives and human resources personnel; physicians, psychiatrists, and other health personnel; teachers and school administrators; cultural diversity and pastoral counselors; legal professionals; and so forth. Finally, the entire series is geared to graduate students in psychology who require well-organized, detailed supplementary texts, not only for “filling in” their own specialty areas but also for gaining sound familiarity with other established specialties and emerging trends across the breadth of psychology. Under the direction of small and select editorial boards consisting of top scholars in the field, with chapters authored by both senior and rising researchers and practitioners, each reference set is committed to a steady focus on best science and best practice. Coverage converges on what is currently known in the particular subject area (including basic historical reviews) and the identification of the most pertinent sources of information in both core and evolving literature. Volumes and chapters alike pinpoint practical issues; probe unresolved and controversial topics; and present future theoretical, research, and practice trends. The editors provide clear guidance to the “dialogue” among chapters, with internal crossreferencing, demonstrating a robust integration of topics that leads the user to a clearer understanding of the complex interrelationships within each field. With the imprimatur of the largest scientific and professional organization representing psychology in the United States and the largest association of psychologists in the world,

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Series Preface

and with content edited and authored by some of its most respected members, the APA Handbooks in Psychology series will be the indispensable and authoritative reference resource to turn to for researchers, instructors, practitioners, and field leaders alike. Gary R. VandenBos, PhD APA Publisher

xiv

Introduction

For several years, my coeditors and I have maintained that discussions of ethics have focused too much on misconduct, punishment, and legal sanctions and too little on aspirations, values, principles, and virtues. We fear that the net effect of such an approach has been to create an atmosphere in which psychologists have viewed ethics as unpleasant and frightening instead of inspiring and uplifting. Of course, psychologists need to be concerned about laws, codes, and regulations, but these documents do not and should not constitute the beginning and end of discussions on ethics. We view the study of ethics as a striving toward our highest ethical ideals, not just an injunction against rule violation. We have previously referred to this perspective as positive ethics or active ethics (Handelsman, Knapp, & Gottlieb, 2009; Knapp & VandeCreek, 2006), and other ethics scholars, including many who have contributed to this work, share our vision that positive ethics can elevate the behavior of psychologists above the minimal standards found in law and enforceable ethics codes. When I was approached by the American Psychological Association (APA) as a potential editor-in-chief for this two-volume set, I agreed because I saw an opportunity to guide the discussion of ethics within psychology toward a more positive direction, and I invited Michael Gottlieb, Mitchell Handelsman, and Leon VandeCreek to collaborate with me as associate editors. Together, as the editorial board, we then invited authors whom we believed either shared our perspective or were amendable to incorporating positive dimensions into their work whenever appropriate. The general structure of this handbook parallels other handbooks in the new APA Handbooks in Psychology™ series. It is intended for practitioners, researchers, academic psychologists, and graduate students who seek a comprehensive review of a particular area of psychology. In comparison with many ethics textbooks, it covers a wider range of subjects and pursues them in greater detail. This handbook also reflects recent advances in research and technology that present new opportunities and challenges for practice and scholarship. Psychology is expanding into new areas, such as life coaching and providing services over the Internet. These are just two examples of developments that present fascinating, novel ethical questions that deserve our attention, and we have attempted to give them and other developing challenges the attention they deserve. Furthermore, our understanding of appropriate behavior and our obligations toward others change over time. Over the years, thoughtful scholars have continued to reflect on the ethical dimensions of psychology and sometimes have challenged conventional concepts of what constitutes acceptable or unacceptable behavior. For example, psychology and health care in general have long required practitioners and researchers to obtain the informed xv

Introduction

consent of their patients and research participants. In recent years, however, efforts to ensure that consent is even more collaborative and informed have increased. These changes also are reflected in the chapters that follow. SOME GUIDING PRINCIPLES Several perspectives guided the development of this handbook. First, the issue of moral foundations is especially important to us: Psychologists can best appreciate ethical issues and behaviors when they understand them within the context of overarching ethical theory. Consequently, the chapters go beyond reciting a list of prohibitions and warnings to help readers consider practices in light of foundational moral perspectives. Second, we wanted authors to consider research relevant to their subject. Naturally, the chapters vary in the extent to which they incorporate extensive research. For example, some chapters had fewer data to draw upon, whereas others (such as the ones on emotional competence and sexualized treatment relationships) were able to rely heavily on empirical research. Third, our profession has become more sensitive in recent years to issues of fairness and inclusiveness, especially in dealing with groups that historically have been marginalized in American history as well as American psychology. We asked authors to address diversity issues wherever it was appropriate. Consequently, discussions of diversity appear not only in the specific chapter on competence with diverse populations but also in other chapters as varied as research, emotional competence, and supervision. Finally, we wanted authors to offer their views on controversial issues, but we asked them to discuss them in a fair and even-handed manner, rest their conclusions on overarching principles, and acknowledge other reasonable perspectives. At times, authors reached conclusions with which we disagreed; we expect that some readers will as well. Our goal is not to claim a resolution of the issues, but rather to introduce readers to them and to stimulate productive discussions and exchanges of ideas.

Selection of Topics In developing this handbook, we were confronted with a number of editorial decisions. For example, we asked ourselves the following questions: Should the handbook contain a separate chapter on ethical issues in family therapy, or could these issues be incorporated in another chapter? Should separate chapters cover behavior therapy, neuropsychology, and sports psychology? Are the issues in correctional psychology sufficiently unique that they need to be addressed in a chapter separate from one on psychologists working in other institutions? Should we have a separate chapter on military psychology, police psychology, or working in public mental health centers or hospitals? Of course, group therapy should be covered, but given the realistic limits on the length of the handbook, does the topic justify a separate chapter or can its issues be adequately covered within another chapter? What topics in research should be emphasized, and how should we arrange these chapters? Even when we had decided on chapter topics, we still had to decide what content to include in those chapters. Although the coeditors and I provided detailed suggestions for authors, we relied highly on their expertise in deciding what issues to cover and at what depth to cover them. Despite the length of this handbook, space limitations did not permit authors to identify every possible issue, much less review each exhaustively. Rather, authors had to use their discretion regarding the material they covered and how much attention to devote to any one particular issue. xvi

Introduction

We expect that our selections will disappoint some who feel that their particular interests were not represented adequately. We regret this limitation and can only assure readers that we attempted to cover as much territory as space would allow. We tried to compensate for space limitations by minimizing redundancies whenever possible and by using extensive cross-referencing among chapters. ORGANIZATION Psychologists generate knowledge through research, disseminate it through teaching, apply it through professional services, and synchronize all three using theory as a guide. We organized this handbook to reflect these relationships to knowledge. The first section deals with overarching foundations that are relevant to all areas discussed in this handbook. The second and third sections include applications of knowledge in the subspecialties and emerging areas of professional practice. The fourth section considers ethical issues when disseminating information through teaching and supervision, and the final section is concerned with ethical issues in generating information through scholarship and research.

Volume 1, Part I: Moral Foundations The first section of this handbook reviews foundational ethics and theories that provide the moral foundations for our work. It also contains chapters on the nature and role of the APA Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010), social justice, ethical decision making, and institutional conflicts. Richard F. Kitchener and Karen S. Kitchener begin this section of the handbook with a review of the ethical foundations of psychology as a discipline and profession. This important chapter defines ethics and reviews the major ethical theories such as virtue, deontological (duty-based), utilitarian, and principle-based ethics as they relate to psychology. It sets the tone for the rest of the handbook, and its placement at the beginning reflects the importance the editorial board ascribes to foundational ethics. A centerpiece of the field is the APA Ethics Code; Stephen H. Behnke and Stanley E. Jones reflect on the functions of ethics codes in general and the APA Ethics Code in particular. They consider, among other issues, how ethics codes help professionals avoid misconduct and reach their highest ethical ideals. This chapter describes multiple aspects of the APA Ethics Code, including its functions and format, how it was created and has evolved, and its relationship to moral theories. Melba Vasquez covers issues of social justice and the contributions that psychologists can make to the profession and the broader community. Collectively, psychologists address social problems and injustices, including lack of equal access to resources and increased exposure to harm, such as domestic violence, prejudice, and international conflict. As individuals, psychologists can provide pro bono work and develop welcoming attitudes toward members of disenfranchised groups. Ethical decision making is a core competency required of all psychologists, and several authors refer to decision-making processes specific to the content of their chapters. R. Rocco Cottone presents an overview of ethical decision-making models and concludes with a discussion of his own perspective, based on a social constructivist model. The issue of institutional conflicts always has been difficult for psychologists and has even been referred to as “juggling porcupines” (Koocher & Keith-Spiegel, 2008, p. 485). Recently, this conflict has been the source of great controversy within APA in the wake of xvii

Introduction

allegations that some psychologists may have participated in torture. This controversial issue is one that we believed was necessary for the handbook to consider. We received no mandate from APA to cover this issue, nor did we receive any instructions on how to address it. Instead, the editors chose an author they believed could cover the salient issues in institutional conflicts and asked her to address this particular issue consistent with the guidelines for controversial topics described above. We appreciate the way that Carrie H. Kennedy handled this topic. Although much of her chapter considers ethical issues in the military, her coverage has relevance for work within other institutions as well.

Volume 1, Part II: Ethics in Professional Practice Competence takes center stage in understanding ethical behavior. In her commentary on the 2002 APA Ethics Code, Celia Fisher said that “competence is the lynchpin enabling psychologists to fulfill other ethical obligations” (2003, p. 45). Although competence is addressed in some form in nearly every chapter, Thomas F. Nagy’s unifying chapter reviews essential information, such as the roles of institutions in ensuring minimal competence, exceptions to competence (such as providing services in emergencies or in underserved areas), development of specialties, and other issues. Other chapters expand on emotional competence and competence with diverse populations. Leonard J. Tamura’s review of the empirical literature on impairment and emotional competence traces the evolution of psychology’s concern with self-care. A few decades ago, psychologists expressed concern about a few “impaired” psychologists whose competence declined because of alcoholism, emotional problems, or physical conditions. In the 21st century, discussions of self-care have broadened, and all psychologists are asked to reflect on their emotional well-being and its relationship to the quality of their services. Tamura moves beyond an individualistic approach and asks psychologists to consider how they can promote a sense of well-being and community within psychology. Psychology is increasing its concern with multiculturalism and diversity. Dianne S. Salter and Beatrice R. Salter note that this focus rests firmly on an overarching moral foundation that seeks to ensure fairness and sensitivity, especially to those who have been marginalized traditionally. They address the issues of how psychologists can treat persons competently when delivering professional services, including the importance of considering culturebound syndromes, acculturation status, issues with interpreters and translators, and specific boundary issues with culturally diverse patients. Two chapters focus on managing patient relationships or boundaries. Rita SommersFlanagan addresses the ethical foundations of the standards on boundaries and multiple relationships and how those standards facilitate treatment. Janet L. Sonne reviews the empirical literature on sexualized relationships and provides a history of the field’s attempts, or lack thereof, to deal constructively with this problem. She also incorporates current thinking regarding prevention, punishment, and rehabilitation and broadens the discussion of sexual misconduct beyond egregious exploitation to subtle ways that sexual attraction, if unaddressed, could erode a productive therapeutic relationship, even among those psychologists who are at a low risk of committing an ethical violation. John Lemoncelli has noted that the most intimate discussions that he has had with patients do not deal with sex (or even money), but with their feelings toward God (Lemoncelli & Knapp, 2010). Discussions of religion and the introduction of religious ideas and practices into psychotherapy have the potential to be effective or harmful. In his chapter, Alan C. Tjeltveit considers the relationship of religion and psychotherapy. He addresses xviii

Introduction

the question of when or how to use interventions that draw on religion or spirituality and how to do so in a manner that does not inappropriately attempt to influence a client’s beliefs. Celia Fisher has noted that the 2002 revision of the APA Ethics Code “reflects the societal sea change from a paternalistic to an autonomy-based view of professional and scientific ethics” (2003, p. 77). Andrew M. Pomerantz identifies the implications of this “sea change” in his chapter on informed consent. He reviews the legal issues surrounding informed consent, but also describes how psychologists can implement an informed consent process in a manner that maximizes patient participation in treatment decision making, a process he calls “empowered collaboration.” Jeffrey N. Younggren and Denise D. Davis later illustrate the importance of such informed-consent processes as they discuss ethical issues that arise in starting and ending therapy. Mary Alice Fisher describes the issues and dilemmas that psychologists face when trying to maximize patient privacy in light of countervailing laws and ethical concerns. One of the decisions that psychologists have to make is how to balance confidentiality when the welfare of an individual or society is at risk. Elizabeth Reynolds Welfel, James L. Werth Jr., and G. Andrew H. Benjamin describe these issues and how to balance confidentiality when patients threaten suicide, homicide, or other forms of harm to individuals or society. Professional psychologists are often reluctant businesspersons. Jeffrey E. Barnett and Lindsay Klimik review how professional psychologists can make business decisions that are fair to their patients and third parties. Despite our emphasis on the aspirational and positive aspects of ethics, we cannot forget that psychology is a regulated profession. Stephen T. DeMers and Jack B. Schaffer review the regulatory foundations and discipline of psychologists from the standpoint of licensing boards, ethics committees, and other regulatory bodies. This chapter reminds us that the difference between aspirational and enforceable ethics is not absolute. After all, violations of laws or minimal standards of the profession potentially result in harm to patients, even if indirectly. Bruce E. Bennett has joined with Leon D. VandeCreek and me to review issues concerning professional liability and risk management. In a sense, the entire handbook could be seen as a risk management manual to the extent that abstaining from unethical behavior and fulfilling ethical potential substantially reduces the risk of being disciplined. Nonetheless, a one-to-one relationship does not exist between ethical misconduct and being the object of a patient complaint, even for those psychologists who do good work, and sometimes exceptionally good work. Fortunately, the literature on patient satisfaction, medical errors, and safety science informs psychologists about how to reduce this risk and improve performance beyond simply following the laws and enforceable standards of the ethics code. Finally, John Gavazzi and I expand on risk management issues when discussing patients who have a high risk of failure. Using ethically based risk management or quality-enhancing strategies, we suggest ways to enhance outcomes among patients who may be the most difficult to treat.

Volume 2, Part I: Ethical Issues With Subpopulations, Specialized Settings, and Emerging Areas The breadth of psychology becomes apparent when one considers the many populations that psychologists serve and the variety of services that they provide. This section covers the major subdisciplines of psychology, including children, multiperson therapy (family and group), older adults, health psychology, assessment, forensic and school psychology, and business consulting. New applications of coaching, therapy over the Internet, and psychologists in the xix

Introduction

media are considered as well. In each of these areas, psychologists must act competently, and consider informed consent, confidentiality, and other ethical issues. It often has been noted that children are not miniature adults but individuals with unique needs based on their developmental level and familial structure. Gerald P. Koocher and Jessica Henderson Daniel review ethical issues with children, while Shane S. Bush looks at the other end of life and reviews ethical issues with older adults. Linda K. Knauss and Jeffrey W. Knauss examine group and family therapies, which involve the simultaneous treatment of more than one person. Peter Keller and I (Knapp & Keller, 2000) once described psychology as a “mental health, health care, and problem solving profession.” Some of the chapters concern activities other than treating mental disorders, such as health psychology, industrial–organizational (I/O) psychology, life coaching, and other areas. Many psychologists are now working in the field of health psychology. The boundary between health and mental health is often arbitrary, and the failure to see the connection between mind and body can work against the best interests of the patient. As Richard Ievoli once wrote, “Mind and body: Tear down this wall!” (2006, p. 2). Stephanie L. Hanson and Thomas R. Kerkhoff discuss issues related to health psychology and especially the need for adequate training and experience to ensure competent patient-centered care, often delivered as part of a larger treatment team. Assessment always has been a special strength of psychologists, but it is also an area that raises many ethical issues. This is especially so now that psychologists have expanded testing beyond education and mental health assessment into health evaluations, such as eligibility for bariatric surgery or transplants, personnel selection, and others. Donald N. Bersoff, David DeMatteo, and Elizabeth E. Foster cover the laws that govern testing, test security (including release of test data and materials), and ways to empower patients through collaborative assessments. Perhaps more than any other specialty, school psychology is highly regulated by state and federal law. In addition, school psychologists often belong to the National Association of School Psychology (NASP), which has its own ethics code. Consequently, conscientious school psychologists need to understand federal and state education law and the NASP Ethics Code and how these are designed to protect schoolchildren and ensure an acceptable level of service to them. Susan Jacob and Megan M. Kleinheksel review these laws and code and explain how school psychologists can strive for high levels of competence within that context. Joel Lefkowitz challenges the idea that I/O psychology is value free. He argues that I/O psychologists are bound to standards of ethics that include considering the impact of their decisions on individual workers and other parties. Psychologists need to anchor their decisions in overarching ethical values with the goal of improving organizational climate and individual welfare of workers, whether the task is job analysis, employee screening, personnel selection, organizational development, or other activities. Economic decisions should not replace “the traditional humanistic values of psychology” (p. 160). Forensic psychology is one of the most rapidly expanding applications of psychology. A few psychologists are forensic specialists, but most professional psychologists will have some forensic involvement at some point in their careers. As the scientific basis of psychology has grown, so too has its potential to provide useful information in resolving legal disputes. Michael C. Gottlieb and Alicia Coleman review the issues surrounding forensic psychology and introduce us to the complexities that occur when law and psychology interact. Several chapters deal with emerging roles in psychology. Increasingly, psychologists view coaching (sometimes called executive coaching or life coaching) or other performance-enhancement xx

Introduction

activities as ways to promote client welfare. Coaching has some superficial resemblance to therapy in that it usually is conducted in private and requires significant self-disclosure on the part of the client. However, it differs in terms of its procedures and goals. Sharon K. Anderson, Patrick Williams, and Allison L. Kramer examine the ethical issues associated with coaching and identify how to apply overarching principles to coaching in light of its differences with counseling and psychotherapy. More psychologists are delivering services through distance media, such as the telephone, Internet, or face-to-face computer enhanced images. Anthony S. Ragusea reviews the ethical issues surrounding these services. He notes that they can be delivered poorly but that they can also be delivered well if psychologists appreciate the strengths and limits of these media. George Miller (1969) urged that psychology should be given away, and Ronald Levant later urged psychologists to “make psychology a household word” (Greir, 2005, p. 50). David J. Palmiter Jr. reflects on the ethical issues that arise when psychologists participate in the media, including innovative forms such as blogs, Twitter, and Facebook. He addresses psychologists’ relationship to the audience, their roles as entertainers and educators (vs. as professionals), and the ethical considerations surrounding such activities as interviews, blogs, and “advertoids.”

Volume 2, Part II: Ethical Issues of Academic and Training Psychologists Peter A. Keller, J. Dennis Murray, and David S. Hargrove cover the essential elements of ethical behavior in the classroom (competence, fairness to students, plagiarism, use of syllabi, attention to issues of diversity, etc.). They go beyond these basic considerations, however, and emphasize “the role of psychologists in creating and supporting positive and sustainable ethical cultures and climates” (p. 219) characterized by cooperation, concern, and respect among faculty, students, and other members of the academic community. Rodney K. Goodyear and Emil Rodolfa discuss relevant ethical issues in supervision. Their chapter covers topics including (a) the overarching moral principles related to supervision, including developing competence as a supervisor; (b) determining competency of supervisees; (c) managing multiple relationships; and (d) handling informed consent with supervisees, including the informed-consent process between the supervisor and supervisee and between the supervisee and client–patient. In her chapter on teaching ethics to psychologists, Elizabeth Reynolds Welfel notes how ethics was undervalued as a part of psychology’s curriculum for many years under the mistaken assumption that students would absorb the ethical standards through observing ethical faculty. This has changed. Now, ethics is a required part of the curriculum of APA-accredited programs. She expresses a sentiment consistent with positive ethics that “teaching the Ethics Code is a starting point for ethics education, not its termination” (p. 285). She reviews strategies for teaching ethics that mirror the concepts important to teach: respect, courtesy, consideration, and healthy self-reflection done in a mutually supportive atmosphere.

Volume 2, Part III: Ethical Issues in Scholarship and Research Scholarship and research are the backbones of psychology. Whether psychologists are delivering services, teaching, or conducting research, they need to pay attention to how this information is created and reported. Jeffrey E. Barnett and Linda F. Campbell cover determinations of authorship, student authorship, plagiarism, sharing of data, and other topics. Most important, however, they xxi

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stress the underlying notions of fairness and respect when dealing with students, colleagues, and others involved in scholarship. Celia B. Fisher and Karyn Vacanti-Shova review ethical issues in research, including the evolution of standards governing federal research, the APA Ethics Code, and standards from other bodies. Readers will quickly note, however, the influence of moral foundations in their thinking about these issues. For example, Fisher and Vacanti-Shova look at the special issues that arise when conducting needed research with cultural or linguistic minorities, and they suggest ways to treat those who are involved in research as true “participants” rather than “subjects.” They consider the “goodness-of-fit” model in research in which the decisions need to be made in the context of the affected parties. Joan E. Sieber presents a similar perspective in her chapter on research issues with vulnerable populations. She notes that the vulnerability of a research participant depends not so much on the static demographics of the research participants as on the match between the specifics of the research project and the participant’s vulnerabilities. Social psychology has relied heavily on deceptive practices in research. Allan J. Kimmel reviews the controversy surrounding deception in research, including its advantages and disadvantages. Although he ultimately favors permitting deception, he notes that “extreme care must be taken in its application to protect against potential harms” (p. 417). When discussing research with nonhuman animals, Jennifer L. Perry and Nancy K. Dess go beyond outlining minimal standards of laws and regulations concerning their welfare and ask what can be done to reduce discomfort and increase the quality of their lives. “Researchers also do well to guard against a possible unintended consequence of oversight—letting oversight compliance overshadow ethical decision making” (p. 429). In other words, in a spirit of positive ethics, following the rules is not enough. Just as the emergence of technological advances has led to new ways to envision the delivery of psychological services, it also has led to new research possibilities. Michael Hoerger and Catherine Currell ask how to operationalize overarching ethical values in this context. They discuss ethical issues surrounding the use of e-mail discussion groups or other Internet-based research studies, including issues of privacy, informed consent, potential for harm, and debriefing.

ACKNOWLEDGMENTS My deep appreciation goes to my associate editors, Michael C. Gottlieb, Mitchell M. Handelsman, and Leon D. VandeCreek, who helped create the vision for this handbook. Together we selected the chapters, described the scope of their coverage, selected authors, reviewed manuscripts, and participated in many other editorial decisions. Although they attended to the details of editing the chapters, they never forgot the broader mission we had for this handbook. They used “positive edits” to further “positive ethics.” I also thank each of the chapter authors for sharing their expertise with us. We feel great admiration for the skill and knowledge that they brought to their work and felt honored that they agreed to write for us. I know that we all benefited from reading their work. Finally, I thank the reference staff at APA Books, especially Ted Baroody and Kristen Knight for their sensitivity and diligent work in making this handbook a reality. Ted piloted us through unforeseen problems and difficult decisions with tact and discernment. For more than a year, I was in almost daily contact with Kristen, who conscientiously attended to

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details and guided us patiently and graciously through the electronic review process. They deserve substantial credit for whatever positive qualities this book contains. Samuel J. Knapp, EdD, ABPP Editor-in-Chief

References American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www.apa.org/ethics/code/index.aspx Fisher, C. (2003). Decoding the ethics code. Thousand Oaks, CA: Sage. Greir, M. (2005, January). Taking psychology to the people. Monitor on Psychology, 36(1), 50. Handelsman, M. M., Knapp, S., & Gottlieb, M. C. (2009). Positive ethics: Themes and variations. In C. R. Snyder & S. J. Lopez (Eds.), Oxford handbook of positive psychology (2nd ed., pp. 105–113). New York, NY: Oxford University Press. Ievoli, R. (2006, August). Mind and body: Tear down this wall! The Pennsylvania Psychologist, 69(8), 2, 5. Knapp, S., & Keller, P. (2000, April). Strategies to advance the future of psychology. Presentation at Pennsylvania Regional Leadership Conference, Harrisburg, PA. Knapp, S., & VandeCreek, L. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. Koocher, G., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions. New York, NY: Oxford University Press. Lemoncelli, J., & Knapp, S. (2010, April). Religion, psychology, and ethics. Presentation at Marywood University, Scranton, PA. Miller, G. (1969). Psychology as a means of promoting human welfare, American Psychologist, 24, 1063–1075.

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PART I

MORAL FOUNDATIONS

CHAPTER 1

ETHICAL FOUNDATIONS OF PSYCHOLOGY Richard F. Kitchener and Karen S. Kitchener

Psychologists, whether they are experimentalists, industrial psychologists, or therapists, increasingly are faced with moral situations about which they must make ethical decisions. Consider the following two case examples. Case Example 1 A college sexual assault center receives numerous complaints from women that they have been sexually assaulted after (they surmise) they have been slipped a date rape drug. They all report the name of the same fraternity on campus. Although the sexual assault center reported the incidents to the campus police department, it refuses to reveal the name of the fraternity (or the women), citing the rule of confidentiality from the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010). Case Example 2 In a well-known and often-cited psychological study, Stanley Milgram (1974) led his research participants to believe they were giving dangerous electric shocks (up to 450 volts) to innocent individuals. The individuals did not actually receive such shocks but acted as if they did (including agonizing screams). Research participants obeyed the authority of

the experimenter, who insisted they proceed with administering the shocks. Participants showed a high degree of obedience to the experimenter’s authority, thus showing an analogy with Nazi atrocities. ETHICAL DILEMMAS These cases both present a difficult choice for the professional. The first case requires an interpretation of the meaning of maintaining confidentiality. If the therapist breaks confidentiality against the client’s wishes, the therapeutic relationship may be broken or at least damaged to the point at which trust in the therapist is questioned. If the therapist does not break confidentiality, it may bring harm to numerous other women who may experience the same demeaning experience. In the Milgram case, the choice is between potentially producing valuable knowledge while possibly harming research participants, versus not harming participants but also not producing knowledge. The psychologist must weigh the importance of gathering data against the need to preserve the rights of research participants to make informed decisions about participation. Most psychologists would agree that these and similar cases involve ethical issues, but trying to define the nature of the ethical problem and coming to an ethical conclusion is more difficult. Here, the quest for knowledge conflicts with one’s duties to one’s subjects.

We thank Samuel J. Knapp and Mitchell M. Handelsman for their detailed suggestions on an earlier version of this chapter. DOI: 10.1037/13271-001 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Although some would like to believe that the Ethics Code would cover these issues and give clear-cut answers, that is not always the case. Standard 4.02, Discussing the Limits of Confidentiality, also requires explaining the limits of confidentiality and implies that it may be broken with informed consent. In addition, Standard 4.06, Consultation, allows consulting with colleagues about the client with their informed consent to protect others from harm. In other words, should the therapist keep confidentiality absolutely or ask the clients for their consent to reveal the name of the fraternity? Even as more and more standards are added, clear-cut answers remain unclear. Ethical issues become problematic when there are no clear guidelines to give direction. Should psychologists rely on their personal values and judgments? Are such value judgments all equally valid or good? If not, how can such judgments be rationally defended? Are there guidelines for making such decisions, and if so, what are they? Are the codes of ethics of the various professional organizations adequate? Can they be justified? If so, how? This chapter discusses these and various other closely related issues concerning the ethical foundations of psychology and offers an account of how to resolve them.

Overview Ethics codes are ultimately inadequate as a basis for ethical decision making; a more general philosophical model is needed. To provide an adequate conceptual grounding for such a model, in this chapter we set forth its philosophical basis and briefly examine the field of philosophical ethics. The core of philosophical ethics is normative ethics, which we outline along with an overview of its major theories.

Personal Values When faced with difficult ethical decisions, people sometimes argue that one should fall back on one’s own (personal) values or sense of personal obligation. But which values should be relied on, and are everyone’s values equally acceptable? Part of the problem in identifying appropriate values is that the term value is used in multiple ways, so that what constitutes a value often is unclear. 4

When value is used as a noun, at least eight different realms of values have been distinguished (Frankena, 1963). These include morality, art, science, religion, economics, politics, law, and customs or manners. When value is used as a verb, it means to prize or to esteem and can extend to anything liked or desired. For example, someone may say he or she values ice cream, sex, a blue sky, and so on. Rollin (2006) called this area “personal ethics” and suggested that most of these judgments can be left to the discretion of the individual. Like law, personal values have areas that overlap with but are distinct from ethics. This is particularly true of religious values, many of which overlap with both the law and professional ethics. Conversely, in some areas, a professional’s personal values conflict with an ethics code, the profession’s culture, or the law. For example, a student in training may hold personal values based on religious beliefs that conflict with the law (e.g., that abortion is murder) or the core values of the profession (e.g., that gay and lesbian relationships are wrong).

Conscience When it is said that an ethical decision ought to be based on personal values, someone may mean “Let your conscience be your guide.” In fact, conscience is defined as “the sense or consciousness of the moral goodness or blame worthiness of one’s own conduct, intentions, or character together with a feeling of obligation to do right or be good” (Webster’s Ninth New Collegiate Dictionary, 1988, p. 278). In contrast to acting on personal values, acting on conscience implies that one is guided by moral values that one has considered in relationship to the situation at hand. In some cases, one’s conscience is erroneous. The maxim to follow one’s conscience does not imply that conscience is a sufficient or an infallible guide for moral action. In fact, claims of acting on conscience may merely be rationalizations for immoral acts. Furthermore, sometimes one’s conscience may fail to give any direction at all. Again, this does not imply that people should act in a way that they believe is wrong but that conscience, too, must be informed by a critical evaluation of ethical values. The critical question that psychologists must ask is, “What are the ethical values that psychologists

Ethical Foundations of Psychology

or counselors ought to hold, and how can they be justified?”

Professional Values The question of whether there are specific ethical values that therapists ought to hold is the cause of considerable debate. Most practicing psychologists, for example, learn that tolerance of a client’s values is one of the most basic assumptions of psychotherapy and that they are not to impose their values on a client. Others argue that professionals in the field have a right to hold and act on their own values. Certainly this argument has some merit, particularly with regard to values that do not directly influence professional decisions. However, some things that people esteem or value are not moral—for example, few would argue that professionals ought to value deliberately torturing clients or research participants. In short, a profession has limits to the values it can tolerate its members holding. Individuals freely choose to enter the profession of psychology. Once they have made that choice, it is presumed that they hold the values promoted by the profession and denounce the values that are antithetical to it. APA legitimizes this process by stating to prospective members that by submitting an application they are agreeing to uphold the profession’s code of ethics. If individuals become members and act on values that are antithetical to psychology, the profession can judge their behavior to be unethical and revoke their membership. Typically, ethics codes provide a common set of values that are expected to guide the work of the members of that profession when they are acting in a professional capacity, whether that capacity is practice, research, or teaching. These values are not optional. Rather, they represent the core values of the profession. Typically, one of those values is to enhance the welfare and development of the individuals and groups with whom those professionals work. In other words, abhorring the idea that psychologists or counselors might deliberately torture their clients or research participants derives, in part, from a fundamental value of the profession, which is to promote the welfare of others. We can judge the behavior of a psychologist who engages in behavior that violates this value as unethical.

PROFESSIONAL CODES OF ETHICS Many individuals are content to believe that adhering to a code of ethics that governs their professional behavior can solve all ethical issues. Professional codes of ethics can be found in a variety of areas: business ethics, medical ethics, legal ethics, and so on. These are largely the outcome of events occurring in the second half of the 20th century. In particular, professional ethics in psychology were strongly influenced by earlier developments in related fields, such as medical and biomedical ethics (K. S. Kitchener & Kitchener, 2009). This concern with the ethics of professional psychology had several historical roots: (a) as an indigenous moral concern within psychology, a concern that partly was fueled by controversial cases in psychology and the social sciences and moral complaints raised about the behavior of psychologists, and (b) as an extension of biomedical ethics, which was a reaction to the Nazi atrocities uncovered during the Nuremberg trials.

Internal Ethical Deliberation in Psychology One of the original motivating factors in developing a code of ethics apparently was the existence of numerous charges of unethical conduct leveled against psychologists in the 1930s (Hobbs, 1948), in particular issues concerning psychotherapy and consulting psychology. This resulted in the formation by APA of a Committee of Scientific and Professional Ethics in 1940, which investigated charges of questionable conduct. This led to the eventual formulation of a code of ethics in 1952, which extended beyond the original domain of malpractice to include more general ethical questions. Since then, the Ethics Code has gone through several revisions. Accompanying this historical development, numerous textbooks have been written on the Ethics Code and its interpretation. But many of these works focus exclusively on the Code as a set of moral rules (standards) and not on the larger conceptual and theoretical issues concerning the proper understanding and justification of these rules by means of ethical principles and ethical theory. 5

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Insofar as psychologists receive funding from the government, they are required (at least initially) to abide by the federal guidelines set forth in institutional review board (IRB) procedures. Hence, one of the sources underlying the emergence of ethics involved the internal history of psychology. Partly as a result of the recognition of several studies, especially, Milgram’s study of obedience in 1963 (Milgram, 1974) and Zimbardo’s prison study (Haney, Banks, & Zimbardo, 1973), psychologists were stimulated to reflect on the ethical foundations and implications of their research methods. This led to revisions in the professional code of ethics to include, more explicitly, ethical issues involving research. (More information on the development of the APA Ethics Code can be found in Chapter 2 of this volume.)

Biomedical Ethics and Federal Regulations One of the most important antecedents of psychological research ethics was biomedical research ethics, fueled by the Nuremberg trials and several controversial cases of biomedical research in the United States. As a result, a set of federal guidelines were created for research on humans, leading to the establishment of IRBs and the 1974 National Research Act, which authorized the National Commission for the Protection of Human Subjects in Biomedical and Behavioral Research to formulate the ethical principles that should govern the conduct of biomedical and behavioral scientists performing research on humans—the Belmont Report (1978). (See Childress, Meslin, & Shapiro, 2005. More information on the ethical issues leading to the development of ethical controls in research can be found in Volume 2, Chapter 16, this handbook.) At this same time, several individuals saw the need for a general set of ethical principles that would cover psychology and social science research. The Belmont Report (1978) set forth the principles of beneficence, justice, and respect, providing the philosophical basis for federal guidelines concerning institutional review. The report was, however, directly tied to biomedical ethics and said virtually nothing about psychology. The most famous attempt to construct a set of general ethical principles governing biomedical 6

research was set forth by Beauchamp and Childress (1979), who adopted the ethical principles of autonomy, nonmaleficence, beneficence, and justice. Although these provided basic sources for constructing a general account of biomedical ethics, neither spoke directly about the ethics of psychological research. Although several books (e.g., Diener & Crandall, 1978; Kimmel, 1988, 1996; Reynolds, 1979, 1982; Sieber, 1992) set forth accounts of a ethics of psychological research, these accounts pay insufficient attention to philosophical foundations and discussion of how ethical theory is related to issues of, say, deception. Similar remarks apply to works on the ethics of psychotherapy (e.g., Corey, Schneider Corey & Callanan, 2003; Cottone & Tarvydas, 2007; Koocher & Keith-Spiegel, 2008; for exceptions, see Ford, 2006; Knapp & VandeCreek, 2006) and discussions of the Ethics Code (Canter, Bennett, Jones, & Nagy, 1994; Nagy, 2000). K. S. Kitchener (1984, 2000) has provided the beginnings of such an account. Her model, like those of several other individuals (Beauchamp & Childress, 1979; Fox & DeMarco 1990; Resnik, 1998), employs the concept of middle-level ethical principles—for example, principles of autonomy, nonmaleficence, beneficence, and so on. This model was partially adopted in the 2010 revision of the APA Ethics Code. We believe that with suitable revisions, qualifications, and extensions, it has the potential to become the standard model for the ethical foundations of psychology.

What Is a Professional Code of Ethics? By the 1950s, the profession of psychology saw the need for and proposed a professional code of ethics. Like much of ethics, the primary focus was on setting forth norms or standards of conduct—what was unethical and hence to be avoided. In part, this was a device to police the profession and to avoid ethical charges of misconduct and legal action (APA, 1953). But, of course, there is more to a professional code of ethics than setting forth prohibitions. Are such professional codes of ethics really needed over and above general ethical rules such as don’t hurt others, don’t lie, don’t steal, don’t break a promise, respect others, and so on? Is there a

Ethical Foundations of Psychology

specific function or logical justification for codes of professional ethics? (See Bayles, 1989; Goldman, 1980; Koehn, 1994.) To answer this question, we need to look at what a profession is.

One consequence of the contract model is that multiple-role relationships seem to be problematic (K. S. Kitchener, 1988) because this would lead to several different functional ends being present and thus engender conflicts.

Professions A profession usually is institutionalized: It has a social and legal structure, dues, licensing practices, and typically a formal code of ethics. These in turn are based on role theory (K. S. Kitchener, 1988), which encompasses the idea that a professional (e.g., a physician, a teacher, a lawyer) has a certain function (role), some end state defining the goal of the profession—to heal the patient, to teach students, to protect the legal rights of clients. Along with this role come obligations and privileges. Similarly, the recipient of the services of the professional (a client, a patient) has a set of role duties and privileges: Patients follow the orders of the physician; students read the assigned text and take exams. A professional has specialized knowledge and expertise for which recipients engage him or her in an explicit or implicit contract. In some professions, a fundamental aim is to help the client so that the welfare or good of the client or the client’s desire is primary. Hence, in medicine, psychiatry, and psychotherapy, we have a combination of specialized knowledge and concern for the patient’s good (Siegler & Osmond, 1974). A useful way to view a profession, therefore, is in terms of contract theory (exchange theory). A professional aims to provide a particular service (benefit) to a recipient (client, patient, parishioner, student) who desires the service. In return, the recipient directly or indirectly compensates the professional for the service (typically by monetary payment). Thus, an explicit or tacit contract exists between the two parties. The professional, therefore, has a specific obligation to the recipient—to benefit a client—which he or she does not have to the general public. Certain behaviors on the part of the physician are incompatible with the function of the medical arts, which is to heal and produce health. Similarly, in psychotherapy, some behaviors (e.g., having sexual relationships with clients) are arguably incompatible with the role of the psychotherapist.

The Adequacy of Professional Codes of Ethics As we have indicated, many professionals appear to believe that to behave ethically, it is sufficient to follow the APA Ethics Code. Although we believe that such allegiance is laudatory and that the evolution of the various versions of the Ethics Code shows improvement in a variety of ways, several qualifications are needed. In fact, there are several reasons to believe that following the APA code is not sufficient for general ethical behavior (we ignore the issue of whether it is necessary): ■

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As several individuals have pointed out, some of the concepts and propositions in the Ethics Code are unclearly stated, ambiguous, or vague. One example is the recurrent phrase: “psychologists do not do so and so,” where what is meant is not an empirical generalization but a normative duty. Professional codes of ethics are incomplete: It is impossible for a code to cover all possible situations that will arise; hence, the current code has gaps. In this case, one can be following the code, but the code will be silent about a moral situation. Some other source must then be found. The Ethics Code sometimes requires judgment on the part of the psychologist (e.g., Standard 10.01a). An ethical code can have internal conflicts, that is, standards (directives) that are incompatible with each other (e.g., confidentiality can conflict with nonmaleficence). Ethical codes can conflict with each other and, if a person belongs to several different professional organizations, it would be impossible to follow both of these directives at the same time. Ethical codes can conflict with general ethical principles, religious views, and the law. In this case, one must decide whether to follow the code’s standards, obey the law, or abide by a general ethical principle. Although the APA Ethics 7

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Code allows for conflicts with its mandates and the law, it is silent about conflicts between its standards and more general ethical principles. Professional codes of ethics do not and cannot always provide complete and unequivocal directives when psychologists are faced with tough ethical decisions. Individual judgment, interpretation, common sense, and wisdom cannot, and perhaps should not, be avoided in many cases. We argue that what is needed is a broader conceptualization of ethical responsibility. In addition, we suggest that exclusive focus on decision making without nurturing the character traits that support good judgment and the motivation to act morally is insufficient. In addition, the Ethics Code itself needs to be justified. Surely, the standards were not proposed as arbitrary, subjective preferences of the various committees. But if not, then it needs to be clearly stated how the standards are to be morally justified. This justification necessarily involves questions about ethical methodology, with such questions belonging to the realm of metaethics (see discussion later in this chapter). We argue, therefore, for the need for something more general than professional codes of ethics, namely, ethical rules and ethical principles together with a model of ethical decision making (more information on ethical decision making can be found in Chapter 4, this volume). Before discussing this model, however, several preliminary issues need to be discussed.

THE FIELD OF PHILOSOPHICAL ETHICS When confronted with the question of what makes something an ethical issue, people often respond that it involves a determination of right and wrong. When considering the two case examples presented earlier, however, it becomes apparent that ethics involves more than just judgments about whether an act is right or wrong. In Case Example 1, the professional is faced with deciding between competing moral obligations or claims about what is right. Here, the professional faces an ethical dilemma, a problem for which no choice seems completely satisfactory, because there are good but contradictory reasons to take conflicting and incompatible courses 8

of action. The cases illustrate the inevitable need for psychologists to make ethical choices. In the most general sense, ethics is concerned with the question of what to do, what to seek, how to treat others; in short, how one ought to live. On the one hand, there is a first-person forward-looking perspective: What ought I to do? On the other hand, there is a third-person backward-looking perspective: Should the other person have done that? The first-person perspective is the one that most often bothers the ordinary psychologist and the third-person perspective is the one that most often plagues ethics committees. Several clusters of issues or questions make up the subject matter of ethics: ■

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Obligation: questions about what one ought to do, what one’s duty is, what is morally right. To whom or to what do we owe our obligations and duties? Moral value: What kinds of things in the world are morally good? Happiness? Autonomy? A good will? Rights: What moral rights does an individual have? What is the nature, justification, and extent of a right? Justice: What is a just action? Does it come from an institution, policy, or law? What is the nature of fairness and equality in the treatment of others and ourselves? Who (if anyone) is responsible for their actions (and character)? Who should be blamed and punished?

These four notions—obligation, moral value, moral rights, and justice—constitute what we can call the basic questions or problems of ethics. Ethical theories (normative ethics) purport to be able to answer these questions and solve these questions.

Ethics and the Law Before proceeding, a basic distinction between ethics and the law is necessary. Because psychologists are seldom trained in the language of ethics, confusion may exist between the relationship between ethics, the law, and psychology. In Case Example 1, the counselors are torn between being ethical and providing information the law could use to prosecute members of the

Ethical Foundations of Psychology

fraternity. Clearly, in this case, ethics and the law were not identical. First, laws frequently are concerned with behavior that has little or nothing to do with ethics. Second, laws may differ from city to city or state to state. Thus, in one state a psychologist can treat a 14-year-old without the consent of her parent, but in another state it is illegal. Furthermore, arguments can be made about laws being unfair, unjust, or immoral. In an earlier era, one of the arguments against laws that discriminated on the basis of race was that they were immoral and, therefore, ought to be changed. By contrast, some laws may be evaluated as “just,” and these are the ones in which ethics and the law usually overlap. Evaluating laws as moral or immoral suggests there is another perspective, an ethical one, from which they may be judged. Some of the difficulty in distinguishing what is legal and what is ethical derives from the fact that laws define which acts are right and which are wrong from the perspective of the body that established the law (e.g., legislature). Because ethics is also involved in evaluating whether acts are right or wrong, subject matter overlaps. As legislative bodies further attempt to control the work of psychotherapists through laws, the overlap will only grow. For example, since the early 1970s, the courts have taken an intense interest in the possibility that psychological tests lead to discriminatory practices against minorities, women, and individuals with disabilities (Bersoff, 1983). These court decisions often refer to some concept of fairness or justice embodied in the law, which is an ethical argument. This overlap is further complicated by the fact that when judges set precedents or interpret laws, they frequently give ethical arguments for their positions. As an illustration, both the majority and dissenting opinions in Tarasoff v. Regents of the University of California (1976) were argued from an ethical perspective. In fact, Levine (1988) suggested that “at its best law reflects society’s concepts of ethical duties both positive (‘thou shalt’) and negative (‘thou shalt not’)” (p. x). Because professional ethics and the law have areas of common concern, they probably can best be conceptualized as two overlapping circles that share a common intersection, as illustrated in Figure 1.1.

Ethics

Law

FIGURE 1.1. Ethics and the law.

The Subdivisions of Ethics If morals are a part of the human value system—the beliefs, desires, and behavior of individuals—they can be empirically studied. The study of morals as they exist is called descriptive ethics, whereas the study of morals as they ought to be is normative ethics. There are also discussions of ethics as applied, professional, or metaethics. Descriptive ethics. Descriptive (or empirical) ethics studies how people actually behave, what ethical values they actually hold, and what they believe about these issues. This is generally considered an empirical subject to be pursued following the usual canons of the psychological (and related) sciences. Psychologists study a great variety of questions and issues about the actual behavior and cognition of people as these relate to what we usually consider to be ethics. This would include, for example, studies such as the unresponsive bystander, moral development, altruism, the view of research subjects about deception, and so on. Normative ethics. By contrast, the attempt to identify what moral values people ought to hold has been the domain of philosophy and has been called normative ethics. Unlike psychology, it does not ask what moral ideals people actually hold but rather what moral ideals are better than others and why they are better. In other words, normative ethics involves judgments about what values are worth holding. It confronts questions of moral responsibility, such as when people should be praised, blamed, or punished for their behavior. Whereas descriptive ethics studies the “is” side of the is–ought distinction, normative ethics studies the “ought” side. Traditionally, different ethical positions have been divided on questions of what 9

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normative ethical principles are best to follow. That is, although, people have their own personal values and norms, the question is which values or norms should be relied on in making a decision? Which personal moral norms and values are really good or adequate ones to hold? Which are rationally defensible? Applied ethics. Applied ethics is concerned with the application of these normative principles to specific moral issues in concrete and particular settings (e.g., abortion, animal rights, capital punishment). In psychology, applied ethics would be concerned with the application of normative principles to issues such as the use of deception in psychological research, the violation of confidentiality in a counseling context, and so on. Professional ethics. In recent years, the field of ethics has turned its attention to the ethical issues of the various professions, for example, business ethics, medical ethics, and nursing ethics. Whereas applied ethics deals with a particular concrete moral issue, professional ethics deals with an entire set of applied ethical issues as related to a particular profession. Professional ethics concerns the moral issues that arise because of the specialized knowledge that professionals attain and how the use of this knowledge should be governed when providing a service to the public. Ethical rules or guidelines are set forth to govern the behavior of members of that profession because concerns about the ethics of psychology often are concerns about the ethics of the profession of psychology. Several professions have a formalized code of ethics, and membership in that profession or professional organization is contingent on agreeing to abide by that code, for example, the American Medical Association, law enforcement, the American Bar Association, and (yes) the Mafia. Metaethics. Metaethics is concerned with the theory of how one should do ethics: Are ethical propositions true or false? Are there objectively existing moral properties? If they are neither true nor false, what are they? What is the meaning of moral terms—for example, good or right? What kind of reasoning can be advanced in support of ethical 10

arguments—for example, can empirical evidence be used to support an ethical conclusion? Although psychologists may find discussion of metaethics abstract and sometimes arcane, these issues invariably arise in discussions of the ethical foundations of psychology. For example, if one subscribes to the tenets of logical positivism, ethical propositions would be neither true nor false but literally meaningless. What then is the cognitive status of the ethical propositions proposed in the Ethics Code? Are they literally cognitively meaningless? If those principles are cognitively meaningful, are they true or false? Are they empirically verifiable or confirmable? In short, issues in metaethics will arise in discussions of the ethical foundations of psychology. Later in this chapter, we will explicitly address the metaethical status of fundamental ethical principles. Before we do this, however, we need to briefly discuss the major theories of normative ethics because this provides the normative basis for ethical principles and the grounding necessary to discuss the ethical foundations of psychology. NORMATIVE ETHICS Several basic issues divide normative theories of ethics: descriptive versus normative ethics, egoism versus altruism, naturalism versus conventionalism, relativism, skepticism, subjectivism, hedonism, and consequentialism versus formalism (deontology). These issues constitute what can be called the initial stage of thinking about ethical issues. It is often one or more of these views that individuals are tempted to hold when they begin to reflect on the nature of ethics. These issues also are at the basis of disagreement among the principal theories of normative ethics. Since the very beginning of human culture, the interests of the individual have often conflicted with the interests of others and the group (society). Indeed, without society, it is questionable whether ethical principles would ever have arisen because there would have been little need for them. Ethics is fundamentally concerned with resolving disputes and debates between individuals concerning conflicts of interests. These debates arise when the desires and interests of one individual conflict with

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the desires and interests of others. Any society must have the social means of controlling the behavior of individuals and adjudicating such disputes. This is where the law enters or originally entered. Ethics thus at the most basic level deals with normative questions of how one ought to behave. This assumes that several courses of action are open to the individual and that the individual could or can choose any one of them. If the individual is deliberating about which action to perform, a norm indicates which action is permissible, preferred, obligatory, prohibited, and so forth. There are various types of norms: legal norms, customs and etiquette, moral norms, and so forth. A society will typically set forth a set of expectations covering all of these. For example, in the United States, one ought to drive on the right side of the road, men ought to wear a dark suit to a funeral, women ought to be married before they have children, one ought to serve white wine with fish, and so on. These norms specify what the culture takes to be the proper behavior and supposing individuals do not always follow this prescribed course of action, the norm indicates that they did something wrong and that it would have been better if they had done something else.

Descriptive Versus the Normative As these examples indicate, individuals deviate from norms to varying degrees and in various ways: Almost all people drive on the right side of the road, many men wear dark suits to funerals, most women are married before they give birth, and white wine usually is served with fish. These facts are to be discovered empirically perhaps using standard statistical techniques. But if it were discovered that the population abided by a particular norm only to a certain degree, say, 10%, would this invalidate the norm? For example, more and more men do not wear dark suits to a funeral. Is the underlying norm no longer in force? If most people cheat on their income tax return, does this invalidate the norm that one ought not to cheat on one’s income tax? The immediate reaction to many of these norms would be to question the legitimacy of the norm: Why, after all, should women get married before they have children? Why should one help others or

keep their promises? These questions concern the justification of (ethical) norms. It is fairly clear why one should be honest on one’s income tax return. Important sanctions are attached to breaking the law. But what sanctions are attached to a lie or to not being married before bearing children? And even if there were such punitive sanctions, would this justify the norm? Clearly not. A justification of a norm would show that the norm was legitimate, correct, binding, or worthy of respect. So what would justify a norm? Is it even possible to provide such a justification? A cluster of views regarding ethics invariably arises in discussions of the nature of ethics: egoism, relativism, hedonism, skepticism, and subjectivism. A discussion of these views may provide a convenient point of departure for discussing several more complicated normative ethical theories.

Egoism Versus Altruism First, psychologists are familiar with a view known as egoism, of which there are two varieties: psychological egoism and ethical egoism. Psychological egoism is a theory of human motivation. It is the view that every individual always pursues his or her own self-interest. This is an empirical psychological claim about all people, one concerning the ultimate motives underlying their behavior. It often is phrased as a deterministic thesis about the fundamental motivation of all individuals. In a moral conflict situation, therefore, the individual will always choose his or her welfare over that of others. In fact, according to this view, it is not psychologically possible for an individual to act in a genuinely altruistic way. Opposed to this view is a thesis held by several psychologists that individuals are able to act altruistically, that is to say, against their own self-interest and in the interest of others. Psychological altruism can be formulated as the claim that individuals sometimes act in an unselfish manner. Ethical egoism is not a psychological thesis but a normative one. It is the view that every individual ought to pursue his or her own self-interest. On this view, therefore, it might or might not be possible for an individual to act selfishly or altruistically, but the moral thing to do is for the individual to act selfishly, to pursue his or her own self-interest. By contrast, 11

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ethical altruism is the view that everyone ought always to act to benefit others instead of themselves. Many religious thinkers appear to entertain such a view, which may appear to lie at the heart of Christian ethics. In this context, a third view is universalism, which maintains that one ought always to benefit everyone—others and oneself—to the greatest extent possible. This is a view that utilitarians (see the following section) endorse, one in which one’s own self is considered along with that of everyone else—no more, no less. Utilitarianism, therefore, is committed neither to egoism nor to altruism but to a combination of the two. In at least one of its forms, it is committed to maximizing the greater amount of utility, no matter who gets it.

Relativism Controversy also exists around ethical relativism and ethical absolutism. These are not psychological views but rather are ethical views. Ethical relativism is the view that what is morally right (or valuable) is relative to the individual (or one’s social group). Hence, one and the same act can be right for one individual but wrong for another (or right for one group but wrong for another). As such, ethical relativism denies that everyone ought to follow universal and absolutely binding principles. “It all depends on the person” is the mantra of the relativist. The main argument supporting ethical relativism is that in order to decide what is morally right (valuable) and hence to make a moral judgment, it is necessary to have a standard or criterion of moral correctness. A standard is a property or condition the presence of which allows one to decide, determine, or justify one’s claim that a moral condition is present. But moral standards differ between individuals; hence, both individuals can justify their moral judgments by reference to their own particular moral standards, and all of these standards are morally valid. If there were only one moral standard, then everyone, in principle, would agree about what is morally right. An individual who believes in the existence of such an absolute or universal principle would be committed to ethical absolutism (universalism), the view that there is/are an absolute (nonrelative) standard(s) binding on all individuals. There 12

are, of course, intermediate positions in which there are several universal moral standards, for example, a belief in the universal validity of the Ten Commandments. An individual might, of course, defend relativism by endorsing a different view: Moral standards differ between individuals, and there is no way to determine which one is correct. This, however, is a view not of relativism but of skepticism.

Skepticism According to ethical skepticism, there are no universal, absolutely binding moral principles, and if there were, no one could ever know what they were. The mantra here is “who’s to say what is right or wrong?” For there to be a moral standard that is of some use, there must be a way of knowing that it is a moral standard and of justifying the claim. But there is no such way of coming to know this or justifying a belief in such a standard, for how could one recognize this standard; how could one prove that it existed? Popular support for this argument was proclaimed during the heyday of the logical empiricists: For a proposition or judgment to be cognitively significant, it either had to be a proposition of logicmathematics or one for which empirical evidence existed. But an ethical standard is not a proposition of logic, nor is it something that can be empirically confirmed or disconfirmed. Hence, there is no way to know of the existence of moral standards. Ethical skepticism is thus a view that has had considerable support from individuals who believe one should have empirical evidence for what one says. Opposed to this is the denial of ethical skepticism, the view that moral principles do exist and that one can know or justifiably believe them. How this is possible has always been a difficult question, but there have been several attempts to argue that such moral standards or principles can be justified and (perhaps) known. Unfortunately, we do not have the space here to discuss these arguments.

Subjectivism Closely related to ethical relativism is ethical subjectivism, the view that what is morally right (or valuable) is not an objective matter but a subjective one;

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it is a matter of some property or state inside of the individual. A popular version of this view maintains that morality is a matter of one’s personal emotions, feelings, or sentiments and nothing more. When an individual says something like “abortion is wrong,” this is just saying that the individual has an emotional reaction (e.g., disgust) at the thought of abortion. What sentiment individuals have seems to be at least partly a matter of their upbringing; hence, individuals will differ in their subjective reactions to things, a kind of ethical relativism. Moral values and moral rightness are lodged inside the individual—in his or her feelings or sentiments. “If I feel something is right, then it is right” is thus one way to express ethical subjectivism. Arguably, many psychologists appear to believe this. By contrast, ethical objectivism is the view that what is morally right (or valuable) is independent of the individual and his or her personal or internal beliefs, feelings, and emotions. Ethics is objective and binding on people no matter how they might personally feel about something.

Hedonism Hedonism usually is introduced in discussions of ethics. According to hedonism, pleasure and only pleasure is intrinsically good. This is a view about the nature of what is intrinsically valuable—what is morally good. A key question here concerns the nature of pleasure, whether for example it is just physical sensual pleasure or whether it might include the higher pleasures. As applied to ethical behavior, ethical hedonism maintains that everyone ought to pursue pleasure, whereas psychological hedonism is the view that pleasure and only pleasure is what everyone ultimately seeks. Psychological hedonism is thus a claim about the fundamental motivation of individuals. This is a view championed by Freud in his pleasure principle and by classical learning theorists in some of their views of drive reduction. Psychologists who have challenged psychological hedonism often come from a humanist or existentialist tradition, claiming there are higher motives than just sensual pleasure and that individuals sometimes are motivated to seek higher psychological states and experiences. It is typical for these

views to be combined with each other. For example, a popular and widespread view combines psychological egoism and psychological hedonism: People always seek to produce the most pleasure for themselves. The normative counterpart of this is that people always ought to produce the most pleasure for themselves. Similarly, ethical relativism and ethical skepticism have been combined in one view; individuals have argued that “everything is relative” because “who is to say what is morally right?” However, ethical relativism would seem to be the denial of ethical skepticism, not supportive of it (R. Kitchener, 1992). Ethical subjectivism has been a close ally of both ethical relativism and ethical skepticism (especially the latter) but again should be distinguished from them. Philosophers have always been concerned with the question of the nature of the good life and how one should attain it. It was the characteristic Greek view that individuals could reach this ultimate goal only as part of a larger social entity—the polis—of which they were an intimate part. There was, therefore, little if any conflict between the individual’s real interests and the welfare of the larger community. In short, as Plato argued in The Republic (Plato, trans. 1963), it pays to be moral because an individual can be happy in life and thus attain the ultimate state of well-being only if the individual is just and lives in a just society. This view was characteristically Greek, and widely shared among Greek thinkers. It was a fundamental part of Aristotle’s ethics, for example, but other important Greek schools of ethics, such as Stoicism and Epicureanism, also were committed to the notion that the individual’s attainment of wellbeing was tied up with his or her becoming a moral person, a view not uncommon to individuals theorizing about moral development. Although individuals appeared to differ about this process, ultimately they came to similar conclusions—the good life was one of living rationally and controlling one’s emotions. The Stoics also believed that a concern for the well-being of all human beings was developmentally built into human nature and that even though humans begin their lives as self-centered animals, they mature to the point at which they are 13

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concerned about all humankind; this constitutes a kind of natural law theory. With the rise of Christianity, the antithesis between egoism and altruism became much more pronounced. In modern times, especially in the Renaissance and Reformation, this issue became the focal point of ethical deliberation.

Naturalism Versus Conventionalism Another ancient issue of Greek moralists concerns the question of whether ethical principles are natural or are human conventions. Are ethical principles matters of objective nature or man-made laws, conventions, or customs? Some principles are simply matters of custom, of how certain cultures organize themselves and the behavior of their members. These are variable and specific to different cultures, such as having one wife versus several wives. Other principles are “set in stone,” being reflections of an underlying and independent natural order—for example, how procreation occurs biologically. To which category do moral principles belong?

Consequentialism Versus Deontology In post-Enlightenment thought, the philosophical debate about ethics turned on the question of the adequacy of consequentialism in relation to its historical rival—deontology. The term relates to the theory of obligation or duty—from the Greek word deion: What is the necessary or proper thing, what is required? Deontology is the view that there are fundamental human duties that are independent of their good or bad consequences. Some actions are morally right or morally wrong by virtue of certain inherent properties present in the actions themselves—for example, by virtue of their possessing or not possessing certain rational properties, such as universalizability, reversibility, and so on. AN OVERVIEW OF NORMATIVE ETHICAL THEORIES This section covers several normative ethical theories such as Aristotelian ethics, utilitarianism, Kantian ethics, prima facie ethics, contractarian ethics, and feminism. Other theories are only briefly mentioned. 14

Aristotelian Ethics The ethical theory of Aristotle (trans. 1989) has been one of the perennial options for a normative theory of ethics. It was a major contender in the ancient world (especially influential on the Stoics), and with its Christian assimilation by St. Thomas Aquinas it became perhaps the standard account of ethics in the Middle Ages. It provided the background for much of ethical theorizing in modern times and, after an eclipse, returned in the latter part of the 20th century as virtue ethics. Teleology. The fundamental assumption of Aristotle’s ethics is a claim about the nature of the world. Living beings are goal-directed systems: Every being has a natural end-state or goal (telos) toward which it is moving. This goal is tied up with a thing’s essence—its essential nature. Although the essence of something is present throughout its life, it is present to different degrees. A thing’s purpose is to attain its ultimate telos, thus actualizing its potentiality and realizing its essence. An acorn’s goal is to become an oak tree, a tadpole to become a frog, a child to become an adult. Life thus can be characterized developmentally as a structured kind of movement or process of change toward one’s ultimate purpose. In the case of humans, this ultimate purpose is built into our very biological being; hence, our ultimate purpose (our summum bonum or “highest good”) is biologically determined. It is not a matter of personal choice but rather is biologically fixed. Humans, therefore, do have a choice: They either can choose to realize this one essential nature or not. But they cannot choose a different purpose. The view that our ultimate purpose is a matter of personal decision and varies with the individual is an outgrowth of the Protestant Reformation and Enlightenment individualism (e.g., Kant) and was foreign to the thinking of Aristotle. Happiness. Every thing aims to reach its ultimate purpose in life; it is that for the sake of which everything else in life is done. It is the state of activity Aristotle called eudaimonia, which we standardly translate as happiness but which is perhaps better translated as a state of well-being (flourishing,

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prospering, living well). It is etymologically connected to living a “blessed life,” one the gods favor. Every natural species has a distinctive essence. Aristotle thus had a ladder of being with the lowest being inorganic matter, then living things, then animals, then humans, then angels, and then God. Each of these levels of life has a corresponding principle of life tied to different kinds of essences. Because of this, the highest good of humans—our eudaimonia—must be something that is unique to the human species, not possessed by animals, plants, and stones. Function. This account of Aristotle is tied up with the distinctive Greek concept of function. Everything (natural and man-made) has a function: The function of the physician is to cure sickness, the musician to play the lyre, the eye to see, the knife to cut, and so on. Humans also have a function, something they do. Just as knives cut and teachers teach, the function of humans is to engage in a certain kind of activity unique to humans. When something is functioning according to its design and functioning well, it has excellence. When we look at a beautiful mature healthy oak tree, it is flourishing. It has excellence and possesses well-being. What is human well-being? An answer must involve the highest good of humans, a unique function of the human species. Standard answers such as pleasure, financial success, being a statesman, are ruled out. It can only be a certain kind of rationality— living according to right reason. This is a combination of practical rationality (knowing how to live well in the world) and theoretical rationality (intellectual contemplation). Phronesis. To know how to live well involves the development of one’s character (ethos). Aristotle’s account here is what one could call a developmental type of theory of learning. Character consists of a set of stable virtues—internal traits or dispositions (similar to personality traits). These dispositions (e.g., honesty or courage) are manifested in certain kinds of action that are rational, emotionally appropriate, and sensitive to the social setting. This involves a practical knowledge or wisdom (phronesis) about how to act in a particular situation—a know-how or skill. The skillful archer knows how

to adjust his grip, the amount of strength to employ, and his aim and how to judge distance and wind conditions so as to best shoot the arrow at the target. This likewise occurs with the courageous person, the loyal person, the dedicated teacher, or the parent. This involves wisdom and judgment, something that cannot be pulled out of a book or encapsulated in a set of rules for child rearing. In a similar way, a wise individual learns wisdom from others, from actions coupled with correction and feedback. For Aristotle, therefore, the isolated individual cannot learn to be a good person without the benefit of others. This includes being a member of a good family and living in a good society The underlying virtues are excellences that any morally mature person can be expected to possess, traits such as wisdom, temperance, courage, generosity, self-respect, friendliness, and justice. Although people may disagree with his list, the core Aristotelian notion of a virtue ethics has become an increasingly popular theory of ethics (including in psychology), providing some inspiration for feminist ethics and the ethics of care.

Utilitarianism With the fall of the medieval worldview and its theocentric ethics, a new problem arose: How can one provide a foundation for ethics? As individuals began to raise skeptical objections to the received wisdom of the Middle Ages, answering these questions became problematic. Historical background. The reemergence of Greek skepticism in the 16th century together with the impact of the Protestant Reformation led to a new quest not only for the foundations of religion and epistemology but also for ethics. In the context of ethics, an old philosophical controversy reemerged, that between nature and convention: Was ethics based on the natural order in some way, or was it merely a matter of custom, convention, or social tradition? This issue, in turn, led to a debate between two conflicting views about the foundations of ethics: natural law theory and social contract theory. Natural law theory maintained that morality was natural, built into human nature as part of the very 15

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fabric of man’s being. On the other hand, many individuals maintained that morality is tied to the social conventions of one’s larger society. Being moral was not part of human nature but rather imposed on humans by society. This view was part of the social contract theory of individuals such as Thomas Hobbes (1651/1994), who argued that conventional moral rules are the result of an agreement between individuals and endorsed by the sovereign. Along with this tradition emerged the sentimentalism of David Hume (1739–1740/1978), who argued that the basis of ethics was not reason but feeling. A spectator observes an individual (the moral agent) and his actions in relation to another individual (the recipient of the action). This observation causes in the spectator a particular type of emotion, approval or disapproval, which is pleasurable or painful. This feeling of approval is based on a kind of inborn sympathy present in each individual. Hume’s theory of ethics and metaethics thus is based squarely on a naturalistic, psychological theory of ethics. In the 18th century, the conflict between natural law and social contract theory gave way to what is one of the major central moral philosophies of modern times, utilitarianism. The ethical theory of utilitarianism is the major version of consequentialism. The obligatory nature of an action is therefore derivative from its good or bad results. It is best known by the statement, “One should always act so as to produce the greatest benefit for the greatest number of people.” Consequentialism distinguishes two kinds or senses of “good”: instrumental good (bad) and intrinsic good (bad). Something is instrumentally good if it has good consequences. But ultimately, there must be something that is intrinsically good— good in and of itself. The major contenders usually have been pleasure and happiness. Some consequentialists have been individualistic, claiming that an action is good (hence something one ought to do) if it leads to, say, pleasure for the individual. This would be a version of hedonism and egoism. But another version of consequentialism is not egoistic but rather considers the good of others. This view usually is associated with utilitarianism. Utilitarianism has had several proponents, but the 16

most famous were Jeremy Bentham and John Stuart Mill. Jeremy Bentham. According to Bentham (1789/1996), individuals naturally seek pleasure. In addition, hedonism is the principle of obligation: Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fashioned to their throne. They govern us in all we do, in all we all we think; every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words a man may pretend to abjure their empire; but in reality he will remain subject to it all the while. (Bentham 1789/1996, p. 11) This is psychological hedonism, and Bentham thought it was a fundamental law of human motivation. But Bentham also believed that individuals ought to seek pleasure because pleasure is what is good—intrinsically good. Where Bentham marked a break with the past was with the belief that because pleasure is good in itself, it does not matter whose pleasure is involved. Consequently, individuals ought to seek to produce pleasure—the most pleasure—when they act because, other things being equal, the greater the amount of pleasure produced, the better; it does not matter whose pleasure it is. So, theoretically, if I could produce the most pleasure by acting against my interests, I ought to. Bentham was thus concerned with maximizing utility, which he equated with happiness (pleasure). In fact, he proposed several rules (calculating algorithms) to consider in measuring how much pleasure would be produced by an action: the intensity of pleasure, the duration of the pleasure, the certainty of the pleasure, the remoteness of the pleasure, the fecundity (fruitfulness) of the pleasure, the purity of the pleasure, and the extent of the pleasure (the number of persons affected by it). Bentham’s calculus of pleasure was supposed to be a quantitative way

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of measuring the total amount of pleasure produced by an action; the respective numerical values would automatically determine what action was the one to be performed. John Stuart Mill. John Stuart Mill (1861/1979) agreed with many of the tenets of Bentham’s theory of utilitarianism, but a key difference concerned the nature of utility. Utility was equivalent to happiness for both of them, which in turn was identified with pleasure. But Mill thought that Bentham failed to distinguish various kinds of pleasure. There is not just one kind of pleasure but what we can call higher and lower pleasures. An animal experiences sensual pleasure and so, too, do humans, but humans are apparently unique in being able to experience the kinds of pleasure coming from intellectual pursuit, esthetic enjoyment, and friendship (i.e., higher kinds of pleasure). So Mill did not believe that one can quantify one kind of pleasure and hence determine the outcome of an action by numerically calculating its overall quantity. Act versus rule utilitarianism. Until the 20th century, the standard interpretation of Bentham and Mill’s utilitarianism was called act utilitarianism. According to this theory, a particular action is the action one ought to perform if it produces more pleasure (better consequences) than any other particular action one might have performed. Such an account has little room for general principles or rules. This is different from a later variety of utilitarianism—rule utilitarianism—which maintains that an action is the action one ought to perform if it is an instance of a rule and the following of the rule produces or would produce more good consequences than any other rule that would be relevant to that situation. For example, breaking client confidentiality in a particular situation might produce a certain number of good (bad) consequences. But there is also the general rule (policy) of keeping client confidentiality and the good or bad consequences of following such a general norm. So the issue shifts from particular actions to general rules, and the question becomes one of which rule has greater utility. On a rule-utilitarian model, professional codes of ethics contain a set of general rules prohibiting,

prescribing, and permitting certain kinds of behavior. The justification for following a particular rule in a professional code of ethics would be that doing so produces better consequences than following any alternative rule. Thus, the justification for an entire professional code of ethics would be that it produces better consequences than any competing professional code of ethics. The justification of a particular action would involve an appeal to the consequences of the rule in a professional code of ethics of which the action is but an instance. It is the basis for the principle of beneficence and nonmaleficence to be found in the current Ethics Code.

Kantianism Utilitarianism is the paradigm case of consequentialism. It is fundamentally opposed by the school of ethical deontology, which denies that consequences are what determine whether an action is obligatory. Kantian ethics is concerned with advocating absolute, unconditional duties (prohibitions) against lying, killing, and so on. The basis of such absolute duties derives, Kant thought, from the moral agent’s rational nature pure and simple, by virtue of one’s unique nature as a universal lawgiver (prescriber). Kant’s formalistic ethics. Kantian deontological theory of ethics claims that to decide whether an action is ethical, one need not consider the actual consequences of the action but rather one need only to reflect on the proposed action and rationally evaluate its moral correctness by seeing whether it possesses certain formal properties. Because of Kant’s commitment to the centrality of rationalism (as opposed to empiricism) in determining what one ought to do, it is the inherent rational properties of action that are crucial. Logic deals with the formal aspects of thought and judgment, whereas the empirical aspects concern its matter or content. Kant’s theory of ethics is thus primarily a rationalistic theory of ethics, although to apply it to actual human affairs, the empirical aspects of it also must be considered. The fundamental ethical question is how should I act? This question is to be answered by pure reason itself—practical reason. But how can reason, simply by mentally inspecting a contemplated action, come to a decision about whether the action is morally 17

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right or wrong—a duty or obligation? Kant’s answer is that an action is morally right or wrong if it possesses or lacks a certain kind of logical consistency and coherence. According to Kant, whenever I act, my action falls under a maxim, which is a description of the action, the circumstances of the action, and my purpose in acting. For example, suppose a psychologist has committed herself to maintaining the confidentiality of a client, but the client has divulged that he is HIV-positive and refuses to tell his partner. The psychologist is contemplating breaking confidentiality to inform her client’s partner. The maxim of the action would be as follows: A psychologist, who has committed to maintaining confidentiality, may violate confidentiality if it prevents the spread of AIDS. Kant’s theory then asks the person to reflect on this maxim and to determine whether it is possible for such a personal maxim to be a universal law that everyone would follow. This sometimes is called the test of universalizability. The other correlative concept is reversibility: Could I will that the respective roles be reversed? It would seem to most people that the action was wrong because its maxim cannot be universalized. If it were to become a universal practice, the very concept of confidentiality would cease to be. The psychologist could not consistently will it because she could not will her therapist to break confidentiality with her if the roles were reversed. In short, the maxim fails certain rational tests, and hence the action is impermissible. The good will. What does it mean to say the maxim is not universalizable or reversible? Kant’s answer to this question is complex, but it hinges on his claim that the moral worth of an action is crucially tied up with one’s will—with what it is possible to will (this is the formalistic part of his ethics). Kant’s fundamental claim is that nothing is morally good except a good will. One can do what is morally right, Kant says, but the question of moral worth depends on the underlying reason. Acting in accordance with duty is doing what is right, but this is different from acting from duty, where one does what is right because it is right, one’s motive being to do one’s duty because it is one’s duty. 18

To determine what one’s moral duty is, one must apply Kant’s test of the categorical imperative. Is it possible for an individual to will that one’s maxim become a universal law of human nature? The moral agent must be able to answer this test in a certain way for the action to be of moral worth. A categorical Imperative is distinguished from a hypothetical imperative, which specifies how one should act if one has a certain desire. It ordinarily has an if–then form; for example, if one wants to live a long life, then one ought to quit smoking. Kant is insistent that moral worth and moral correctness is not tied up with an individual’s personal desires, wants, feelings, or interests and hence with the satisfying consequences of an action. These internal psychological, emotional states are not what make something ethical. Such psychological states vary from individual to individual and change so often that they cannot be the basis of the objectivity, rationality, and necessity of a moral principle. Moral principles must have a kind of universality, necessity, force, and constraint that a law has, in this case not a law of science but an underlying moral law. The moral lawgiver. Our legal norms are provided by lawgivers and are enforced by society. They are objective, universal, and necessary. They constrain our behavior, forcing us to behave in certain ways; good laws can evoke respect in us. By analogy, moral laws have similar features. However, in this case the lawgiver is a moral agent who prescribes laws to himself. The moral agent, Kant says, is autonomous, in this case an autonomous lawgiver. But this is not a personal, subjective matter. This is because reason, which is the basis of the moral law, is universally present in everyone and operates according to universal and necessary laws. This is not to say that everyone always acts rationally; it is to say that acting rationally is an ideal state of which normal adults are capable. Reason follows a set of rational principles, rules, or laws. A subset of these rational laws is moral laws. Moral agents can become aware of these moral laws and come to see their nature and validity and hence respect them. These moral laws constrain our more animalistic inclinations and natural passions and lead us to live moral lives. For Kant, therefore, a

Ethical Foundations of Psychology

moral agent obeys such a self-given law because it is the moral thing to do. The categorical imperatives. A categorical imperative is an unconditional command or imperative. It says “do so and so.” Kant gave several versions of the categorical imperative, but these basically boil down to three versions. The first one commands, “Act only in accordance with that maxim through which you can at the same time will that it become a universal law” (Kant, 1996a, p. 73). This is sometimes called the test of universalizability: Can you universalize your maxim? Whether you can or cannot does not depend on any of the consequences of doing so but rather on the question of whether you can do so consistently. If a maxim fails such a test means it is not permissible. A maxim can fail the test in two ways: It can be conceptually inconsistent and volitionally inconsistent. For example, Kant claims you cannot universalize telling a lie because such a universal practice would destroy the entire concept of a lie. Similarly, you cannot will the maxim that no one help others in need if you would sometimes need help from them—this kind of inconsistency (making an exception for yourself) fails the test of reversibility. Kant gave two other major formulations of the categorical imperative: “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means” (Kant, 1996a, p. 80). In short, one should never treat any person merely as a means to some future, desired state. Unlike objects, people are intrinsically valuable, possessing dignity and worthy of respect (because they are free rational agents). So, one cannot treat research subjects as mere “subjects” the way some people would treat laboratory animals; you cannot just use them but must treat them as an end in themselves. The final version of the categorical imperative states, “Act in accordance with the maxims of a member legislating universal laws for a merely possible kingdom of ends” (Kant, 1996a, p. 88). By “kingdom” Kant says he means “a systematic union of different rational beings through common laws” (Kant, 1996a, p. 39). This would be a community (commonwealth) of rational beings who are intrinsically

valuable and who as free rational agents ultimately choose their own end or purpose in life. So such a commonwealth would be a community in which everyone was free to choose and follow their ultimate purpose in life. Hence, the question is what could I legislate as a set of universal laws governing all of these rational agents in such a hypothetical kingdom or moral community? For one thing, I could not be paternalistic to them, I could not interfere with their choosing their own ends (given certain moral constraints) and interfere with their pursuit of such ends, and I would assist them in this pursuit. We can summarize Kant’s views in the following way: We should always act in a way that, if everyone did so, would result in a community of free and equal members, each of whom would be in the process of realizing his or her own purposes as well as furthering the aims of his or her fellow humans. From the principle of the categorical imperative, Kant derived two basic duties: to perfect oneself and to further the happiness of others. From each of these, in turn, he derived a set of more particular duties, and from these in turn an account of how one applies these to concrete situations. This is represented in Figure 1.2 (Kant, 1996b). Categorical Imperative

Duty of Self-Perfection

Duty to Promote the Happiness of Others

Avoid suicide, lying, carnal self-defilement, intemperance, servility, and avarice

Avoid envy, malice, arrogance, defamation, ridicule, and ingratitude

Develop soul, spirit, body, and moral powers

Develop beneficence, gratitude, sympathy, and respect

Application to particular situation

Application to particular situation

FIGURE 1.2. Kant’s hierarchical model. 19

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Kant’s theory thus involves four levels, proceeding from the most general (at the top) to the most particular (at the bottom). We will use a similar model in our account of the ethical principles of psychology.

Ross’s Theory of Prima Facie Duties A deontologist believes we have duties that do not depend only on consequences. Although Kant’s theory is the prime example of such a theory, other kinds of deontological theories differ from Kant’s. The main example of such an approach is that of Ross (1930), whose ethical theory has been particularly influential (especially in applied ethics). It provides much of the foundation for our model of ethical decision making. Ross believed that ethical principles govern our moral duties, but unlike many other philosophers, he believed there were several of such principles, thus meaning that we had several fundamental duties. He thought it was obvious that we had such duties—he referred to this as intuition—and that common-sense morality recognized them. Ross (1930) distinguished two kinds of duties, what he called prima facie duties and our actual (unconditional) duty. Common-sense morality recognizes that there are prima facie duties. The term prima facie means “on initial view” or “first appearance.” It is a legal term, referring to making a case against an individual in a court of law. An attorney has to make a case, and then another attorney can rebut the case by presenting contrary evidence. If this rebuttal is successful, the initial case has been shown to be invalid. It has been defeated by an additional consideration. Ross believed moral duties had the characteristic of being prima facie binding on us. Such duties are determined by features present in our moral situation (e.g., a man promises to take his son to the airport). But sometimes additional considerations have to be made, other features of the moral situation that might be brought to bear on our decision that would undercut, defeat, or nullify the prima facie duty (e.g., his wife is very sick and he has to tend to her).1 An actual duty is an act “which 1

would be a duty proper if it were not at the same time of another kind which is morally significant” (Ross, 1930, p. 19). Ross (1930) set forth a list of basic prima facie duties: to keep promises and not lie (fidelity), reparation, gratitude, justice, beneficence, self-improvement, and nonmaleficence. Most of these are self-explanatory. We have prima facie duties to be nonmaleficent to others (not to cause them pain or harm), to be beneficent (to produce good for them), to be just toward them, to express gratitude for actions they have performed, to repay debts we have incurred toward them, and so on. Ross (1930) believed that some of these prima facie duties were generated by past interactions between individuals: Fidelity rests on a previous act of mine (e.g., making a promise), reparation on a previous wrongful act (e.g., taking someone’s property), gratitude for an act of another individual toward me (e.g., a service of some kind). Other prima facie duties rest on certain kinds of general facts or situations: the possibility of a distribution of happiness according to merit (justice); facts about the existence of other beings in the world whose condition involves pleasure, happiness, or intelligence; the ability to improve (beneficence) or worsen (nonmaleficence); facts about my own present virtue or intelligence. We have, therefore, a long list of prima facie duties generated by virtue of a variety of features present in current circumstances. If there is only one prima facie duty evoked by our current moral situation, then presumably it becomes our real (unconditional) or actual duty. But typically complex features are present in our moral situation that generate not one but many prima facie duties. And these can conflict as noted in the earlier examples of promises made to a son and to a sick wife. Each generates a different prima facie duty. In a situation of conflict between prima facie duties, we have to weigh the importance of these conflicting duties and decide what to do; for example, the man’s actual duty would seem to be to take his wife to the hospital because this would seem a more important prima facie duty.

The term prima facie is not a good choice because a prima duty is not something that “appears to be a duty but really is not”; it is a duty but a duty only to a certain extent (it is a pro tanto duty).

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In such a situation of conflicting prima facie duties, how should the decision be made? No higher order principle would seem to be available that could be consulted for an answer. Ross’s answer is that one has to carefully contemplate the total situation (along with all of the complex duty-making characteristics) and then form a judgment of what one should do, a judgment about which prima facie duty seems more binding. In a famous passage he said, When I am in a situation … in which more than one of these prima facie duties is incumbent on me, what I have to do is to study the situation as fully as I can until I form the considered opinion (it is never more) that in the circumstances one of them is more incumbent on me than any other; then I am bound to think that to do this prima facie duty is my duty sans phrase in the situation. (1930, p. 19) This “all things considered” judgment is not something that is the outcome of consulting a principle; it is the result of a kind of perception or immediate cognition of the total moral situation. It is at this point that Ross’s study of Aristotle comes into play, for it was Aristotle’s view that in acting, one had to make moral judgments about the concrete situation, judgments that issued from practical wisdom (phronesis). Such an Aristotelian view about practical reasoning lies at the basis of much of the recent discussions of particularist approaches to ethical decision making (sometimes called situationism or contextualism). These approaches often are characterized as being antitheory or antiprinciplism, meaning that consulting and following abstract ethical principles is not sufficient (or necessary) to making good ethical decisions.

Contractarianism Contractarianism is a descendant of the social contract theory of Hobbes and has two versions: Hobbesian contractarianism and Kantian contractarianism. John Rawls (1971) is the best-known Kantian contractarian, who attempts to establish a

set of normative principles involving justice on the basis of what individuals would agree to in an original state of nature (the original position) under “a veil of ignorance,” in which no one knows what their social position, abilities, and the like will be. In this condition, they must choose the principles of justice that will be in force in one’s actual world. One of the most influential features of Rawls’s theory of justice is his method of reflective equilibrium. According to Rawls (1971), the initial step in constructing an ethical theory is to collect data about our preanalytic moral judgments concerning the morality or immorality of particular actions. Next, a hypothetical set of moral principles is inferred that would account for our “considered judgments” (we ignore the distinction between wide and narrow reflective equilibrium). We then may see what moral predictions follow as a consequence of these principles, rejecting some initial judgments, which are judged to be not reliable, and accepting new ones. Modifications or additions are added to bring the set of principles into balance with each other and with our set of considered moral judgments. Initial moral judgments and moral principles thus are revised until a stage of reflective equilibrium between them is reached. The other view is Hobbesian contractarianism, in which the goal is to derive normative principles involving justice from an original position in which nothing normative is presupposed, except the notion that the agents are rational agents attempting to maximize their utilities (preferences, desires). The main philosophical representative of this theory is David Gauthier (1986), although other social scientists also advocate a similar position. Beginning with the prisoner’s dilemma,2 Gauthier attempted to show that certain kinds of prisoners’ dilemmas will necessarily result in cooperation, promise keeping, and justice. In short, according to this model, it is possible to show that it is rational to engage in moral behavior—understanding “rationality” in something like an economic sense. If such a proposal were plausible, one would have a naturalistic ethics for the social sciences.

2

The prisoner’s dilemma is a non-zero-sum game in which both players have the incentive not to cooperate independently, no matter what, but collectively they would be better off if they did cooperate. There is thus a tension between individual incentive and collective incentive.

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Neofeminist Ethics Unlike the prior theories, feminism has not been dominated by a single philosopher. Rather, until recently, it was a loosely connected series of articles and books ranging from the ethics of lesbianism to the ethics of care and influenced both by philosophers (Noddings, 1984) and psychologists (Gilligan, 1982). According to Tong (1993) feminist ethics includes much of what traditional ethics includes, addressing questions such as the following: Are certain actions required, forbidden, or permitted? Are the consequences of actions good or bad? Are the motives behind actions other directed, self-directed, or both? Although feminist ethics proposes that it covers all of the questions of major moral philosophy, it also claims to go beyond it—a kind of metaethical critique of the way moral philosophy has been done. In 1993 a group of psychologists met for a 4-day working conference in an attempt to summarize and explicate the basic assumptions of feminist ethics on the basis of prior work of feminist scholars. They arrived at nine tenets of feminist theory of psychological practice (Worell & Johnson, 1997). Brabeck and Ting (2000, pp. 5–6) summarized these tenets into five broad themes: (a) the assumption that women in their experience have moral significance; (b) the assertion that attentiveness, affective response, and subjective knowledge can solve moral issues; (c) the belief that feminist ethics is engaged in the power dynamics inherent in context; (d) the view that a feminist critique of male oppression must be accompanied by a critique of racist, classist, and homophobic distortions; and (e) the injunction that action directed at achieving systematic social justice is required. Feminism can be divided into an early and late period. The early era was dominated by the ethics of care. This is a kind of compassion. In essence, it goes beyond codes of ethics because it is not difficult to identify individuals who satisfy the minimum standards of the code but never treat students or research participants with compassion and care (K. S. Kitchener, 2000). Other feminists maintain that although Gilligan’s (1982) and Noddings’s

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(1984) virtue ethics are important, their theories remain fundamentally individualistic and apolitical because they do not consider personal relationships within families and the institutions and structure that create them as being morally important. The second era in feminist ethics moved beyond Noddings (1984) and Gilligan (1982); for example, Jaggar (1991) argued that any feminist approach must include action to achieve equity for women within existing political, social, and economic structures. If these structures cannot allow for equity, they must be changed to be made more just. Furthermore, this second generation of feminist ethics focused on a concern for all oppressed people, not just women, and asserted that feminists should work to empower all those who are oppressed and strive to reduce the effects of racism, sexism, classicism, and homophobia as well as ageism and antiSemitism (Brabeck & Ting, 2000; Lerman & Porter, 1990). More recently, neofeminist ethics as well as multiculturalism have led to a general concern for an ethics of social justice. The concept of social justice has seen a renaissance in recent years, called advocacy counseling by the American Counseling Association (ACA). The ACA endorsed 18 domains representing skills that counselors need to develop to become social change agents. This led to a document developed by Sue, Arredondo, and McDavis (1992) that proposed competency in three areas: awareness of biases and assumptions, awareness of the client’s worldview, and awareness of intervention strategies that were culturally appropriate. Although advocacy counseling was a term used by the ACA, the term social justice may be preferable because it has broader implications for inventions that involve research, supervision, and teaching. Vera and Speight (2003) suggested that “a social justice perspective emphasizes societal concerns, including issues of equity, self-determination, and social responsibility” (p. 254). This perspective includes how advantages and disadvantages are distributed in society and stresses how a commitment to social justice means expanding professional roles beyond individual counseling. Clearly, these ideas spring from the work of feminist scholars who have

Ethical Foundations of Psychology

strongly advocated for a more political analysis of oppressed groups. In fact, Brabeck and Ting (2000) wrote that feminist ethics required action directed at achieving social justice, extending the responsibility of psychologists and others beyond merely individual work to advocacy, and intervening at the community or political level. It involves taking action and educating individuals to opening possibilities, and to act with value and respect for individuals and their group identities in all aspects of their work (Fouad et al., 2004). More information on social justice in psychology can be found in Chapter 3 in this volume. Clearly, neofeminist ethics and social justice theory go beyond the Ethics Code. They are based on the principles of beneficence and justice because acting in a socially responsible way includes a duty to challenge an injustice when it exists. They require opposing community standards when such standards are unjust. In addition, if some people do not receive a fair share of life’s benefits, not because of their own actions but because of the social environment, then the social system is an unjust one and ethical individuals who are committed to contributing to others’ welfare have a social responsibility to change it. As Prilleltensky (1999) argued, Psychological problems do not exist on their own, nor do they come out of the air, they are connected to people’s social support, employment status, housing conditions, history of discrimination, and overall personal and political power … promoting complete health means promoting social justice for there cannot be health in the absence of justice. (p. 99) From this perspective, the target of intervention in social justice work is the social context. Clearly stemming from the work of neofeminists, mental health professionals are required to consider the welfare of others and to take an expansive view of ethics. It is not enough to do no harm; one must try to remove the harm that already has been done. One must work to benefit others by refusing to accept human suffering and exploitation, and this

requires working for the liberation of oppressed people.

Comparing the Theories of Normative Ethics We have presented a succinct overview of what we consider to be the major theories of normative ethics. These theories provide an answer to the question of what one ought to do and what things are (morally) good. The traditional view sees the task as consisting of proposing and rationally defending a set of principles—a theory—which provides an answer to all the moral questions concerning one’s behavior, attitudes, and character. Theories of normative ethics belong to the realm of common sense or public morality: They purport to be principles that apply to any ethical situation, universal in scope and application. Presumably, therefore, they could be applied to various professional organizations, providing a foundation for indicating morally appropriate behavior for members of that profession. This, of course, would be true of the profession of psychology. What then is the rationale for having professional codes of ethics? Although we have written of ethics as being concerned with principles concerning the normative appropriateness of certain kinds of actions, we need to distinguish two different functions of ethical principles: as decision-making procedures and as a criterion of normative correctness. Ethical norms can function as guidelines or rules for acting in the future and prescriptions concerning what one ought or ought not to do when the action in question is a concrete, particular action such as never lie, always pay your taxes, drink in moderation, and so on. When ethical principles function this way, they constitute a decision procedure for determining an outcome. Professional codes of ethics such as the Ethics Code can be viewed in this way. A professional organization may prescribe fairly concrete actions one may (or may not) perform: One must not violate confidentiality, one must always have subject consent to participate in an experimental study, and so on. These are concrete duties constituting a set of “commandments” analogous to the Ten Commandments.

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On the other hand, normative principles may function in a somewhat different role: They specify what it is that makes an action obligatory, good, dutiful, just, and so on. A utilitarian maintains this is precisely what the principle of utility is: It is a principle or criterion specifying what makes an action normatively correct. When someone questions the ethicality of a particular entry in a professional code, one may appeal to a normative principle to justify the inclusion of this code rule: It is what makes the rule ethically justified, like forbidding sexual relations with clients, because of the principle of nonmaleficence to the client. It is to be expected that most professionals will consult and follow the professional code of ethics without question. But when a question arises about what warrants its inclusion in the code, when two items of a code conflict, or when a code is silent about the particular ethical area, that is when ethical principles may be brought to bear on these questions. Therefore, ethical generalizations of various kinds constitute a hierarchy, one involving various levels of generality with ethical rules rationalized by normative ethical principles. A MODEL OF ETHICAL DECISION MAKING3 In setting forth the ethical foundations of psychology, we have suggested that the basic problem of ethics involves ethical decision making: How should one determine what one morally ought to do? In the context of the professional psychologist, the question is how the professional psychologist should determine what he or she ought to do. Hand in hand with these forward-looking questions are questions of moral evaluation: Did the person do what was morally right? And whether the answer is yes or no, it requires a “because.” This is a question of the moral justification of a course of action. Ethical decision making thus has two sides. A brief discussion of the Ethics Code, its origin and rationale, led us to the conclusion that professional responsibility requires adherence to the code but that the Ethics Code requires, in principle, 3

moral justification: There are (or should be) good moral reasons for the Standards of the Ethics Code. Surely, they are not arbitrary and capricious. Just as clearly, however, any such justification must involve considerations external to the code, considerations involving the broader field of philosophical ethics. After surveying the general field of philosophical ethics, making several distinctions, and introducing several entry-level moral positions, we set forth a brief survey of the major theories of normative ethics. These normative theories are the ones traditionally advanced as possible accounts of ethical justification and hence are available as potential ways to justify the Standards of the Code. We have not yet explicitly discussed the initial question of ethical decision making. We now turn to this question: What is a plausible model of ethical decision making? Elsewhere we (K. S. Kitchener & Kitchener, 2009) have proposed a multilevel model of ethical decision making and justification. To provide a basis for ethical decision making, in the material that follows we first distinguish between the two levels of moral thinking: the immediate plane and the critical–evaluative plane. Second, we suggests that ethics codes and more general ethical principles such as “do no harm” constitute the foundations for the critical evaluative level of reasoning. Third, we offer suggestions for decision making when normative ethical principles conflict, and fourth, we explain how this process is justified.

Overview The model has two levels—the immediate level of particular concrete moral behavior and the critical evaluative level—and four sublevels in the higher level: moral rules (code), ethical principles, ethical theory, and metaethics. The first level engages in concrete moral behavior and judgment. This is typically a relatively automatic response, involving little if any reflection. The critical evaluative level comes into play when an individual must reflect on what to do before actually making a judgment or performing a (moral) action. It has four tiers.

This section is based in part on K. S. Kitchener (1984) and K. S. Kitchener and Kitchener (2009).

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It begins with moral rules, which can be used to make conscious decisions and to evaluate the behavior occurring at the immediate level. This is the level of the enforceable standards of the APA Ethics Code. The next plateau is ethical principles. These are more general than moral rules and provide guidelines for resolving conflicts involving moral rules and providing justification for the rules. The third is the plane of ethical theory. Here are the traditional theories of normative ethics: utilitarianism, deontology, virtue theory, contractarianism, natural law theory, natural rights theory, perfectionism, the ethics of care, and so forth, which perform the function of grounding moral principles. Finally, at the last tier is metaethics, an abstract level of reflection on the other levels, allowing one to come to a decision involving the adequacy of lower order theories, principles, and rules.

Figure 1.3 diagrams this model. At the lowest level—the immediate level—judgments and actions are based on information about the moral situation and our ordinary moral sensibilities and virtues. Our ordinary moral sense is based on a combination of what we have learned about being moral over a lifetime and the development of our moral character (much in the way Aristotle suggested). In ideal circumstances, it predisposes us to act in morally appropriate ways and leads to sound ethical choices, but in ambiguous or confusing cases, it may not. When ordinary moral values fail to provide guidance or when we must evaluate or justify ordinary moral judgments, the components of the critical evaluative level can be called on to help in decision making and justification.

Metaethics

Ethical Theory

Level 2: Critical Evaluative Level Ethical Principles

Ethical Rules

---------------------------------------------Level 1: Immediate Level

Particular Cases

Situational Information

Ordinary Moral Sense

FIGURE 1.3. A model of ethical decision making. Adapted from “Intuition, Critical Evaluation, and Ethical Principles: The Foundations for Ethical Decisions in Counseling,” by K. S. Kitchener, 1984, The Counseling Psychologist, 12, pp. 43–55. Copyright 1984 by Division of Counseling Psychology of the American Psychological Association. A revised version appeared in “Social Science Research Ethics: Historical and Philosophical Issues,” by K. S. Kitchener and R. F. Kitchener, in The Handbook of Social Science Research Ethics (pp. 5–22), edited by D. M. Mertens and P. E. Ginsberg, 2009, Thousand Oaks, CA: Sage. Reprinted with permission of Sage Publications, Inc. 25

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Ethical rules, such as those stated in the Standards of the Ethics Code, for example, don’t discriminate (Standard 3.01), don’t sexually harass (Standard 3.02), don’t engage in multiple relationships (Standard 4.05), maintain confidentiality (Standard 4.01), don’t fabricate data (Standard 8.10), and so on constitute the first tier. Ethical codes are grounded in ethical principles, the Ethics Code’s Aspirational Principles, which make up the second tier. These items should be consulted and considered when problems arise concerning ethical rules. The problems stemming from the inadequacy of professional codes may be resolved by reference to these higher-level principles. Because principles are more general and fundamental than moral rules, they may help psychologists think about what to do when ethics codes are silent. Furthermore, they can provide a rationale for the choice of items in the code itself. Although slightly different sets of foundational principles have been suggested (see Table 1.1), K. S. Kitchener (1984, 2000) has argued that those that seem central to thinking about ethical problems in psychology are beneficence (do good), nonmaleficence (do no harm), respect for persons (individuals should be treated as autonomous agents, and those with diminished autonomy need protection), justice (be fair), and fidelity (keep promises, don’t lie, be faithful). These five principles articulate distinctions that are used in ordinary moral discourse and articulate core ethical norms that are central for psychology. They provide the rationale for moral standards and rules; for example, autonomy may justify the moral rule of informed consent, and nonmaleficence may justify prohibition about dual role relations. Ethical principles may also conflict and offer contradictory moral advice. Autonomy may conflict with nonmaleficence and/or beneficence. When this occurs, various ethical theories may come into play. Reflection involving these theories may result in a decision being made. Finally, conflicts about ethical principles and ethical theory may require a higher order reflection on the metaethical plane. Here considerations may be brought to bear to assist in the clarification of which ethical theory seems more relevant and plausible in this context. 26

Level 1: The Immediate Level of Moral Reasoning (Particular Cases) Our model derives from a fundamental principle of pragmatism, which derives in part from Aristotelian virtue theory. As John Dewey expressed it, Thinking begins in what may fairly enough be called a forked-road situation, a situation which is ambiguous, which presents a dilemma, which proposes alternatives. As long as our activity glides smoothly along from one thing to another, or as long as we permit our imagination to entertain fancies at pleasure, there is no call for reflection. Difficulty or obstruction in the way of reaching a belief brings us, however to a pause. In the suspense of uncertainty, we metaphysically climb a tree; we try to find some standpoint from which we may survey additional facts and, getting a more commanding view of the situation, may decide how the facts stand related to one another. (1910/1991, p. 11) As applied to moral behavior, this principle claims that ordinarily, in the customary ebb and flow of acting in the world, there is no need to reflect on and justify our behavior. The need for critical discussion and decision occurs only when behavior is disrupted because of an obstacle, barrier, or conflict of some kind. Hence, when a moral question or dilemma arises that requires a solution, action temporally ceases and reflective moral thinking begins. After sufficient reflection, a decision is made and action results. This process occurs at what we call the critical evaluative level of reflection. Hence, there are fundamentally two levels of moral decision making: ordinary moral behavior and reflective thought. The ability to engage in such reflective thinking develops over time and has different aspects. The ability to engage in epistemic reflection—what we call reflective judgment (King & Kitchener, 1994)—is one kind, but the ability to undertake moral reflection also develops over time. In the context of ethics, our model claims that through education, both at home and in school, individuals acquire a set of moral dispositions (character

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traits) that lead rather directly to moral or immoral behavior. These are the acquired virtues, which operate at the immediate level of moral judgment. On this plane of nonreflection, individuals typically do not think about what they ought to do, they just do it: A child is hurt and cries, and we automatically comfort him; I promise to keep the identity of my client secret, and I straightaway do it. This is the level of nonreflective morality—concrete moral behavior (Level 1). But sometimes a moral conflict will arise or a moral situation occurs when we are perplexed or uncertain about what to do. My commitment to confidentiality is questioned when I discover the possible harmful consequences my client’s behavior might have on others. What should I do? Here I have to reflect and think. In my reflection, I have to weigh various options, calculate likely consequences, consult codes of ethics, and consult with others. It is here that moral norms (standards, principles) become important (see Level 2). As Aristotle pointed out, this initial stage of learning, of initially acquiring our earliest moral virtues, begins by learning what actions to perform under what conditions and then gradually acquiring more permanent dispositions. This initial stage is superseded by a later stage in which we can reflect and think about our behavior and act in a more rational manner. As we mature and acquire wisdom (phronesis), our options increase and our decision making takes on a more complex form. We have developed more sophisticated virtues, and we now can exercise good judgment about complex cases. This, in turn, involves using moral generalizations acquired from past experience and perception of the current moral situation, leading to decisions about how to act (see Figure 1.4). So, ethical principles have an important role to play in ethical decision making, but these are rooted in the ground floor of concrete moral experience. The professional psychologist is a participant in this process, but an additional component of immediate moral action is added as a result of the psychologist’s education and training, including (of course) learning the Ethics Code. Hopefully, as the code is mastered, it becomes internalized and becomes an automatic working part of the professional psychologist’s immediate moral behavior. As

Ethical Theory

Utilitarianism Deontology Virtue Ethics And So Forth

Ethical Principles

Nonmaleficence Beneficence Justice Autonomy Fidelity

Moral Standards (Code)

Confidentiality Informed Consent Deception Dual Role Relationships And So Forth

Particular Acts

FIGURE 1.4. The relation of justification.

professionals mature, consider the ethical problems that they encounter in their professional positions, and critically reflect on them, their ordinary moral sense, common morality, and underlying virtues ought to become more sophisticated and automatic. Those moral values they learned as they were growing up and through their professional education will be supplemented by a deeper understanding of both their professional roles and obligations. For this to occur, however, they must engage in thoughtful reflection on the ethical problems they face and on the underlying moral values that can enlighten their decision making. In this way, their moral virtues and character may develop in ways demonstrating moral wisdom. To act ethically, psychologists also need clear information about the current moral situation. Relevant information may range on a continuum from some that is quite clear-cut to some that is open to interpretation. Sometimes psychologists make ethical errors because of their misunderstanding of specific circumstances, or details about the issue are incomplete or erroneous. 27

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Level 2: The Critical Evaluative Level As long as professional psychologists routinely solve day-to-day ethical issues successfully, they are behaving largely on a precognitive, prereflective level. A client asks the therapist if they could have dinner together to discuss the client’s problem in greater depth and intimacy, and the therapist immediately answers “no” virtually without thinking and without consciously contemplating the Ethics Code. Of course, this does not always happen. Some therapists will behave in a morally questionable way, or they may encounter problematic situations calling for an appropriate moral response, and it may be unclear what that is. When this occurs, when the individual no longer responds in an immediate way but rather stops to think about the situation, the individual will be engaged in a reflection about ethically appropriate behavior. This occurs at the level of critical evaluation. Tier 1: Ethical rules. For psychologists, the first resource in evaluating tough ethical decisions ought to be the APA Ethics Code. This code attempts to bring together the cumulative wisdom of the profession about acting morally when doing research, engaging in psychotherapy, teaching, and supervising. Basically, the code formulates a set of rules— almost 150 of them—that psychologists must follow. These rules should provide answers to many of the everyday ethical questions that psychologists have and provide a standard against which others both in the profession and outside of it can judge their actions. For some, the Ethics Code helps socialize and educate new individuals in the field. For others, the code is used to adjudicate claims of unethical behavior. Generally, the rules establish a threshold of behavior below which the conduct of research or practice of the profession should not fall. Typically, codes address issues like the standards of confidentiality, the nature of informed consent, privacy of information, the limits on deceiving participants, risk–benefit evaluation, and multiple-role relationships. On the other hand, the APA Ethics Code fails to address important ethical concerns like issues of truth telling and promise keeping. 4

The Ethics Code makes an important contribution to psychologists when they are struggling to identify how to be ethical when doing research and psychotherapy. It provides one level of ethical justification for taking or not taking certain actions, allowing the profession to reprimand those who transgress its guidelines, and can promote a sense of professional trust and loyalty. Tier 2: Ethical principles. We have argued that when psychologists’ ordinary moral sense fails them, they may need to critically evaluate their decisions. The first step in this critical evaluation involves ethical rules embodied in professional codes. But when rules are inadequate or unclear, or when moral rules conflict, researchers ought to turn to normative principles such as nonmaleficence and beneficence to help them come to a rational decision. Ethical principles act as general norms that provide a rationale for the moral rules in the ethics codes. Individuals differ about how many such principles are necessary; in fact, one can cite theorists who advocate anywhere from one to 10 different principles. We believe that five ethical principles should be emphasized: nonmaleficence, beneficence, respect for autonomy, fidelity, and justice.4 These are derived from the common morality that undergirds the practice of psychology and are implicit in the moral behavior of psychologists. They also appear to be the principles that tacitly guided the practice of ethical psychologists before the writing of the first ethics codes. In this sense, they provide the foundation or justification for all subsequent codes including the current ones. Ross (1930) called these basic ethical principles prima facie duties. Nonmaleficence means do not cause others harm. It finds its roots in the history of medical practice and has been recognized by modern ethicists as central to medical ethics, perhaps the most important of all the ethical principles. In general, the duty to not inflict harm on others includes neither inflicting intentional harm, nor engaging in actions that risk harming them. It forbids certain kinds of activities, in contrast to the principle of beneficence, which concerns positive obligations, such as helping others.

The Belmont Report’s (1978) principles were respect, beneficence, and justice; Beauchamp and Childress’s principles were autonomy, nonmaleficence, beneficence, and justice. See Table 1.1.

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TABLE 1.1 Comparison of Ethical Principles in Different Models of Principlism Study Belmont Report Beauchamp and Childress American Psychological Association Kitchener

Autonomy (respect)

Beneficence

Nonmaleficence

Justice

Fidelity

X X X X

X X X X

X X X

X X X X

X X

The principle of nonmaleficence is a prima facie duty and need not be considered absolutely binding or unconditional if it is in conflict with other moral principles. If the focus of psychology is to promote human welfare, harming another would not only prevent achieving this goal but also would thwart it. In other words, if social science researchers must choose between harming someone and benefiting them, the stronger obligation could be summarized as, “Help others, but at least do not harm them.” The problem with the standard “do no harm” is that the concept of harm is vague and ambiguous. What constitutes harm, for example, in distinguishing the discomfort and stress that are frequent but temporary side effects of participating in research or therapy from the long-term harm that may result? The principle of nonmaleficence leads to ethical concerns such as how much discomfort is justifiable in research and whether it is justifiable to use highrisk research procedures. Sometimes, however, harm may be justifiable although regrettable. The short-term harm or discomfort that sometimes occurs probably can be justified, especially if the participant or client enters the study freely and was informed of the risks. The position taken here is that as the risk and magnitude of potential harm increases, ethical prohibitions and limits on research and practice also increase. However, the risk of harm also must be balanced with other ethical principles. Beneficence means to do good or benefit others. The purpose of therapy and much of psychological research is to contribute to the health and welfare of others. The principle of beneficence has two aspects (Beauchamp & Childress, 1979). The first requires acting in ways that further others’ well-being as, for example, indicated in the Preamble of the Ethics

Code. The second characteristic of beneficence obligates researchers and other psychologists to balance the potentially beneficial consequences of an action against the potentially harmful ones, a procedure typically followed in the cost–benefit analysis undertaken when considering a particular research proposal. As Kant argued, all persons should be treated as autonomous individuals. Autonomy means self-rule “while remaining free from both controlling interference by others and personal limitations, such as inadequate understanding, that prevent meaningful choice” (Beauchamp & Childress, 2001, p. 58). Generally, autonomy has been understood to include both freedom of action, doing what one wants to do with one’s own life as long as it does not interfere with the similar actions of others, and freedom of choice, making one’s own judgments. It has two aspects. First, it includes the right to act as an autonomous agent, to make decisions, and to develop values. The second follows from a reciprocal responsibility. If people wish to be treated autonomously, they must treat others in the same way. This reciprocity presumes a fundamental respect for the rights of others to make choices even when their beliefs may appear to be mistaken, unless their choices infringe on the rights of others. The commitment to informed consent in psychology derives from the concept of autonomy. For example, by requiring psychologists to inform research participants about aspects of research that may influence their willingness to participate, it safeguards their right to make choices about their own lives. Autonomy and therefore informed consent assumes that individuals are competent to make decisions. The principle of fidelity is at the core of the fiduciary relationship between psychologists and their 29

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research participants and clients. The Oxford English Dictionary (2010) defined fidelity as involving the qualities of faithfulness or loyalty, honesty, and trustworthiness. In psychology, issues like honesty and promise keeping are basic to trust, and although trust is vital to all human relationships, it is particularly vital to researcher–participant relationships and therapist–client relationships. These relationships involve an implicit contract that sets up certain role obligations for each. As an example, research may be invalidated if students believed that scientists made a practice of lying to them. Similarly, if research participants made a habit of falsifying the information that they gave to scientific investigators, psychological research for the most part would be impossible. Lying, deception, and failure to be trustworthy have serious consequences for all professionals. They destroy faith in the researcher or therapist and in the benefits that psychology can offer to the public. If lying and deceit were perceived as the norm, research participants or clients ultimately would be suspicious of the professional’s motives and would feel no obligation to be truthful in turn. Although the moral rules of confidentiality and informed consent can be understood as deriving from the rights of autonomous persons, they also can be understood as obligations that psychologists incur when they enter into relationships with research participants or clients based on fidelity. Contracts between psychologists and consumers typically include the promise of confidentiality. Failure to keep that promise destroys the trust necessary for human, much less professional, relationships. Justice means be fair. Issues of justice arise because of conflicts of interest over limited goods and services and because human benevolence is limited. As a result, to live together with minimal strife, people must develop rules and procedures for adjudicating claims and distributing goods and services in a fair manner. The problems associated with proportioning goods and services are called issues of distributive justice. For example, in psychology, they involve at minimum how the benefits and burdens associated with psychological research ought to be distributed. In this case, the benefits would involve how the information derived from research is used and how the burden of participating in research is 30

shared. It is based on the principle of justice that the APA Ethics Code forbids psychologists to unfairly discriminate on the basis of characteristics like age, gender, race, ethnicity, national origin, religion, and so on. These five principles are prima facie duties. This means each is a binding obligation and is morally valid “as far it goes.” But the “all things considered” decision occurs after these various prima facie duties, generated by a particular moral situation, are considered, evaluated, and weighed. Tier 3: Ethical theory. Considerable agreement is shared about the first tiers in the standard model: moral rules (e.g., informed consent, confidentiality, privacy, dual relationships, conditional deception) ground particular moral decisions and action, and ethical principles (e.g., autonomy, beneficence, etc.) ground moral rules. Such a view is found in the Belmont Report (1978), Beauchamp and Childress (2001), K. S. Kitchener (2000), and many others. But it is at the next level—ethical theory—that advocates of the standard model disagree. Originally Beauchamp and Childress (1979, p. 5) suggested that ethical theories (e.g., utilitarianism, deontology) ground ethical principles both in the sense of justifying them and in providing guidelines when ethical principles conflict (although in their 2001 version they no longer hold this view). Although individuals may disagree about the precise justificatory role ethical theories play, there is widespread agreement that higher order theoretical principles are useful and sometimes necessary in moral reasoning. But which ethical theories are necessary or sufficient in relation to the lower level ethical principles such as autonomy and beneficence? Here there is room for considerable disagreement. For reasons of space, certain views will be excluded from discussion: For example, ethical egoism has not seemed to be a viable ethical principle to most ethical theorists. The same is true of theological ethics (one should act as God or scripture mandates). Several individuals have advanced “antiethical theory” views: Nietzsche’s perfectionism, Marx’s socioeconomic account of class morality, post-Modernist ethics, and Freud’s psychoanalytic account of ethical principles. These accounts, although interesting, are

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not directly relevant to this discussion and have not been particularly influential in the field. Consider, for example, a conflict between the principles of beneficence and autonomy. According to the principle of autonomy, you should treat your research subjects and clients with autonomy, respecting their ability and right to make their own decisions about participating. But this principle can conflict with the principle of beneficence—of producing good consequences for others—important knowledge that might benefit large classes of people. How should such conflict be resolved? For example, suppose a female client is dependent on her husband for every detail of her life and, for the sake of her identity, needs to become a more independent person and develop her self-esteem. She may report that she does not want to become more independent of her husband (autonomy), but for her welfare, she may need to be (beneficence). Which principle should be followed? Feminist ethics may advise the option of beneficence at the cost of autonomy. Aristotelian virtue ethics may have a model of what a fully self-actualized person should be, one in which the attainment of one’s telos requires the temporary abandonment of a superficial autonomy. Utilitarianism perhaps gives a relatively straightforward answer—do what will produce the most good for the client (and others?). A Kantian answer may seem obvious: Treat your subjects and clients as autonomous, rational agents, with respect and dignity, not merely as a means but as an infinitely valuable human being. So far, we have mentioned four tiers of ethical decision making and how the norms presented at each tier may justify the account present at lower tiers. As we proceeded up through these tiers, the discussion has become more and more abstract, apparently removed from the nitty-gritty of how one ought to act. Our last level—the level of metaethics—is not explicitly present in other accounts. Nevertheless, we believe such a level is both necessary to add to the standard model and an important contribution to any discussion of the ethical foundations of psychology. Tier 4: Metaethics. Questions often arise about the very nature of ethical theory and about how one is to rationally choose between them (e.g., Kant

vs. utilitarianism). When this occurs, the discussion must occur at a higher level of discussion, at a reflective level or metalevel of discourse. This is the level of metaethics. Metaethics is fundamentally concerned about a variety of questions: the meaning of ethical terms, concepts, and propositions; the justification of ethical statements; the kind of reasoning involved in giving arguments for a particular ethical theory; the very existence of ethical theory, ethical properties, and ethical propositions. Metalevel discussions thus concern the semantics, the epistemology, and the metaphysics of ethics. Although this is not typically pointed out, discussions about the ethical foundations of psychology often involve debates about metaethics. Traditional metaethical questions. One question concerns the issue of whether there are objectively real moral properties (e.g., moral goodness), that is, properties that exist independently of all minds and societal arrangements. If moral properties do exist, what is their nature? Are they natural properties of the physical world (e.g., pleasure), or are they sui generis nonnatural properties? Which account of the existence and nature of moral properties is most congenial? If there are ethical properties and ethical propositions, how can they be known? For example, can propositions about goodness be known by ordinary empirical observation and experimentation? Or are they known by a special nonnaturalistic faculty (e.g., intuition, moral sense)? If the latter, how is this to be integrated into a proper conception about the nature of psychology and the nature of knowledge acquisition in psychology? How, if at all, is it possible to give a rational defense and justification of a moral claim? When one says that one ought to maintain confidentiality, how can this claim be rationally supported and justified? Is empirical evidence relevant to evaluating the adequacy of such assertions? Can an ethical theory even be said to be confirmed by empirical evidence at all? On the other hand, can it be defended by purely rationalistic, a priori methods of argumentation? If so, what are such methods and how are they to be conceptualized in relation to the science of psychology? What is the meaning of such ethical statements as “researchers ought to obtain subjects’ consent 31

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before they do research” or “one’s duty is to treat one’s clients with respect and trust”? Are these cognitively meaningful or meaningless (as opposed to emotionally meaningful)? Metaethics and psychology. Other metaethical issues arise in the context of constructing a code of ethics for professional psychologists. First, is a single ethical theory (e.g., utilitarianism) or a single ethical principle (e.g., nonmaleficence) adequate for the ethics of psychology, or are many ethical stances valuable, all of which should be retained? Most individuals seem to assume a pluralism, in which all the various ethical approaches have something to offer when it comes to thinking about ethical matters. But if so, how can such ethical diversity be integrated into a conceptually adequate account of ethical theorizing? This is the issue of monism versus pluralism. Many individuals who argue for a pluralism of ethical principles typically are not thinking that these principles or theories are all true, but rather that they are heuristically valuable when it comes to reflecting on ethical issues. This is instrumentalism versus realism. Second, because all of these ethical theories are not simultaneously compatible with each other but rather conflict, how should our ethical reflection and judgment be guided? If one is a pluralist about basic ethical principles, how can one come to a rational decision after reflecting on them? A monist has an ultimate answer, but a pluralist does not. So, another fundamental issue of metaethics is as follows: Because different ethical theories conflict, how should one decide which one to follow? Currently, several approaches can be taken to answer this question. A rankings approach suggests that the various ethical principles need to be rank ordered in importance and weight so that, for example, nonmaleficence is ranked higher than, say, beneficence. This possibility would seem plausible given a certain interpretation of the underlying structure of the Ethics Code, namely, that it is more important not to harm others than it is to benefit them (assuming these really are different principles). But even if this would be possible, and some would argue against this particular ranking, it is unclear how we are to rank order the other principles of autonomy, fidelity, and justice. 32

A balancing approach claims that all of the principles are valuable and, in a given situation, must be balanced to get the best overall combination. What balancing involves is not clear, but the basic idea seems to be something like Rawls’s (1971) method of reflective equilibrium. We are after the “best fit,” with all of the theories, principles, and rules being brought into a state of maximum coherence, consistency, or equilibrium.

Ethical Methodology An underlying issue that deserves separate treatment concerns the question of the appropriate method to use in applied ethics. If particular cases are at the bottom and abstract general principles are at the top, should one proceed in a top-down fashion or in a bottom-up fashion? In the top-down approach, one begins with abstract ethical theory (or principles) and then proceeds to apply these principles to concrete cases, most typically by a deductive process (deductivism). This typically, but not always, goes with an approach in which the most general principles are established by intuition or self-evidence— an a priori approach. The creators of the original APA Ethics Code explicitly rejected this top-down approach in favor of what they called an empirical (a posteriori) approach. A somewhat related top-down approach is specficationism (Richardson, 1990), which proceeds by taking a general ethical norm and making it increasingly specific by incorporating more and more details about the why, when, how, and so on until the specified norms lead to a directive about the particular case at hand. Conversely, one version of a bottom-up approach is proceeding in an inductive manner. One begins with a number of judgments about particular cases, the determination of which is to be established in an empirical a posteriori manner, for example, x% of the sample judged action A to be wrong. Then one draws a conclusion from the sample. There are two possibilities. (a) The conclusion is a general summary statement, such as x% of the population judged action A to be wrong. The inference is drawn from a descriptive summary of the sample to a descriptive summary of the population, with no normative implication being drawn. (b) One derives a normative conclusion

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from a description of the sample. To do this and avoid a fallacy, most researchers would insist that the sample itself contain a normative description, for example, x% of the sample were normatively warranted in judging action A to be wrong. Because the first option does not carry any normative punch, the second option would seem to be the only normatively interesting type of inductive inference. The question, however, is how to justify the claim about the sample because this is not a simple empirical description. Another version of inductivism is particularism. Being opposed to ethical theory and hence denying the existence and need for general ethical principles or theory, some particularists (e.g., Dancy, 1993) argue in the following way: One makes an ethical judgment or decision after looking at all of the relevant details of a particular case. There is no reason to think another concrete case will have properties of sufficient ethical importance to warrant a general connection between such cases. Everything is decided on a case-by-case basis. Hence, particularism denies the necessity of ethical rules, ethical principles, and ethical theory, likening the ability to make moral judgments to a skill such as playing chess. Other particularists take a more moderate stance. A better version of inductivism might be a combination of induction and deduction, something like Rawls’s (1971) notion of reflective equilibrium. The inductive phase would consist of a summary of some group’s considered judgments followed by an inference to a moral principle or set of principles. The deductive phase would then involve deriving predictions about what another set of considered judgments would be, followed by either confirmation or disconfirmation. One can view this method as involving induction–deduction–induction. Of all the methods of ethical inquiry, reflective equilibrium appears to be the most popular. It also seems to be the method used by the original creators of the APA Ethics Code.

The Methodology of the APA Ethics Committee Initially, the ethics committee rejected a pure deductivism or a priori method of erecting a moral code (a top-down approach). Although it is not clear what they meant by this, apparently the committee would not set forth general a priori ethical principles from

which they then would derive more particular moral rules making up the standards of the code. So a pure deductivism was ruled out in favor of what they called an empirical (a posteriori) method of creating a code (APA, 1953; Hobbs, 1948), an approach “in which ethical principles would be based on the raw data of experience of psychologists in solving their ethical problems” (APA, 1953, p. viii). The APA committee began by collecting a large number of moral incidents, situations in which a moral issue arose or might arise. They also asked respondents to give their own judgment about what was ethically objectionable (or morally preferred). Although some respondents did this, most of them did not. Although respondents were asked to judge 1,000 ethical incidents, they did not provide 1,000 ethical judgments of what was right or wrong. How many judgments do we have? No statistical data are reported. These 1,000 statements then were grouped into six categories, and in each category ethical principles were set forth that either were “stated or implied in the incidents submitted by psychologists” and (presumably) stated or implied by the respondents’ own ethical judgments (APA, 1953, p. viii). The result was a whopping 162 ethical standards. Two comments are in order. First, virtually all critical incidents were about misconduct or suspected misconduct. Presumably, these cases involved harm or likely harm to someone. Hence, many of the resulting rules read, “It is unethical to do A,” indicating that behavior A is morally inappropriate. In large part, therefore, the code specifies what is morally wrong, along with the injunction not to do it. The code, therefore, like the law, was largely concerned with wrong-doing or misconduct. The code, at least originally, had the function of policing the profession, of preventing misconduct and hence avoiding ethical charges and lawsuits. This seems in part to be behind the term standards in the code, namely, acceptable conduct the violation of which is prohibited. Second, many of the incidents required the respondents to ask a question about what was ethically appropriate, requesting advice from the ethics committee about what ought to be done. This obviously invited a response on the part of the ethics committee. 33

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The committee claimed not to be prescribing moral standards to the profession, nor did they necessarily agree with the ethical judgments present in their survey. This leads one to suppose that the ethical standards are those of the respondents and that the ethics committee members were reporting these principles or were making explicit what was implicit in the responses. This is an inductive summarizing method or an explication. But if it is the former, we would expect a statistical summary of the respondents’ views; if the latter, some kind of justification or account of why they thought the responses implicitly contained these moral standards (again with statistical summaries). We believe the latter option was used. Sometimes, however, the committee is clearly making its own prescriptions. What else can be going on when respondents explicitly ask for moral advice? But any such prescription must have an accompanying justification; otherwise, it might just be personal preferences. Such justification is found in some cases (e.g., Principle 1.22-1). Perhaps the best interpretation of the ethical methodology used by the originators of the first APA Ethics Code is Rawls’s method of reflective equilibrium. In this method, one begins with a pretheoretical ethical intuition about what is wrong (or right) in particular ethical situations, for example, that racial discrimination (or religious intolerance) is unjust or that it is wrong to inflict harm on one’s research participants. This initial set of intuitions thus constitutes something analogous to empirical data (observations). One then formulates a set of what Rawls called general ethical principles that explain, account for, or rationalize these intuitions. This is analogous in science to the construction of hypotheses that explain the observational data. This influential step is sometimes called an inference to the best explanation. Next, these generalizations can lead to the correction of original intuitions, showing them to be mistaken, and to further moral intuitions that follow from the set of moral principles. This is the counterpart to predicting new observations from hypotheses. These are either confirmed or disconfirmed. Next, one modifies one’s ethical principles on the basis of the corrected set of initial intuition and the new set of intuitions, proceeding in this way until a 34

state of reflective equilibrium is reached between one’s intuitions and one’s ethical principles. The original APA ethics committee may have done something like this: It collected pretheoretical data (the initial considered judgments of respondents plus intuitions tacitly present in the critical incidents), it formulated ethical standards that make sense out of the set of intuitions, and it then revised the ethical standards by obtaining feedback from additional members of APA and other ethics committees (e.g., state committees). Reflections on these comments constitute additional data, which resulted in revision of the standards, thus establishing reflective equilibrium. Once again, this method may be considered an inductive–deductive–inductive process.

Principlism The standard model for understanding ethical decision making and justification in the context of professional ethics is the employment of ethical principles in addition to rules or standards (Beauchamp & Childress, 2001; Belmont Report, 1978; K. S. Kitchener & Anderson, 2011; Knapp & VandeCreek, 2006; Sales & Folkman, 2000; Sieber, 1992; Steininger, Newell, & Garcia, 1984). This view could be called generalism, the claim that general moral principles are necessary to make adequate moral decisions. Generalism usually is opposed to particularism (see the Particularism Revisited section later in this chapter), although as we will suggest, these two views are not incompatible (if suitably interpreted). A particular instance of generalism is the view sometimes called principlism, a view closely associated with the model of Beauchamp and Childress (2001). In their account, ethics is based on an irreducible pluralism of four middle-level prima facie principles. These principles apparently justify lower level rules (by specification and balancing) but do not, themselves, require a justification by a more general ethical theory, nor is it possible. It may be useful to reflect on ethical theories, they admit, because the theories contain “insights and arguments that deserve careful study” (Beauchamp & Childress, 2001, p. 337). They all have something to offer in clarifying ethical reflection, so one should use these various and sundry aspects from the several ethical theories for clarification: these aspects

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are not rules of thumb so much (heuristic aids) as aspects or variables of the moral enterprise that cannot be ignored, for example, Kantian autonomy, rights, utility, and caring. Like many other such models, ours is a hierarchical model in which the interlevel processes go upward and downward. When an ethical conflict or indecision occurs as level Li, an attempted resolution occurs by turning upward and ascending to a higher level Lj (j > i). This is a process of reflection because a cognitive representation of a lower level Li requires activity at a higher level Lj, a level of reflection about this level. The ability to reflect on lower levels of cognition and emotion is one that develops over the lifetime of the individual. It lies at the heart of the reflective judgment model of K. S. Kitchener (King & Kitchener, 1994), a model it may be useful to briefly discuss.

The Reflective Judgment Model As already noted, Ross (1930) identified five prima facie principles that he thought all people accepted through intuition. He was also aware that people had to make a decision concerning which principle was most important in a particular case. To do this, Ross argued that a kind of reflection was necessary to make a decision, and this was dependent on our mental maturity. Ross’s point about the importance of mental maturity, which he assumed was present in adults, was echoed by Audi (1993), who argued that it is reflection above all else that allows us to decide which principles are knowable through what he saw as “reliable intuition” (p. 8) but which could only be achieved by “thoughtful well-educated people” (p. 2). This is a question of moral epistemology: of how we know, rationally believe, and are justified in believing things in the moral domain. The question remains, however, how this moral epistemology develops in people with enough mental maturity. Presumably, moral epistemology is a branch of general epistemology, and hence what is true of general epistemology is true of moral epistemology. Evidence has been accumulating for several years that epistemological assumptions about intellectual matters—factual or theoretical questions— develop over time from childhood through the

mid-20s, especially among those who continue their education (Hofer, 2004; K. S. Kitchener, King, & DeLuca, 2006). K. S. Kitchener and King (1981; see also King & Kitchener, 1994) have tied the development of epistemological assumptions to the ability to consciously reflect on those assumptions and develop what they have called a considered judgment. In fact, they called their model a reflective judgment model (RJM) because it described the relationship between epistemological assumptions and how people were or were not able to be reflective about how they justified their views when faced with ill-structured problems (ones that do not have a clear-cut answer). This account is a modified stage model that has seven levels or stages that develop over time from early childhood to potentially the mid-20s or later depending primarily on age and the amount of education. People’s thinking develops through three major phases, which were labeled by King and Kitchener (1994) as Pre-Reflective, Quasi-Reflective, and Reflective Thinking. Essentially in the PreReflective period, which includes three stages, the epistemological assumptions are based on an authority’s views. Justification about answers to ill-structured problems is based on that authority’s views, or answers are accepted without consideration. In the Quasi-Reflective level, these views change to subjectivism or relativism. Here, the view of knowledge is subjective because it is filtered through a person’s perception, so only interpretations of evidence or issues could be known. Conclusions are difficult to draw because there are so many possible interpretations and no way to choose between them. The Reflective Thinking phase includes two stages, with the last stage encompassing true reflective judgments. In this stage, knowledge is the outcome of the process of reasonable inquiry in which the adequacy of solutions is evaluated in terms of what is most reasonable according to current evidence. It is reevaluated when new evidence, new tools of inquiry, or new perspectives become available (King & Kitchener, 1994). Beliefs are justified at this stage probabilistically on a variety of considerations, including the weight of the evidence, the value and consequences of alternative judgments, the risk of erroneous conclusions, the opinions of 35

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experts, and how these factors are interrelated. These lead to judgments that are defended as representing the most complete, plausible, or compelling understanding of the issues (King & Kitchener, 1994, p. 16). A slightly edited example based on a quote from one participant in a study may help: One can judge an argument by how well thought out the positions are, what kind of evidence is used to support it, and how consistent the way one argues on the topic is as compared to how other views are argued. (King & Kitchener, 1994, p. 16) Although the RJM was developed to explain epistemological assumptions and justification in the intellectual domain, it also may be used to explicate epistemological reasoning in the moral domain. Although the RJM has never been applied to the moral domain, the fact that moral problems are also ill-structured suggests that the RJM can be used to examine considered moral judgments. It should be noted that such a research program, studying the development of moral reflective judgment, would be a study of the participants’ moral epistemology and should not be confused with the more familiar problem of studying the development of moral judgment (e.g., Kohlberg’s stages of moral development). The parallels between the ideas developed to explain between epistemological assumptions in the intellectual domain and those in the moral one are striking. As noted, considered moral judgments are not relative to an individual; rather, they are based on an evaluation of the evidence, expert opinion, and in the case of ethics, the particulars of the situation. These reflective judgments are the best alternatives considering the situation, the moral rules and moral theory, and the available evidence. In other words, the mental maturity that Ross (1930) and Audi (1993) were talking about develops over time with age and education, leading to the ability to make reflective judgments about the issues at hand. Just as in the intellectual domain, these decisions are probabilistic, neither based on authority nor just relative to a particular context. An example may help us understand how the ability to make reflective judgment fits with our 36

model of how one makes ethical judgments. Turning to Case Example 1, the moral rules explicated in the 2010 APA Ethics Code gave conflicting or ambiguous advice. On one hand, Standard 4.01 stated that psychologists had a primary obligation to take “reasonable precautions” to protect confidential information. On the other hand, Standard 4.05 stated that psychologists could disclose confidential information with the consent of the individual client only for valid reasons. In addition, Standard 4.07 gives psychologists permission to discuss clients in writing, lectures, and other public media as long as confidential, personally identifiable information concerning their clients was disguised, the client consented in writing, or there was legal authorization. In other words, is confidentiality primary and inviolable? Or, with the client’s consent, can it be disclosed if personally identifiable information is disguised or omitted? Here we have a conflict of standards. On the basis of our model, we need to turn to the second level of moral principles, with the relevant ones being autonomy, nonmaleficence, and beneficence. Although in the APA Ethics Code these are considered ideals, in our model, they are considered prima facie binding and as fundamental. They provide the philosophical foundation for the standards. Because the standards are obligatory, the principles also must be considered obligatory. The principles of autonomy, beneficence, and nonmaleficence are at the core of many ethical disputes in psychology because of the tensions between nonmaleficence and beneficence on one side and the principle of autonomy on the other. In Case Example 1, the psychologists must first consider the client’s autonomy or freedom of choice. The women who come to the center have a choice about whether to give the psychologist permission to break confidentiality (and the conditions under which that may occur) as well as a choice as to whom that information may be revealed. The psychologist protects their freedom through confidentiality based on their choices. The second principle involved is nonmaleficence. The psychologist needs to consider both the possible harm to a client if her identity were exposed as well as harm to the therapeutic relationship if her information was disclosed without her permission.

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The third principle involved is beneficence. In our model, it is also a positive prima facie duty requiring psychologists to contribute to the health and welfare of others. Clearly, for the APA, contributing to the welfare of others is an important consideration, something that is good to produce and is explicitly mentioned in the introduction to the Ethics Code. Where does this leave us in the moral conundrum posed by Case Example 1? Recall that we have three prima facie duties and that the psychologist, in this situation, must make an all-things-considered judgment. Should psychologists remain silent or should they inform the police of the name of the fraternity? Clearly, as noted, naming the women might lead to negative moral consequences. Furthermore, the psychologists might promise the first women confidentiality with the usual disclaimers. As the cases pile up, however, the risk of harm to many other women may be so high that the benefit of keeping completely silent about the name of the fraternity is trumped. Under these circumstances, the psychologists may ask for the women’s permission to name the fraternity involved but not their identity so the police can start an investigation. Letting them know that many women have revealed the same problem so that they would remain autonomous might sufficiently reassure the women to give their consent for the psychologists to name the fraternity. In this case, therefore, all things considered, all of these principles are served (as is a utilitarian solution) without sacrificing the client’s autonomy. Here, the psychologist is making a reflective judgment. It is neither based on authority nor completely relative to the individual, but is perhaps the best, most complete, plausible, or compelling overall solution considering the facts of the case and the three principles. Through age and education, the psychologist has developed the mental maturity that Audi (1993) and Ross (1930) deemed necessary to sort through the principles and come to a reflective decision about which moral principle was most important in this particular case. Although Audi and Ross do not acknowledge this, the development of such a moral reflective ability can be studied empirically.

Justification The upward arrow of reflection, in turn, can lead to downward arrows of decision making and justification. After reflecting at level Lj about a problem at Li, a decision about what to do is made. This is the process of deliberation followed by decision. Once having made a decision (I ought to do A, or A is done), this can be questioned by someone (including yourself) and then the process of justification of the decision ensues. Typically, the justification of the decision will involve an appeal to the process involved in the decision-making process. This process includes citing one’s reasons for the decision—why a person made the decision he or she did. To justify one’s action or judgment is to cite considerations (reasons why) that show the action or judgment was warranted, appropriate, or not blameworthy. These considerations explain why the decision and show that the action should not be criticized, and that the person who made the decision should not be blamed. The Oxford English Dictionary (2010) defines the word justify as follows: “To show (a person or action) to be just or in the right; to prove or maintain the righteousness or innocence of; to vindicate (from a charge), to declare free from the penalty of sin.” To justify is “to do justice to” (as in punishing one for a sin committed); to make good (an argument, statement, or opinion); to confirm or support by attestation or evidence; or to corroborate, prove, verify. We think of this process as one involving a certain model we inherited from the Greeks, who gave pride of place to mathematical reasoning (geometry). This, in turn, was extended to include logical argumentation in general, which consists of formulating claims by virtue of propositions. This naturally leads to thinking of justification as being a case of theoretical reasoning involving propositions or proposition-like entities and justification to involve a process of inference because logic and mathematics have this form. But processes of inference cannot proceed indefinitely or infinitely, so one’s grounds either are inferentially justified by other grounds or not. If they are inferentially justified, then to avoid an infinite regress, these grounds must, in turn, be inferentially 37

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justified by other propositions in one’s system (coherence), remain unjustified (arbitrary), or provide grounds that are justified noninferentially (foundationalism). Thus, they are justified by reason of being self-evident or self-authenticating (e.g., they are a priori) or they are justified by something other than propositions (e.g., causally related to observational experience). Such foundations might be absolutely certain (strong foundationalism) or just plausible or likely (weak foundationalism). In addition, such justification might be general or specific. Contextualism is the view that what does the justifying—whether there is a need for justification, and how strong the justification must be—depends on the context. So, a drug company must provide convincing empirical evidence that a new drug is safe before it is acceptable, whereas a neighbor does not ordinarily need to do so when offering a guest a glass of water from the tap. Although we are sympathetic with much of the Beauchamp and Childress (1997) account, we do not share their narrow principlism. If ethical principles can justify moral rules, why can’t ethical theory justify ethical principles? As we have suggested, ethical theory can illuminate, explain, and clarify these ethical principles, which are prima facie binding. In short, they can provide an explication and rationale for these principles. Such explication need not be considered deductive in a narrow sense, nor does one have to believe that ethical theory provide strong foundations for the principles. Ethical principles are prima facie valid, which we can take to mean that they provide fallible (pro tanto) justification for moral rules, because these principles are not absolutely certain, incorrigible, infallible, or indubitable. But ethical theory also can be viewed as providing fallible (modest) foundations for the ethical principles. According to Beauchamp and Childress (2001), ethical principles need to be specified and balanced in order to be translated into moral rules (or into the Ethics Code). Such specification and balancing is not something that is deductively ascertained by virtue of further generalizations; both of these processes— specification and balancing—involves judgment, and such judgment is not dictated by abstract generalization. Similarly, one can argue that reflection on ethical 38

theory can result in a judgment about which ethical principles are more salient or more heavily weighed. If conflicting moral principles need to be balanced, resulting in a personal judgment, why can’t conflicting ethical theories be balanced? (Although we do not have the space to make the point, a similar argument can be given for the role of metaethical accounts in reflecting on ethical theories.) A judgment is something a person makes; it is not the mere outcome of the mechanical application of general rules. Of course, a person can consider general rules in coming up with their decision, but a judgment involves something more than just the instantiation of several general principles. If a judgment is to apply to a particular, then one needs a premise mentioning the particular and, as Aristotle said, this comes from perception of the particular. Perception is thus crucial in making certain kinds of judgments.

Particularism Revisited Perception is of the particular; cognition of the general. A judgment, in general, can be about an action (I ought to do a particular action, e.g., talk to my supervisor tomorrow). It can be a practical judgment— or a more theoretical judgment about reality (next summer’s temperature will be hotter, the Egyptians could never have built the pyramids without help from aliens). A judgment also can be factual (as in the previous examples) or normative (this therapeutic technique is better than that one). Justification thus involves giving reasons for an action or belief, or providing a rationale for it. Such a rationale or justification can take various forms (e.g., deductive, inductive, analogical justification, narrative, pattern subsumption), but in all of these forms, the decision “makes sense” and the charge that the wrong decision was made is canceled, overridden, or answered in some way. Arguably, there is no decision procedure for making an ethical judgment. A decision procedure, in mathematical logic, is defined to be a step-by-step, automatic, mechanical procedure—an algorithm— guaranteed to result in a correct decision. For example, once setting the alpha level of a statistical test at .05, the rejection or nonrejection of the null hypothesis is basically algorithmic. A decision procedure

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does not exist for logic, rationality, or decision making in general. In the area of ill-structured problems, which certainly includes most of human problem solving and ethics, a different model of decision making is necessary, one involving a judgment (e.g., to what value to set the alpha level). On our account of particularism, an individual judgment is not determined by consulting rules, although that might be helpful. (This extension goes beyond the model found in K. S. Kitchener & Anderson, 2011.) A personal judgment is the outcome of a kind of Aristotelian phronesis—practical wisdom. It involves the ability to make good judgments about particular situations. This is a kind of know-how or skill that is the result of long practice, leading to the generation of a disposition (virtue). In Aristotle’s account of virtue, for example, we have to learn to have the right feelings and perform the right actions at the right times, about the right things, toward the right people, for the right end, and in the right way (trans. 1989, p. 24). These variables make up the particular situation or context, and they usually are quite different from one occasion to the next. This knowledge is the result of years of personal experience and issues in a theoretical or practical judgment. Some analogies would include the external reviewer’s judgment about the publishability of a submitted manuscript, the judgment of a supervisor that a student will make a good therapist, the judgment of an ethics committee that a particular sanction is appropriate to a particular violation of the Ethics Code. All of these examples involve something more than just consulting a set of rules or external criteria (although this will, in most cases, be involved). What is involved is an immediate perception or awareness of the particular situation and all of its intricate details, for example, reading the manuscript and forming a general impression, observing the student in a variety of therapeutic interactions, becoming acquainted with all of the complex details of an ethical complaint. As Aristotle put it, “Judgment depends on particular cases, and we make it by perception” (trans. 1989, p. 62). This may invite the charge of subjectivity, skepticism, and relativism, but our version of particularism, which also could be called contextualism or

situationism, does not entail subjectivism or skepticism, and it does not include the view that ethical judgments are relative to the individual. There are objective and public ways of cross-checking the validity and reliability of such judgment in therapy: How good of an education did she receive? Did it include an internship? How good were her supervisors? What is the history of her judgment? What is her reputation in the field? How have her judgments fared when they have been cross-checked (e.g., how do her colleagues evaluate her work, have her judgments been borne out by subsequent experience)? Of course, these areas have degrees of validity. Most people would agree, no doubt, that umpires are more objective than drama critics and wine experts. Different fields lend themselves to different degrees of objectivity in their professional judgments. In short, the Aristotelian concept of phronesis is the ability to make wise judgments about how to act as one pursues the goal of well-being. Individuals (phronesmoi) vary in this ability, just as individuals vary in their wisdom about life. Partly this is a function of their upbringing, education, and life experiences—in short, their developmental maturity. Aristotle’s concept of phronesis was a developmental model, with similar models present in 20th-century developmental psychology. In all of these models, reflection on ethical dilemmas is crucial, with this ability taking the form of a developmental trajectory. These phronesmoi can use moral generalizations of varying levels to assist them in forming their particular judgments, but these generalizations are, in part, inductive generalizations from past moral experience and are true only “for the most part” (as Aristotle said). So, moral generalizations certainly have a role to play in the ethical arena, but these generalizations are no substitute for wise personal decisions about what to do in a particular moral situation, or about what to believe. Ultimately, as pragmatists have always said, it is the particular contextual situation that is crucial, and different contexts call for different decisions, which are not absolutely certain or subjective preferences. Any adequate model of ethical decision making must include such a particularism in its account. Phronesmoi make 39

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wise judgments based on their awareness of the moral variables present in moral situations. This, in turn, is a skill or an ability learned over time. This conception of individual judgment was operative at the initial level of our model, and it enters again at this higher, reflective level. CONCLUSION No one has yet written a comprehensive account of the ethical foundations of psychology, one that is both sensitive to the empirical, scientific details of this area and that is grounded in an adequate philosophical theory. Although we do not feel that our approach does these things in a final or complete way, we do hope we have stimulated others to reflect on these issues and to work on producing an up-to-date and comprehensive account of the historical and philosophical issues surrounding the ethical foundations of psychology. Such a project, in our view, would involve a discussion of several collateral issues, ones that have yet to be thoroughly considered. One such issue is the importance of metaethical considerations in deliberations about ethical issues in psychology. Another approach is the current work in “moral psychology” by several individuals (Sinnott-Armstrong, 2008) whose work promises to reshape the entire moral landscape of our thinking about ethics. How this work is to be integrated into such thinking remains to be seen, but almost assuredly it will result in a radical, naturalistic foundation for moral philosophy. While we wait for such an account, we must be content with something else much more restrictive—a sketchy and admittedly incomplete model of the ethical foundations of psychology. Although we recognize the inadequacies of our model and its shortcomings, we nevertheless believe that it provides the beginnings of a plausible account of such an ethics.

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CHAPTER 2

ETHICS AND ETHICS CODES FOR PSYCHOLOGISTS Stephen H. Behnke and Stanley E. Jones

The field of psychology examines nearly every aspect of human experience. A field that so profoundly explores both what humans think, feel, and do, as well as the behaviors and thought processes of nonhuman animals, must have clear and strong ethical underpinnings. In this chapter, we provide an overview of the ethics of the profession of psychology. The overview is an exploration of the substance of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010), the processes by which the Ethics Code is applied in practice, the relationship between the Ethics Code and the law, a comparison of how different mental health disciplines address a frequently encountered ethical issue, and concluding thoughts on the future of the ethics of the profession. The chapter is divided into six parts. The first part discusses the concepts of ethics and ethical decision making. The purpose of this discussion is to offer a definition of professional ethics that provides a context for the whole chapter. The second part of the chapter discusses the purpose and function of a professional association ethics program, that of the APA. Professional ethics do not exist in a vacuum. Rather, associations write ethics codes so that members of the discipline and the public will be aware of the boundaries of ethical practice. This second part of this chapter illustrates an ethics program in practice by discussing how the APA responded to a societal issue with significant ethical implications

involving psychologists. The third part of the chapter provides an overview of the 2010 Ethics Code. This overview, an examination of the structure and content of the Ethics Code as well as the substantive issues that the Ethics Code addresses, provides a good sense of how the APA frames the ethical issues that are most relevant to the work of its members. The fourth part of the chapter compares how different associations address a specific issue, that of multiple relationships. A comparative approach highlights differences and similarities in how associations approach the ethical challenges their members face. The fifth part of the chapter examines the relationship between ethics and law. Psychology is practiced in the context of a society. Society has its own values and norms, which generally are embodied in the laws of the different states, provinces, and territories. These laws apply to psychologists both in their capacity as citizens and as members of a profession; even calling oneself a psychologist is a legally relevant statement in jurisdictions that regulate the title. This discussion is an examination of the complex and multifaceted ways in which the law and the profession of psychology interact. The sixth and final part of the chapter provides concluding thoughts and places the chapter in a developmental context by considering ethical issues and challenges that psychology is likely to face in the coming years. The chapter is designed to provide an overview of the concepts and application of ethics in psychology. It is important to stress the notion of overview.

The opinions in this chapter represent the personal views of the authors and do not represent the official views of the American Psychological Association. DOI: 10.1037/13271-002 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Any one of the six discussions in the chapter could easily be the subject of an entire volume—or set of volumes—in its own right. Nonetheless, this overview should give the reader a good grasp of the contours of the ethical practice of psychology and a good understanding of how these contours are placed in the context of the larger society in which psychologists work. THE ETHICAL PRACTICE OF PSYCHOLOGY: ETHICS AND ETHICAL DECISION MAKING To examine the role of ethics in psychology or any field, one must first consider what one means by ethics, why ethics is important, and how ethics differs from other related but distinct concepts, such as risk management and law. A definition of ethics is by no means obvious because people use the term in many different ways. At times, for example, ethical practice is equated with competent practice. At other times, being an ethical psychologist is equated with being a moral person. Although a relationship clearly exists between ethics and competence, and ethics and personal morality, professional ethics should not be confined to competence, nor should it be viewed as nothing other than being a “good” person as defined in a particular religious, spiritual, or humanistic tradition. Rather, professional ethics must be grounded in the ethics of the profession. To illustrate this idea, consider the following hypothetical. An applicant to a psychology program is a thoroughly good and moral individual. He belongs to a religious tradition, practices within his faith, does good works, and is respectful of his familial and community relationships. He applies to a graduate program in clinical or research psychology and is accepted, but because of a pressing family obligation, he requests to be released from the 1st-year ethics course. His request is made on the basis of his being a moral person who therefore will be an ethical psychologist. The program director turns down the request. She explains to the new student that he has understandably but mistakenly equated being a moral person with being an ethical psychologist. The program director takes out a copy of the APA Ethics Code and randomly chooses a standard to illustrate the point: The Ethics Code is 44

not a document that an individual, regardless of how good and moral, could draft outside the context of experiences in the role of a psychologist. An individual could not sit down and intuitively come up with the 89 standards in the APA Ethics Code. The substance of the Ethics Code is drawn from decades of psychologists’ experiences working in the profession. The purpose of an ethics course is not to teach new psychology students how to be good people, although it may be consistent with that goal, but rather to train the students how to be ethical psychologists. (More information on the issue of integrating personal and professional ethics can be found in the discussion of the ethics acculturation model in Chapter 19 of this volume.) In another instance, a faculty member in the program objects to having an ethics course. The faculty member argues that ethics should be embedded into all courses because ethics is nothing other than competent practice or competently conducted research. The faculty member explains that because competence is the be-all and end-all of ethics, students should focus on enhancing their clinical, counseling, and research skills to increase their level of competence, and good ethics will follow. The program director agrees that, indeed, competence is central to ethics. Principle A in the 2010 Ethics Code is Beneficence and Nonmaleficence: do good and do no harm. The director explains that it is difficult for a psychologist to do good if he or she is not competent, and in the absence of competence, the risk of doing harm rises dramatically. Nonetheless, the director continues, professional ethics embodies more than competence. Much of ethics has to do with how psychologists treat people in their professional roles. Competence may be considered a foundation of professional ethics, but it is not the sole foundation. Competence is a necessary but not a sufficient condition of psychology’s ethics. These two anecdotes capture common misperceptions about ethics. How, then, might one define ethics, and why is having an ethics code important? We define ethics in a simple but hopefully not simplistic manner. In our definition, ethics is thinking about reasons in terms of values in a manner that is open to public scrutiny. This definition of ethics has three components: First, when it comes to

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professional ethics, psychologists are prepared to give reasons for the choices they make. Ethical decision making, therefore, always begins with why, as in, “Why did I choose this course of action over another? Why did I reject that course of action? Why did I give one value precedence over another competing value?” (More information on ethical decision making can be found in Chapter 4 of this volume.) Second, the reasons psychologists give for their ethical decision making are placed in the context of psychology’s values. The Ethics Code begins with five principles: Beneficence and Nonmaleficence, Fidelity and Responsibility, Integrity, Justice, and Respect for Peoples’ Rights and Dignity. Psychologists’ ethical reasoning is based on these five principles. An ethical dilemma arises when a tension exists between two or more values, in which case the psychologist must determine which value takes precedence. Examples of ethical dilemmas include choosing between confidentiality and safety in a duty to warn or protect situation that pits beneficence and respect for privacy against one another or addressing a terminally ill patient’s wish to commit suicide that pits beneficence and self-determination against one another. In each of these instances, two of psychology’s core values are in tension, and the psychologist must decide which of the values will give way to the other. Although these choices have risk management implications, the focus of an ethical analysis is on how to resolve the dilemma between two competing values, each of which is good in and of itself. The focus of a risk management analysis is somewhat different, insofar as a risk management analysis is conducted to manage the psychologist’s exposure to legal liability. Nonetheless, some authors base their risk management strategies on overarching ethical principles, so that risk management may be grounded in ethics. (More information on risk management can be found in Chapter 19 of this volume.) Third, ethics involves public scrutiny. Psychology is a profession that is practiced within the context of the society in which psychologists live. An inextricable link exists between psychologists’ ability to practice the profession and societal norms. As two examples, psychologists in clinical practice

receive a license from the state, and research psychologists submit their proposals to institutional review boards governed by federal regulations. At times, psychologists may be called on to explain their reasoning to a group of peers, that is, to subject their reasoning to public scrutiny. Such public scrutiny may consistent of a hearing before a licensing board, ethics committee, or institutional review board. Public scrutiny does not mean disclosure in a public forum such that confidentiality is no longer protected. Rather, public scrutiny means that the work and reasoning of the psychologist is made available to an entity with a review function. This definition of ethics—thinking about reasons in terms of values in a manner that is open to public scrutiny—implies that ethical decision making involves a process of weighing and balancing the values of the profession. Brief passages from three professional codes of ethics illustrate the centrality of the ethical decision-making process to the ethical practice of the profession. Process is central to each of these codes. It is noteworthy how these passages highlight common themes: reasonable differences of opinion regarding how values ought to be weighed and balanced against one another, the role of the individual member’s informed judgment or conscience in the process of ethical decision making, and the public scrutiny that is part of practice in a profession.

APA Ethics Code In the process of making decisions regarding their professional behavior, psychologists must consider this Ethics Code in addition to applicable laws and psychology board regulations. In applying the Ethics Code to their professional work, psychologists may consider other materials and guidelines that have been adopted or endorsed by scientific and professional psychological organizations and the dictates of their own conscience, as well as consult with others within the field (APA, 2010, Introduction and Applicability).

National Association of Social Workers Code of Ethics Reasonable differences of opinion can and do exist among social workers with respect to the ways in 45

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which values, ethical principles, and ethical standards should be rank ordered when they conflict. Ethical decision making in a given situation must apply the informed judgment of the individual social worker and also should consider how the issues would be judged in a peer review process during which the ethical standards of the profession would be applied (National Association of Social Workers [NASW], 2008, Purpose of the NASW Code of Ethics).

American Counseling Association Code of Ethics When counselors are faced with ethical dilemmas that are difficult to resolve, they are expected to engage in a carefully considered ethical decisionmaking process. Reasonable differences of opinion can and do exist among counselors with respect to the ways in which values, ethical principles, and ethical standards would be applied when they conflict. Although no one ethical decision-making model is the most effective, counselors are expected to be familiar with a credible decision-making model that can bear public scrutiny and its application (American Counseling Association, 2005, Purpose). These passages illustrate a strong convergence in how three different associations approach the process of resolving ethical dilemmas. This convergence suggests that different disciplines in American society have reached a degree of consensus on how mental health professionals should approach ethical dilemmas in their professional lives. A definition of ethics and a review of how professional associations address ethical decisions presume a more fundamental question: Why should a psychological organization have an ethics code? After all, many laws, regulations, and policies govern the practice of psychology, and one could argue that yet another document setting forth obligations and prohibitions is unnecessary. The Canadian Code of Ethics for Psychologists (Canadian Psychological Association, 2000) provides a compelling reason for why a state-sanctioned profession should have a text whose role is to set forth the ethics of the profession.

Canadian Code of Ethics for Psychologists Every discipline that has relatively autonomous control over its entry requirements, training, development 46

of knowledge, standards, methods, and practices does so only within the context of a contract with the society in which it functions. This social contract is based on attitudes of mutual respect and trust, with society granting support for the autonomy of a discipline in exchange for a commitment by the discipline to do everything it can to ensure that its members act ethically in conducting the affairs of the discipline within society. In particular, the discipline must make a commitment to ensure that each member will place the welfare of the society and individual members of that society above the welfare of the discipline and its own members. By virtue of this social contract, psychologists have a higher duty of care to members of society than the general duty of care that all members of society have to each other (Canadian Psychological Association, 2000, Preamble, Introduction). This passage from the Canadian Code of Ethics for Psychologists gives a clear and compelling reason why a discipline should have an ethics code. The reason is that an ethics code embodies a foundation of the social contract, a commitment by the discipline to the society to ensure that members of the profession—who practice by virtue of permission by the state—abide by a “higher duty of care.” One could say that defining this higher duty of care is the work of “doing ethics.” It is fruitful to consider that a member of the discipline should read an ethics code on many levels. Most superficially, a code can be viewed as a list of ethical obligations and prohibitions, a laundry list of do’s and don’ts. This manner of reading an ethics code is entirely legitimate and can be considered a starting point for introducing new students and trainees to the ethics of the profession. If one adopts a development perspective on ethics education, a firm grounding in the boundaries of ethical practice is an essential aspect of an introductory course. On a somewhat deeper level, an ethics code can be read as a guide to the values of the profession. APA’s Standard 1.05, Reporting Ethical Violations, provides an excellent example. Consider a competent adult patient who discloses to a clinical or counseling psychologist that she has had a sexual involvement with a previous treating psychologist. After several sessions, the current psychologist finds the patient’s narrative about the sexual involvement

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highly credible and concludes that the previous treating psychologist may well be a sexual predator, given the totality of the patient’s description of the events in question. The current psychologist has a strong desire to call the behavior of the previous psychologist to the attention of the licensing board. The psychologist reads Standard 1.05, Reporting Ethical Violations, in the Ethics Code: If an apparent ethical violation has substantially harmed or is likely to substantially harm a person or organization and is not appropriate for informal resolution under Standard 1.04, Informal Resolution of Ethical Violations, or is not resolved properly in that fashion, psychologists take further action appropriate to the situation. Such action might include referral to state or national committees on professional ethics, to state licensing boards, or to the appropriate institutional authorities. This standard does not apply when an intervention would violate confidentiality rights or when psychologists have been retained to review the work of another psychologist whose professional conduct is in question. This psychologist is in an ethical dilemma that potentially pits protecting the public (Principle B, Fidelity and Responsibility) against the patient’s right to self-determination (Principle E, Respect for People’s Rights and Dignity). Standard 1.05 helps the psychologist resolve this dilemma. According to Standard 1.05, in the context of treating a competent adult client, protecting the public yields to client autonomy. The psychologist will not disclose any identifying information or take any action that risks such a disclosure without the consent of the client. However much the psychologist may wish to take action to call this psychologist’s behavior to the attention of the licensing board or an ethics committee, the Ethics Code gives precedence to the client’s autonomy so that client consent is necessary before the disclosure. The client may well consent to the psychologist’s disclosing information to an adjudicatory body. This decision, however, rests with the client and not with the psychologist.

This analysis raises two exceptions. First, if the client were a minor, it is very likely that a mandatory child abuse reporting law will require the psychologist to report the sexual involvement. In this instance, no Standard 1.05 “confidentiality right” would be violated because such statutes generally explicitly waive confidentiality in the context of child abuse or neglect. Even without an explicit waiver, Standard 4.05, Disclosures, the disclosure would be allowed given the statute’s mandate to disclose information. Standard 4.05 allows disclosures for the purpose of protecting children from harm. Second, in jurisdictions that require reporting a sexual involvement between health professionals and a client or that require reporting a violation of the jurisdiction’s statutes or regulations, confidentiality rights might again be waived. In these two exceptional cases, an outcome different than the initial analysis might be permitted or even required given the relevant confidentiality laws. Thus, resolving this ethical dilemma must be placed in the context of society’s laws governing the practice of the profession. Reading the Ethics Code may not be enough for the psychologist to resolve the dilemma because correctly interpreting the psychologist’s ethical obligations may depend on the jurisdiction’s law. The Ethics Code can be read in at least one more way in addition to reading it as a laundry list of ethical obligations and prohibitions and as a guide to the values of the profession. Behind every rule is a reason. Psychologists can read the Ethics Code and ask whether the Ethics Code gets it “right,” that is, whether the rule adequately advances the reason behind the rule. This way of reading the Ethics Code is enormously important because it is one of the impetuses behind revising the Ethics Code. APA published its first ethics code in 1953. The 2010 Ethics Code is the 12th version. In each revision process, one of the questions posed in reviewing the Ethics Code is whether the standards adequately promote the goods APA seeks to promote and adequately prevent the harms APA seeks to prevent. Reading the Ethics Code with a critical eye therefore represents an important contribution to moving forward the ethics of the profession. We encourage all psychologists to approach the Ethics Code in this manner. 47

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This discussion should not leave the reader with the impression that the APA Ethics Code can, or even should, govern every dilemma a psychologist will encounter. Many areas of professional activity are outside the “realm” of ethics enforcement under the APA Ethics Code. As three examples, a psychologist may decide not to engage in pro bono work, even though the Ethics Code encourages psychologists “to contribute a portion of their professional time for little or no compensation” (Principle B, Fidelity and Responsibility). Because the principles in the Ethics Code are aspirational rather than enforceable, a psychologist who does not give professional time without compensation could still abide by all the enforceable standards in the Ethics Code and thus not be considered an “unethical” psychologist according to this definition. Second, practice guidelines govern a number of areas such as record keeping and child custody evaluations. These guidelines are not part of the Ethics Code, so departing from them would not necessarily constitute unethical behavior. Guidelines nonetheless can be helpful to psychologists in identifying sound practice. Finally, many psychologists inform themselves about international codes of ethics. Although such codes, which have proliferated in recent years, do not provide the sole basis for an ethics action by the APA in an ethics committee proceeding, they may be helpful to psychologists in more clearly defining what constitutes ethical behavior in different countries and cultures. Thus, psychologists should be aware of the benefits of adhering to the APA Ethics Code as well as the benefits of the many other resources available to them. THE APA ETHICS PROGRAM: AN OVERVIEW Professional ethics does not exist in a vacuum. It exists in the context of a defined discipline that very likely has an organization that represents the members’ interests. One aspect of a professional group will be promoting the ethics of the profession. Generally, an association’s ethics office or ethics officer, working together with an ethics committee, will carry out this function. 48

A frequent misunderstanding about association ethics programs is that they are able to take action on a member’s license. Professional associations may be recognized by the state in various ways, but nonetheless they generally remain private entities. As a result, association ethics programs do not have the authority to remove an individual’s ability to practice; only the relevant jurisdiction has this power. For a variety of reasons, certain association ethics programs offer ethics education and consultation and do not adjudicate ethics matters. Thus, the APA’s ethics program offers only one example of how a professional organization addresses ethics as part of its work. APA’s ethics program consists of the Ethics Committee and the Ethics Office. The Ethics Committee is composed of eight members who are elected by APA’s governing body, the Council of Representatives. One of the eight members is a public member. The other seven are members of the APA chosen to fill slots that represent issues that frequently come before the Ethics Committee as well as different geographic areas of the Association’s membership. Members serve 3-year terms and are joined in their work by Ethics Committee associates who are chosen directly by the Ethics Committee members (rather than being elected by the Council of Representatives). Associates are like full members in every respect except they do not have a final vote on Ethics Committee matters. The second part of the APA’s ethics program consists of the Ethics Office. The Ethics Office is composed of APA staff hired by APA’s chief operating officer. The Ethics Office staff assists and supports the Ethics Committee in all its functions, in addition to having such functions as offering educational workshops that the staff provides on its own initiative. The goal of APA’s ethics program, both the Ethics Office and the Ethics Committee, is to promote ethics in psychology. The Ethics Office and Ethics Committee do so in four ways: adjudication, education, consultation, and special projects. The discussion of ethics consultation is lengthier than the other three discussions and is designed to convey both the importance of ethics consultation and the process by which the APA

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Ethics Office provides a consultation in a complex dilemma.

Ethics Adjudication Ethics adjudication consists of the Ethics Committee, with the assistance of the Office staff, reviewing and responding to complaints against APA members. Cases may come before the Ethics Committee in three ways. First, an individual may file an ethics complaint against an APA member that claims the member has violated the Ethics Code. Second, an entity such as a licensing board or court of law may render a serious decision against an APA member, and the adverse decision comes to the attention of the Ethics Committee. The first path is called a complainant matter, and the second path is called a show cause matter because the member must now show cause why he or she should not be expelled from APA. One important note about show cause matters is that only matters deemed expellable reach the Ethics Committee through this path. Third and finally, the Ethics Committee may hear a sua sponte case, which occurs when the Ethics Committee initiates an ethics case on its own accord by virtue of some information in the public domain. As an example of how a sua sponte matter begins, a newspaper may carry a story about a psychologist alleged to have engaged in insurance fraud or sexual improprieties with a patient. Every case that comes before the Ethics Committee is a complainant, show cause, or sua sponte matter. Investigations are closed if they do not meet criteria for becoming cases. The Ethics Committee hears cases, assisted in its investigation by the Ethics Office staff. The Ethics Committee then makes a recommendation, which, for all show cause cases and any other cases involving expulsion, ultimately go to the Board of Directors. The Board of Directors has the final determination regarding the resolution of the case. Generally, cases at both the Ethics Committee and the Board of Directors level are reviewed on the basis of materials submitted by the psychologist alleged to have engaged in inappropriate behavior. The exception is a formal hearing, which is offered in complainant and sua sponte cases following an Ethics Committee recommendation of expulsion, the most serious sanction. At a formal hearing,

the psychologist appears in person and has the prerogative to have an attorney present. APA ethics adjudications are conducted under the provisions of the Ethics Committee’s “Rules and Procedures” (APA, Ethics Committee, 2002).

Ethics Education The second function of the ethics program, in addition to adjudicating ethics cases, is ethics education. In the late 1990s, the APA Board of Directors reviewed the ethics program, although historically its function had focused on adjudication. The Board of Directors requested that the Ethics Committee and Ethics Office enhance APA’s ethics education efforts. Over the next several years, significant efforts were put into developing an education aspect to the program, and currently, APA offers 40 to 50 ethics workshops and seminars across the country each year. Part of the education program involves a student ethics writing prize, sponsored jointly with APA’s graduate student program, and travel grants to the biennial multicultural conference and summit. A goal central to these education efforts is to promote thinking about ethics in a preventative manner so that problems are identified and addressed before they become violations. The education program seeks to promote interest in ethics among psychology students and trainees.

Ethics Consultation The third function of the ethics program, in addition to adjudication and education, is ethics consultation. The Ethics Office staff answers phone calls from APA members and the public each working day. Typical questions involve providing services over the Internet, billing and the use of collection agencies, appropriate termination, multiple roles and relationships, exceptions to confidentiality, and media ethics. Less frequently, but nonetheless on a regular basis, the Ethics Office receives questions regarding psychologists’ stolen cars with charts in them and stolen laptops with patient records. Gifts, bequests in wills, and a psychologist’s desiring to adopt a child the psychologist has met in a clinical setting are also subjects of requests for consultation. Given that APA has approximately 150,000 members, associates, and affiliates, all of whom have the 49

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ethics program as a resource, it is not surprising that the Ethics Office receives calls on such a wide range of subjects. In addition to responding to questions received by phone, the ethics program also has electronic means of responding to members’ requests for consultations. In such cases, the Ethics Office and Ethics Committee may work together to provide written responses. That offering ethics consultations has become central to the work of the Ethics Office is natural given the importance of consultation in the professional life of an ethical psychologist. The Preamble to the Ethics Code remarks on the role of consultation: The development of a dynamic set of ethical standards for psychologists’ work-related conduct requires a personal commitment and lifelong effort to act ethically; to encourage ethical behavior by students, supervisees, employees, and colleagues; and to consult with others concerning ethical problems. Ethics consultation is one means by which psychologists remain connected to the community of their peers. Consultation is a check on impulses, a way of ensuring that idiosyncratic perspectives remain grounded in good science, and a reminder that openness to the perspective of one’s professional colleagues can be a good antidote to conflicts of interest and to absolute certainty regarding the correctness of one’s position. Consultation can be sought when situations are upsetting and it is useful to help regain emotional equilibrium by talking things out, or to double-check one’s thinking on a particular situation. Consultations also have the benefit of reducing a psychologist’s exposure to legal liability. On a practical level, offering ethics consultation can be a complex endeavor. One complexity is the necessity of differentiating ethical issues from legal, clinical, and risk management issues, all of which are often—and sometimes inevitably—embedded in calls to the Ethics Office and Ethics Committee. Psychologists contact the Ethics Office when they are faced with a complex dilemma. Simple or clear situations rarely stimulate a psychologist to contact 50

APA. Situations and dilemmas are often complex precisely because they contain aspects that reach beyond ethics. Frequently, therefore, a primary task in responding to a request for an ethics consultation is to identify the ethical issues and to examine the relationship between the different kinds of issues that the call presents. Several examples of calls that come to the Ethics Office illustrate this differentiation process. Psychologists call the Ethics Office and ask about information they have received in session that may require a duty to file a mandatory child abuse report to the local child protection agency. The question regarding whether the psychologist must file the report is first a legal question: The psychologist must determine whether the information meets the reporting requirement in the relevant jurisdiction. After this question is answered, the psychologist then applies the Ethics Code. Standard 4.05, Disclosures (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law. (b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. In the same manner, a psychologist may contact the Ethics Office and ask whether he or she now has a duty to warn or protect by virtue of some threatening communication a client has made. For both the mandatory child abuse reporting call and the duty to protect or warn call, the ethical analysis rests on the legal analysis. When the psychologist determines

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whether a legal mandate to disclose is present, the psychologist may then apply Standard 4.05. This differentiation is an important aspect of ethics consultation because a legal question must be answered before determining how the Ethics Code applies. How the Ethics Code will apply therefore will depend on a legal analysis. Providing an ethics consultation may thus highlight the close and important relationship between ethics and law by demonstrating that to interpret a psychologist’s ethical obligation correctly may require knowledge of the jurisdiction’s law. Another example of the differentiation between legal and ethics questions may arise in the context of treating children whose parents are divorced. A psychologist will call the Ethics Office, indicating that a single parent with joint legal custody has brought a child in for treatment. The psychologist asks whether the single parent is able to provide adequate consent to treat the child. Again, in this instance, the ethical analysis will follow on the legal analysis. Standard 3.10, Informed Consent (a) When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code. (b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. What constitutes appropriate informed consent for treating a child will depend on who is “a legally

authorized person.” This question, in turn, will depend on the jurisdiction’s law. In certain jurisdictions, it may be that a single parent with legal custody is allowed to consent to psychological treatment without the consent or even knowledge of the other parent. In other jurisdictions, it may be necessary that both parents provide consent or at the very least both parents be informed about the treatment. As with mandatory child abuse reporting and duty to protect or warn, consent to a child’s treatment in the context of divorce is first a legal question on which the ethical analysis rests. One implication is that for the purposes of the consultation, the Ethics Office will refer the psychologist to an individual with expertise in the jurisdiction’s law. Rendering such legal determinations lies outside of the APA Ethics Office’s expertise. In differentiating ethics from legal, clinical, and risk management considerations, it is essential to have a broad view of what kinds of questions belong to which domain. The ability to differentiate these kinds of questions from one another is important for two reasons. First, different kinds of questions require distinct expertise. As stated previously, the APA Ethics Office does not—nor could it—have expertise in the specific mental health laws of every jurisdiction. Knowing what aspects of a situation rest on knowledge of a specific jurisdiction’s laws therefore is essential in determining when to refer the psychologist to an attorney with that specific expertise. Second, the process of offering a consultation entails assisting the psychologist to integrate ethical, legal, clinical, and risk management perspectives into a coherent response. The integration aspect to the consultation process rests on a clear differentiation. For both these reasons, offering ethics consultation involves determining what kinds of questions are being asked. It is sometimes a challenge to differentiate clearly and definitively what aspects of a situation belong in the legal, clinical, risk management, and ethical categories. Nonetheless, a generally adequate way of differentiating and categorizing the issues can be used. The legal issues are those that depend on the relevant statutes and regulations. The question posed from the legal question is, therefore, 51

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is this course of action required by or consistent with the relevant law? The clinical issues are those that relate to the goals of the treatment or assessment. The question posed from the clinical perspective is, therefore, will this course of action further the treatment or assessment goals? The risk management issues are those that relate to the psychologist’s exposure to legal liability. The question posed from the risk management perspective is, therefore, will this course of action expose me to an undue degree of legal liability? The ethical issues are those that relate to the APA Ethics Code and the psychologist’s informed professional judgment regarding how to abide by the Ethics Code. The questions from the perspective of ethics are, therefore, what course of action is most consistent with the Ethics Code, and how will I best do right by my client and other people affected by this decision? After having differentiated these questions from one another and integrated the answers into a coherent response, the psychologist will be able to move forward. This differentiation and integration is central to the process of obtaining an ethics consultation.

Special Projects and Issues The fourth and final function of the ethics program, in addition to adjudication, education, and consultation, is special projects. Professional ethics can be viewed from a developmental perspective. As the field of psychology evolves, new issues emerge that highlight new ethical challenges for psychologists. As these challenges crystallize, they become incorporated into the Ethics Code. A review of the Ethics Code’s history illustrates how the evolution of the field is reflected in the Ethics Code. As examples, ethical standards that address work in organizations, such as Standard 3.11, Psychological Services Delivered to or Through Organizations, are relatively recent additions in the context of the Ethics Code’s six-decade history: (a) Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended 52

recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probable uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions of such services to appropriate persons. This standard is the result of the involvement of industrial and organizational psychologists in the most recent revision of the Ethics Code and represents an important contribution to the ethics of this area of practice. Another example of the evolving nature of psychological ethics is found in Standard 7.04, Student Disclosure of Personal Information, which resulted from the active involvement of a graduate student on the Ethics Code Task Force, the task force charged with drafting the 2002 Ethics Code: Psychologists do not require students or supervisees to disclose personal information in course- or program-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychological treatment, and relationships with parents, peers, and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or professionally related activities in a competent manner or posing a threat to the students or others. Standards 3.11 and 7.04 illustrate how individuals from specific areas of the field can identify possible harms and contribute their knowledge to the Ethics Code revision process to facilitate the growth

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and development of psychologists’ professional ethics. Since the last revision of the Ethics Code, which was adopted in August 2002 and became effective in June 2003, two issues have emerged that have come to the attention of the Ethics Office and Ethics Committee. These issues are the involvement of psychologists in military interrogations, and the ethical aspects of psychologists responding to international humanitarian disasters. A review of the process by which APA addressed the role of psychologists in military interrogations illustrates how APA responds to events in society that affect psychologists and psychology. The involvement of psychologists in military interrogations has challenged APA on many fronts. Memos written during the George W. Bush administration gave legal permission to engage in behaviors that would meet virtually any psychologist’s definition of torture. In response, the APA Council of Representatives passed a series of resolutions, and the APA membership adopted a resolution that established APA’s position on the issue of appropriate techniques of interrogation and the nature of settings in which psychologists could do national security–related work. APA has a 20-year history of statements against torture, and the Council of Representatives stated repeatedly that engagement in torture and abuse was always and in every instance unethical. These statements, however, did not elaborate on what constitutes torture. In response to techniques that were being used on detainees, the Council of Representatives adopted a resolution explicitly prohibiting specific techniques of interrogation (the APA website contains a timeline of all APA actions related to the interrogation issue at http://www.apa.org/news/press/ statements/interrogations.aspx). In addition to the Council of Representatives prohibiting specific behaviors, in September 2008, the APA membership passed a petition resolution that addressed the issue of setting: Be it resolved that psychologists may not work in settings where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention

Against Torture and the Geneva Conventions) or the US Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights. (APA, 2008) In June 2009, the Ethics Committee issued an explicit statement that there is no defense to torture under the Ethics Code. Finally, in February 2010, the Council of Representatives amended the sections of the Ethics Code that addressed conflicts between ethics and law and between ethics and organizational demands. Previously, these sections had stated that when faced with such a conflict, a psychologist would engage in a process of attempting to resolve the conflict. If the attempt at resolution was unsuccessful, the Ethics Code was silent regarding the psychologist’s further ethical obligations. The Council of Representatives amended the Ethics Code to state that the Ethics Code does not offer a defense to a violation of human rights. The amended version of Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, states, If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. Amending the Ethics Code outside of a full revision—a rare occurrence in the history of APA’s ethics program—was the culmination of intense discussion and debate about the role of psychologists and the relationship between ethics and law in the context of a legal framework that APA members concluded did not adequately protect the rights, welfare, and interests of detainees in U.S. custody. 53

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The actions of the APA members, the Council of Representatives, and the Ethics Committee over a relatively brief period of time highlight the impact the issue of military interrogations has had on the APA. These actions also highlight the evolving nature of psychology’s ethics and how APA has addressed an issue that emerged in the context of events in American society that had significant implications for members of APA both as citizens and as psychologists. (More information on military interrogations can be found in Chapter 5 of this volume.) THE STRUCTURE AND CONTENT OF THE 2010 ETHICS CODE: AN OVERVIEW The 2010 Ethics Code is divided into four parts: the Introduction and Applicability section, the Preamble, the Ethical Principles, and the Ethical Standards. The purpose of the Ethics Code is found in the Preamble: This Ethics Code is intended to provide specific standards to cover most situations encountered by psychologists. It has as its goals the welfare and protection of the individuals and groups with whom psychologists work and the education of members, students, and the public regarding ethical standards of the discipline. The entire Ethics Code should be read and applied in the context of this passage setting forth the Code’s purpose.

History of the Ethics Code APA published its first ethics code in 1953, nearly 6 decades after the Association was founded. This timing makes sense if one places ethics in a developmental perspective. Over time, psychologists had come to realize that their work could lead to significant benefits for individuals and for society. During this time, psychologists also were learning that significant harms could result when their techniques were not applied properly. The discovery of these harms led APA to begin the process of developing its first ethics code. The history of the APA’s ethics codes can be traced in terms of several key concepts or processes. 54

The first is the unique origin of the first formal code in APA’s use of the critical-incident method. Members of APA were asked to “describe a situation they knew of first-hand, in which a psychologist made a decision having ethical implications, and to indicate … the ethical issues involved” (APA, 1953, p. vi). This process led to the first APA ethics code, published in 1953, which was 171 pages and included 310 rule elements. This level of detail was abandoned in the 1959 revision, amid criticism that the code was too long, codified etiquette, and was redundant. APA addressed removing the original incidents from the code by requesting that the Ethics Committee develop a casebook that would anchor the code in behavioral descriptions. These behavioral descriptions are the precursors of the ethical standards in the 2010 Ethics Code. A second process has been the evolving role of enforcement of the Ethics Code. Even before adoption of an ethics code, APA took action on concerns about the behavior of its members. While considering whether to have a formal ethics code, committees took action “informally.” Later, these actions were taken by the Ethics Committee, but with few rules for the process of handling complaints. An expulsion was handled by having the member appear before the Council of Representatives. The rules evolved over the years until the bylaws were changed to provide that the Ethics Committee would adopt formal rules, which the Board of Directors would approve on behalf of the Council of Representatives. Again, if one places the evolution of APA’s Ethics Code in a developmental framework, it is clear that the processes used by APA to discipline members in the early years of the Association would not withstand 21st-century legal scrutiny. Two major events in the late 1980s and early 1990s influenced the further development of the Ethics Code. First, the Bureau of Competition of the Federal Trade Commission conducted an investigation and found several provisions in the code of concern. APA entered into a consent agreement in which the Association agreed to rescind several principles in the code that restricted how psychologists related to their work in the public domain. The less obvious but no less important effect of the Federal Trade Commission action was for APA to

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enhance the procedural safeguards for members under investigation. Although a number of such safeguards were already in place, the Federal Trade Commission action stimulated a significant enhancement of the “Rules and Procedures” (APA, Ethics Committee, 2002) that govern the Ethics Committee’s work. The second event in the development of the APA code during this time was a North Carolina court ruling. The court found that several provisions in the APA Ethics Code were “unconstitutionally vague for purposes of being cited for specific violations” (White v. the North Carolina State Board of Examiners of Practicing Psychologists, 1990). The court found that psychologists were not given sufficient specificity regarding what behaviors were considered ethics violations that could lead to sanction by the North Carolina licensure board. Because North Carolina was using the APA Ethics Code for its standards and such specificity is considered an element of fairness in a legal proceeding, this action had an impact on APA and other licensure boards. Until the 1992 APA Ethics Code revision, there was no differentiation between aspirational and enforceable provisions in the code. The White v. North Carolina Board case was a prime motivation in differentiating principles that are aspirational in nature from enforceable ethical standards that could form the basis of a sanction. Another important concept in the evolution of the Ethics Code has been the view of the code as a living document. Revisions to the code reflect psychology’s development as a field and in society as a whole. One could use the Ethics Code as a window into the relationship between psychology and society over the past six decades. The addition in the 1965 revision of a standard regarding use of drugs in research came in response to the drug culture of the 1960s. As another example, the original code included provisions that could be interpreted to prohibit sexual involvement with clients. In light of society’s growing awareness of sexual involvements between mental health professionals and clients and the resulting harms, it was felt that a rule explicitly prohibiting this behavior was required. Such a rule was added in the 1977 code. A rule regarding sexual involvement with former clients was added in the

1992 code. Likewise, the amendments adopted by the Council of Representatives in 2010 were a response to concerns that the 2002 Ethics Code could be interpreted to allow psychologists to engage in the abuse of detainees and thus were a reflection of and response to current events in society. A process that occurred within the Association and that had a significant impact on the ethics program involved discussions during the late 1990s regarding the possibility of discontinuing the adjudication aspect of APA’s ethics program, that is, of stopping ethics enforcement. The Board of Directors reviewed the entire ethics program with a focus on whether APA’s ethics resources were being used effectively. The Board of Directors affirmed continuing ethics adjudication but directed the Ethics Office and Ethics Committee to enhance their ethics education and consultative functions. To ensure that the resources were available for these initiatives, the Board of Directors streamlined the adjudication process by allowing members to resign when under ethics investigation and by automatically expelling members who had received discipline such as loss of license or conviction of a felony. The board determined that as part of this process, a member would be given the opportunity to show cause why expulsion from APA was not appropriate. The substance and process of the ethics program has evolved since APA published its first Ethics Code in 1953. This evolution reflects developments of the field and events in society as well as a greater emphasis on procedural protections afforded to psychologists who are under ethics scrutiny. A thorough and much lengthier history would review each of the Ethics Code’s 10 revisions, including the 2010 amendments, but this review provides a basic overview of how the 2010 Ethics Code attained its current form.

Introduction and Applicability The Introduction and Applicability section has seven paragraphs, each of which conveys an important point about the Ethics Code’s application. The first paragraph distinguishes ethical principles from ethical standards. Principles in the Ethics Code are aspirational, whereas standards form enforceable 55

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rules of conduct. The first paragraph makes clear that the standards are not exhaustive and that silence in the standards regarding a particular behavior does not mean that the behavior is ethical or unethical for psychologists. The second paragraph distinguishes psychologists’ professional behavior from their behavior that is “purely private.” Purely private conduct is not within the Ethics Code’s purview, although behavior that constitutes a felony unrelated to the practice of psychology may fall within the Ethics Committee’s jurisdiction and result in a sanction by the Ethics Committee. The second paragraph also states that activities on the “telephone, Internet, and other electronic transmissions” fall within the Ethics Code’s purview. This point is important because psychologists increasingly engage in telemedicine and make use of social network sites. (More information on issues related to telehealth can be found in Volume 2, Chapter 10, this handbook.) The Ethics Code’s statement makes clear that the Ethics Code covers all psychologists’ professional activities regardless of the venue in which they occur. The third paragraph in the Introduction and Applicability section makes two points. First, membership in the APA commits one to abide by the Ethics Code. Second, a lack of awareness about an ethical standard is not an excuse for unethical conduct. The fourth paragraph addresses the process of ethics adjudication, which is largely governed by the Ethics Committee’s “Rules and Procedures” (APA, Ethics Committee, 2002). The fifth paragraph states that the Ethics Code is not intended as the basis for civil liability and should not be the sole foundation for a finding in a court action. The sixth paragraph explains how the words reasonably, appropriate, and potentially are used in the Ethics Code. In the process of revising the Ethics Code, these words became the subject of considerable discussion and debate. Certain members felt that such words could generate ambiguity about a psychologist’s ethical obligations and therefore should be avoided. Other members felt that such words provide flexibility in situations in which a psychologist would need to apply his or her informed, professional judgment. The drafters of the 2002 Ethics Code decided to retain the words for 56

four reasons. The drafters explained that these words (1) allow professional judgment on the part of psychologists, (2) eliminate injustice or inequality that would occur without the modifier, (3) ensure applicability across the broad range of activities conducted by psychologists, or (4) guard against a set of rigid rules that might be quickly outdated. The drafters gave special attention to the word reasonable: “The term reasonable means the prevailing professional judgment of psychologists engaged in similar activities in similar circumstances, given the knowledge the psychologist had or should have had at the time.” This explanation is important because it means that a psychologist should be held to the prevailing standard of psychologists working “in similar activities in similar circumstances” and thus limits the conditions against which a psychologist’s professional activities are to be measured. The seventh and final paragraph in the Introduction and Applicability section is a discussion of the process of ethical decision making and the appropriate response of psychologists confronted with a conflict between ethics and law. This paragraph gives a role to the psychologist’s own conscience in resolving ethical dilemmas, in addition to the role of the Ethics Code, laws and regulations, and policies adopted by other psychological associations. In terms of the relationship between ethics and law, the Introduction and Applicability section states that psychologists abide by the higher standard when the two differ. If a conflict exists between the two such that ethics and law cannot be reconciled, the Ethics Code sets forth a process for the psychologist to follow. A 2010 amendment to the Introduction and Applicability section clarifies that the Ethics Code may never be used to justify or defend a violation of human rights.

The Preamble The Preamble is a three-paragraph statement setting forth the goals of the Ethics Code and describing what is required in a psychologist’s professional commitment to act ethically. Two of the Preamble’s

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three paragraphs have been reproduced in this chapter. Central to the Preamble is its statement that the Ethics Code “provides a common set of principles and standards upon which psychologists build their professional and scientific work.” This sentence is important because it establishes that psychologists have a common set of principles and standards that govern their work. Although the Introduction and Applicability section, coming just a few sentences before the Preamble, identifies the psychologist’s personal conscience as having a role in ethical decision making, the Preamble soon makes clear that professional ethics is more than merely the application of a psychologist’s own judgment.

General Principles APA’s Ethics Code is based on principlism, an approach to ethics that begins with setting forth a set of principles from which can be derived rules for ethical behavior (Beauchamp & Childress, 2009). Different systems of ethics that use a principle-based approach vary in the number of principles they see as foundational. In addition, there is no universally agreed on manner to conceptualize these principles, so some authors may separate beneficence and nonmaleficence into two separate ethical principles. APA’s Ethics Code has five principles. Each principle has a paragraph that elaborates on the meaning of the principle for psychologists. The first principle is Principle A, Beneficence and Nonmaleficence, that is, do good and do no harm. The principle contains several core ideas: When psychologists’ obligations conflict, psychologists resolve conflicts in a manner that avoids or minimizes harm; psychologists are alert to conflicts of interest; and psychologists engage in self-care. This first principle can be viewed as the foundation of all psychology ethics, but the mandate to do no harm often is misunderstood to say that psychologists may never act in such a manner that will bring harm to an individual with whom they work. Filing a mandatory child abuse report regarding a client may harm the client. The good that comes from filing the mandatory report, however—protecting a vulnerable child— outweighs the harm to the client, and so filing the report is consistent with the Ethics Code. It is for this reason that the language under Principle A

states that psychologists attempt to avoid “or” minimize harm. Principle B, Fidelity and Responsibility, is about establishing trust with clients and others with whom psychologists work. Principle B also calls on psychologists to be aware of their responsibilities to society. Two additional concepts in Principle B have special importance to maintaining the ethics and the ethical identity of the profession. First, psychologists take responsibility for the behavior of their colleagues’ professional conduct. Second, psychologists should strive to contribute a portion of their time for pro bono activities. Principle B thus moves outward from a focus on psychologists’ ethical obligations to the individuals and groups whom they serve, to psychologists’ responsibility for the behavior of other psychologists, to psychologists’ willingness to give back to the community and society for little or no compensation. Principle C, Integrity, emphasizes accuracy, honesty, and truthfulness among psychologists. In short, Principle C says that psychologists should not lie, cheat, or steal. This principle can also be read in the context of the entire Ethics Code to crystallize and demonstrate the concept of an ethical dilemma. Social psychology has a long and distinguished history of conducting studies that involve deception. A tension exists between Principle C and the methodology of these studies: Accuracy, honesty, and truthfulness are pitted against the advancement of knowledge. This tension represents a dilemma because two core values—integrity and advancing the science of psychology—are in opposition. Standard 8.07, Deception in Research, provides guidance on how to resolve the tension: (a) Psychologists do not conduct a study involving deception unless they have determined that the use of deceptive techniques is justified by the study’s significant prospective scientific, educational, or applied value and that effective nondeceptive alternative procedures are not feasible. (b) Psychologists do not deceive prospective participants about research that 57

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is reasonably expected to cause physical pain or severe emotional distress. (c) Psychologists explain any deception that is an integral feature of the design and conduct of an experiment to participants as early as is feasible, preferably at the conclusion of their participation, but no later than at the conclusion of the data collection, and permit participants to withdraw their data. Standard 8.07 resolves the tension between accuracy, honesty, and truthfulness on the one hand and advancing science through a study using deception on the other through the mechanism of informed consent (8.07c). The relationship between Principle C and Standard 8.07 provides an example of how the standards may help psychologists resolve the tension between competing values in an ethical dilemma. Justice is Principle D. The Ethics Code uses the concept of justice as fairness to elaborate on Principle D. Fairness in Principle D means equal access and equal quality in the services psychologists offer. Principle D also highlights the issue of bias in the provision of services. This emphasis raises complex ethical questions. Principle D states the following: “Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.” At times, psychologists may choose to refer an individual to another psychologist for services. The basis for the referral may be that the referring psychologist does not feel competent to provide the requested services. At what point, however, the decision not to accept clients on the basis of characteristics such as age, gender, sexual orientation, or race becomes an issue of bias and unjust discrimination rather than an issue of professional competence is not always clear. Principle D calls on psychologists to be aware of how their own biases may have a role in these decisions. The statements against bias in Principle D foreshadow Principle E, Respect for People’s Rights and Dignity, which further elaborates on this concept. 58

Principle E focuses on two related but distinct concepts. The principle calls on psychologists to respect first “the dignity and worth of all people” and second “the rights of individuals to privacy, confidentiality, and self-determination.” The concepts are related because respecting an individual’s dignity and worth may entail respecting his or her privacy, confidentiality, and self-determination. The concepts are distinct because of cultural differences. Privacy, confidentiality, and self-determination may be viewed differently by non-Western cultures than they are in North American contexts. The concepts also are distinct because psychologists work with individuals whose ability to exercise self-determination is compromised in some measure, a possibility that Principle E explicitly recognizes, “Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision making.” Thus, respecting the dignity and work of people may have substantially different implications depending on an individual’s capacity to exercise self-determination. Resonating with Principle D, Justice, Principle E ends by identifying impermissible bases for bias and calling on psychologists to eliminate the effect of such biases in their work. Impermissible biases identified in Principle E include age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status. This list is another example of how the principles resonate with the standards. A number of standards also contain a list of these characteristics, which psychologists are prohibited from using as a basis for their actions.

Ethical Standards The Ethics Code has 89 ethical standards grouped into 10 sections. Each section addresses an area of ethics. The 89 standards are enforceable and thus establish minimum acceptable standards of conduct for psychologists. When the APA Ethics Committee receives an ethics complaint against a psychologist, the Ethics Committee examines which, if any, of the ethical standards the psychologist has violated. Although the psychologist’s behavior may have been

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inconsistent with one or more of the five ethical principles, to make a finding of unethical conduct in a complainant or sua sponte case the Ethics Committee must identify a specific standard that has been violated because standards, not principles, form the basis of an ethics action. Section 1 of the Ethics Code’s 10 sections is Resolving Ethical Issues and contains eight standards that address some aspect of the adjudicatory and ethics decision-making processes. Read as a whole, these standards set a tone for how psychologists apply the Ethics Code in their professional lives. The first standard in the Ethics Code (Standard 1.01, Misuse of Psychologists’ Work) obliges psychologists to “correct or minimize” misuse or misrepresentation of their work. The next two ethical standards (Standards 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, and 1.03, Conflicts Between Ethics and Organizational Demands) address how psychologists resolve conflicts between ethics and other obligations, such as those imposed by the law or by their workplace. The next two standards (Standards 1.04, Informal Resolution of Ethical Violations, and 1.05, Reporting Ethical Violations) address how psychologists respond to possible ethical violations of colleagues. The final three standards in the first section obligate psychologists to cooperate with ethics committees (Standard 1.06, Cooperating With Ethics Committees), prohibit psychologists from filling improper ethics complaints (Standard 1.07, Improper Complaints), and proscribe psychologists from acting against individuals solely for having filed or being the subject of an ethics complaint (Standard 1.08, Unfair Discrimination Against Complainants and Respondents). Section 1 of the Ethics Code highlights the centrality of ethics processes to the professional life of the individual psychologist and to the field of psychology as a whole. The section locates psychology within the context of a larger society by setting forth the relationship between the Ethics Code and other obligations in psychologists’ lives, such as those presented by the law and in the work setting. Finally, Section 1 defines psychologists’ obligations to be aware of the ethical conduct of their colleagues and

thus makes all psychologists responsible for the ethical practice of the profession. Section 2 of the Ethics Code, Competence, consists of six standards on various aspects of competence. This section distinguishes the 2002 Ethics Code from its predecessor the 1992 Ethics Code (APA, 1992), which did not have an entire set of standards devoted specifically to competence. This reorganization reflects how the drafters of the 2002 Ethics Code envisioned competence as a concept that should be addressed as unitary and cohesive within the Ethics Code. The first standard in Section 2 (Standard 2.01, Boundaries of Competence) emphasizes the necessity of competence in psychologists’ professional lives. The standard indicates that multiple paths to competence include “education, training, supervised experience, consultation, study, or professional experience.” This standard also recalls Principle E, Respect for Peoples’ Rights and Dignity, by identifying specific individual characteristics that may be essential for psychologists to consider in providing services. Standard 2.01 emphasizes competence across the spectrum of psychologists’ activities by explicitly addressing competence in forensic practice. This language regarding forensic work in the section on competence also distinguishes the 2002 Ethics Code from the 1992 Ethics Code, which had an entire section devoted exclusively to forensic work. The 2002 Ethics Code removed a separate forensic section. Matters covered in the 1992 forensic standards can be found throughout the 2010 Ethics Code, as the section on competence demonstrates. The second standard in Section 2 (Standard 2.02, Providing Services in Emergencies) creates an exception to the requirement of competence in emergency situations but requires psychologists without the relevant competence to stop working when the emergency ends or when others with the relevant competence are available. The third standard (Standard 2.03, Maintaining Competence) requires psychologists to maintain competence throughout their professional lives. The fourth standard (Standard 2.04, Bases for Scientific and Professional Judgments) underscores the science of psychology by stating that psychologists base their work on “established scientific and professional 59

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knowledge of the discipline.” The fifth standard (Standard 2.05, Delegation of Work to Others) imposes on supervisors the obligation to ensure that the work of supervisees and others is performed in a competent fashion. The sixth and final standard in Section 2 (Standard 2.06, Personal Problems and Conflicts) involves an issue that has received an increasing amount of attention in the professional literature. Standard 2.06 address psychologists’ responsibilities when a personal problem or conflict potentially interferes with their professional work. This standard highlights the importance of self-care in ensuring that psychologists are able to carry out their work-related responsibilities. In this way, Standard 2.06 “reaches into” a psychologist’s personal life by placing on psychologists an obligation to examine their personal behavior and be alert to times when events in their private lives may affect their work as psychologists. Section 2 in the Ethics Code requires psychologists to work within the boundaries of their competence. The section then grounds psychologists in the science of the profession. Finally, the section focuses psychologists inward to underscore the connection between the personal and the professional. Section 3 is Human Relations and has 12 standards. The standards in Section 3 cover a wide range of psychologists’ activities and are relevant to psychologists’ relationships with all the individuals and groups with whom psychologists work. The first three standards in Section 3 (Standards 3.01, Unfair Discrimination; 3.02, Sexual Harassment; and 3.03, Other Harassment) prohibit psychologists from engaging in discriminatory and harassing behaviors. Standards 3.01 and 3.03 relate to Principle E, Respect for Peoples’ Rights and Dignity, by prohibiting discrimination on impermissible bases that closely match Principle E’s list of characteristics. Standard 3.04, Avoiding Harm, can be considered the heart of Section 3 and even of the standards as a whole. The standard places on psychologists an obligation to avoid harm when it is avoidable and to minimize harm when harm cannot be avoided. By this twofold approach, the Ethics Code recognizes the complexity of psychologists’ work by acknowledging that in certain situations psychologists may not be able to avoid harm entirely. 60

Standards 3.05, Multiple Relationships, and 3.06, Conflicts of Interest, use similar language to address one of the most vexing ethical challenges to psychologists. Psychologists often misunderstand the Ethics Code to say that all multiple relationships are unethical. Rather, the Ethics Code gives a test to determine which multiple relationships are inappropriate. According to the standard, psychologists should avoid a multiple relationship that “could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm.” Standard 3.06 has similar language alerting psychologists to avoid a potential conflict of interest. These standards are important because they provide two related but distinct reasons why psychologists should avoid certain relationships: interference with professional duties and exploitation. Not all problematic multiple relationships are exploitative; that is to say, some multiple relationships are problematic not by virtue of exploitation but rather because they diminish the effectiveness, competence, or objectivity of psychologists in their professional role and thus create a risk of harm. Psychologists frequently provide services at the request of a third party. Psychologists who work in court settings, for employee assistance programs, and in schools may find themselves treating or assessing an individual who may not understand the nature of the relationships among the various parties. Standard 3.07, Third-Party Requests for Services, addresses such situations, largely through the mechanism of informed consent. Standard 3.07 requires psychologists to inform all parties involved about essential aspects of the arrangement. Standard 3.08, Exploitative Relationships, prohibits psychologists from exploiting those with whom they work. Standard 3.09, Cooperation With Other Professionals, states that psychologists cooperate with other professionals “in order to serve their clients/patients effectively and appropriately.” Standard 3.10 addresses informed consent, which is considered central to the ethical practice of all health care–related professions. The standard says that when engaged in any professional activity, psychologists obtain informed consent “in language

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that is reasonably understandable to that person,” and provides for certain limited exceptions when psychologists are not required to obtain informed consent. The standard says that psychologists seek the “assent” of individuals who are not legally capable of giving their informed consent and inform individuals of the nature of services that are mandated by law. Finally, the standard requires psychologists to document consent. Such documentation does not require psychologists to obtain signed, written consent forms. Rather, the standard requires that psychologists “appropriately” document consent, which may entail making a note in the chart rather than obtaining a form. Standard 3.11, Psychological Services Delivered To or Through Organizations, reflects the involvement of psychologists engaged in industrial and organizational work during the Ethics Code revision process. This standard is at heart an informed consent standard because it sets forth what information psychologists provide to their clients when psychologists work in an organizational setting. Finally, Standard 3.12, Interruption of Psychological Services, describes what steps psychologists take to prepare for an anticipated or unanticipated interruption in their services. Section 3 covers a wide range of relationships. It begins by prohibiting harassment and discrimination, continues by providing a test to determine when to avoid certain relationships, emphasizes the centrality of informed consent in multiple settings where psychologists work, prohibits exploitation and mandates cooperation, and finally requires that psychologists anticipate that their work may be interrupted for unanticipated reasons. Section 3 can best be described as ordering the fundamentals of the relationships that will constitute a psychologist’s professional life. Section 4, Privacy and Confidentiality, covers the concept of confidentiality. The seven ethical standards in Section 4 address different areas of psychologists’ work. The standards can be read as directing psychologists how to resolve the dilemmas that arise when confidentiality is in tension with other values of the profession such as doing good, avoiding harm, and advancing science. (More information on privilege can be found in Chapter 13 of this volume.)

Standard 4.01, Maintaining Confidentiality, emphasizes the centrality of confidentiality to psychologists. The standard states that “Psychologists have a primary obligation and take reasonable precautions to protect confidential information.” The standard then locates a psychologist’s obligations to maintain confidentiality under the APA Ethics Code in the context of other relevant laws and policies by continuing that psychologists protect confidentiality while “recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.” This caveat is important because psychologists work in a range of settings in which policies that are in tension with the Ethics Code may govern confidentiality. As a consequence, psychologists must negotiate competing tensions over when, how much, and to whom to disclose confidential information. Standard 4.02, Discussing the Limits of Confidentiality, is another standard in the Ethics Code that has informed consent as its underlying concern. Standard 4.02 requires psychologists to inform individuals and groups with whom they have a professional relationship about the limits of confidentiality. The standard says that psychologists provide this information at the beginning of the relationship “unless it is not feasible or is contraindicated.” This exception in the standard recognizes beneficence as a consideration that informs when and how the limits of confidentiality will be discussed. It would not be clinically appropriate to inform an individual in a crisis situation of all the limitations to confidentiality. Finally, the standard explicitly calls on psychologists to inform clients about the limits of confidentiality when electronic transmission is used. Standard 4.03, Recording, states that psychologists must obtain permission before recording voices or images. Standard 4.04, Minimizing Intrusions on Privacy, says that psychologists include in their reports only information relevant to the purpose of the communication. Psychologists write reports for a range of clients and often obtain information that, if disclosed, would have significant implications for an individual’s life, such as a criminal history or medical status. Standard 4.04 indicates that the psychologist should examine whether the information 61

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is relevant to the purpose of the communication. If the information is not relevant to the reason a report is being written, the information should not be included. Standard 4.04 also cautions psychologists to limit their disclosures of information to “persons clearly concerned” and for “appropriate scientific or professional purposes.” Standard 4.05, Disclosures, sets forth three conditions that allow a psychologist to disclose confidential information: client consent, legal mandate, and legal permission. Client consent is a frequent reason for disclosing confidential information and is consistent with the value of autonomy. Often clients want or even need psychologists to provide information to a third party on their behalf. In the absence of client consent, psychologists disclose information in response to a legal mandate, such as a mandatory child abuse report. In such an instance, a value other than confidentiality, such as protecting a vulnerable child, takes precedence over confidentiality. Mandatory child abuse reporting laws are a reminder that psychology is practiced in the context of a society with laws that affect the work psychologists do. Standard 4.05 also states that psychologists may disclose confidential information when they have legal permission to do so. As an example, the Health Insurance Portability and Accountability Act allows psychologists to share treatment-related information with other professionals for treatment purposes even in the absence of client consent. Standard 4.06, Consultations, allows psychologists to obtain information for the purpose of a consultation without consent “only if the disclosure cannot be avoided” and then requires psychologists to disclose only the minimum amount of information necessary for the purpose of the consultation. Standard 4.06 thus negotiates the tension between beneficence and confidentiality and gives precedence to beneficence when both goals cannot be met. Standard 4.07, Use of Confidential Information for Didactic or Other Purposes, addresses the disclosure of information in academic publications and at professional conferences. Standard 4.07 states that disclosures for didactic purposes are permitted with the client’s consent. In the absence of client consent, the material must be disguised or the disclosure must be legally authorized. Standard 4.07 raises a 62

complex and important dilemma for psychologists who use clinical material for didactic purposes. The standard allows disclosure without client consent if identifying information is disguised, but disguise inevitably represents a distortion of the material. Hence, disguise may complicate the very didactic mission that it is intended to further. Section 5, Advertising and Other Public Statements, has six standards that govern how psychologists present themselves in public forums. Several concepts are firmly embedded in Section 5. First, psychologists do not misrepresent themselves or their work. Second, when psychologists provide public advice or comment, they abide by the Ethics Code and ground their comments in their professional knowledge and experience. Third, psychologists do not exert undue influence over clients or potential clients for their own financial or business gain. Standard 5.01, Avoidance of False or Deceptive Statements, prohibits psychologists from making false or misleading statements about any aspect of their professional life. Standard 5.02, Statements by Others, places on psychologists the burden of ensuring that statements prepared by others on their behalf are not misleading. Standard 5.03, Descriptions of Workshops and Non-Degree-Granting Educational Programs, requires that psychologists provide accurate descriptions of non-degree-granting programs. Standard 5.04, Media Presentations, states that psychologists provide public advice or comment in a manner that is consistent with the Ethics Code and grounded in the psychologist’s “professional knowledge, training, or experience in accord with appropriate psychological literature and practice.” Standard 5.04 also prohibits psychologists from indicating that a professional relationship is created with the recipients of media-given advice. Standard 5.05, Testimonials, and Standard 5.06, InPerson Solicitation, address undue influence. These standards state that psychologists do not seek testimonials or solicit business from two classes of people: current clients and “other persons who because of their particular circumstances are vulnerable to undue influence.” In sum, Section 5 underscores the value of accuracy, honesty, and truthfulness, as embodied in Principle C, Integrity, and the value of

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nonexploitation, as embodied in Principle A, Beneficence and Nonmaleficence. Section 6, Record Keeping and Fees, has seven standards that address both how and why psychologists keep records as well as how psychologists make their fee arrangements and respond when they are not paid for their services. The relevance of this section for psychologists is highlighted by reviewing the extensive documentation requirements in federal and state law that govern clinical practice as well in federal regulations and institutional policies that govern psychological research. Regardless of their professional interests and expertise, psychologists will almost certainly engage in record keeping to document their work. Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, is one of the few ethical standards that explicitly sets forth reasons for the rule contained in the standard. Standard 6.01 gives five reasons why psychologists keep records: to assist in the provision of services, to allow for replication of research design and research analyses, to meet the requirements of the psychologist’s institution, to comply with the law, and to ensure accuracy of billing and payments. This standard illustrates how the Ethics Code can be used in multiple ways. The Ethics Code sets minimal standards of conduct. The Ethics Code can also serve as a guide for thoughtful psychologists in understanding the reasons behind the Code’s rules. Standard 6.01 says that keeping records has clinical, research, and risk management aspects, all of which may be helpful to psychologists and to the field of psychology. Standard 6.02, Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work, addresses three aspects of record keeping. Psychologists maintain confidentiality in all aspects of their record retention and maintenance, take steps such as encoding to protect confidentiality when third parties have access to records without the client’s consent, and make plans to protect the confidentiality of records in the case of withdrawal from practice or transfer of professional responsibilities. This standard’s emphasis on confidentiality resonates with Section 4, Privacy and Confidentiality, and highlights a central ethical concern of documentation: access to confidential

information by individuals not authorized to view the material. Standard 6.03, Withholding Records for Nonpayment, addresses a situation that clinical and counseling psychologists encounter with unfortunate regularity: clients who do not pay for services and who request records. Standard 6.03 prohibits psychologists from refusing to provide records for a client’s emergency treatment for the sole reason that the client has not paid for services. Standard 6.03 does not prohibit a psychologist from withholding records for reasons unrelated to nonpayment, such as clinical reasons, for example if the psychologist determined that reading the record could be harmful to the client. Standard 6.04, Fees and Financial Arrangements, is a wide-ranging standard that covers multiple issues related to fees and financial arrangements. The standard has an informed consent foundation by stating first, that psychologists reach an agreement “as early as is feasible” in the professional relationship regarding financial arrangements and, second, that anticipated limitations to services because of financing are likewise addressed at the outset of the professional relationship. The standard states that psychologists do not misrepresent their fees and that fee practices are consistent with law. Finally, Standard 6.04 allows psychologists to use collection agencies or legal means to collect an unpaid fee. To behave consistently with Standard 6.04 in collecting a fee, the psychologist must inform the client of the psychologist’s intent to collect the fee and disclose the minimum amount of information necessary to do so. Standard 6.05, Barter With Clients/Patients, allows barter when barter is not clinically contraindicated or exploitative. Standard 6.06, Accuracy in Reports to Payors and Funding Sources, requires psychologists to be accurate in their reports. Such accuracy includes not only the nature, timing, and extent of services provided but also the findings and diagnosis. Thus, Standard 6.06 prohibits psychologists from rendering diagnoses they know to be inaccurate to secure payment for treatment. Standard 6.07, Referrals and Fees, prevents psychologists from accepting fees solely for having made a referral. Standard 6.07 63

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does not preclude a psychologist from receiving a fee based on the administrative costs of transferring a client to another treating psychologist. Rather, the standard’s prohibition is for receiving a fee simply for the act of making the referral. Section 7, Education and Training, consists of seven standards that primarily are focused on protecting students and trainees from harm. This section benefited by the active involvement of a student representative on the Ethics Code Task Force during the revision process leading up to the 2002 Ethics Code. The standards in Section 7 promote informed consent and guard against exploitation and multiple relationships that are likely to be harmful to students. Standards 7.01, Design of Education and Training Programs; 7.02, Descriptions of Educational and Training Programs; and 7.03, Accuracy in Teaching, underscore two points fundamental to the ethics of training. The first point is that psychology training programs must adequately prepare students for the field. The second point is that academic and training programs must inform students about what the program as a whole and specific program courses offer. The ethical foundations for these two points are informed consent and nonexploitation. If programs accept students for training, the programs must provide students an adequate education and inform students of what they have to offer and will require. Standard 7.04, Student Disclosure of Personal Information, addresses what has been the source of considerable distress among psychology trainees: the requirement of disclosing personal information. This standard prohibits the required disclosure of a trainee’s “history of abuse and neglect, psychological treatment, and relationships with parents, peers, and spouses or significant others” except under two conditions. Such disclosures may be part of a program’s curriculum if the program has informed applicants. Second, the disclosure may be required if necessary to evaluate or treat a trainee whose personal problems are interfering with work-related responsibilities or pose harm to the student or others. Like Standard 7.04, Standard 7.05, Mandatory Individual or Group Therapy, addresses a problem that has caused difficulties in training programs, that of required psychotherapy. Standard 7.05 is consistent 64

with Standard 3.05, Multiple Relationships, by stating that students in programs that require psychotherapy be allowed to select psychotherapists who are unaffiliated with the program and that faculty members who are likely to evaluate students do not provide such psychotherapy. Standard 7.06, Assessing Student and Supervisee Performance, requires faculty to establish a “timely and specific” process for providing feedback to students. One benefit of Standard 7.06 is that students whose performance is not meeting program expectations are placed on notice and can respond accordingly. Standard 7.06 also states that students are assessed on their actual performance on the basis of “established program requirements.” The standard thus requires programs to inform students about what is required for successful completion of the program and to tell students who are not meeting a program’s expectations. Standard 7.07, Sexual Relationships With Students and Supervisees, resonates with Standard 3.05, Multiple Relationships, and Standard 3.08, Exploitative Relationships. This standard prohibits psychologists from having sexual relationships with students over whom they “have or are likely to have evaluative authority” or students or supervisees who are in the psychologist’s “department, agency, or training center.” This standard represents an expansion of the 1992 Ethics Code standard, which prohibited relationships only when the psychologist had evaluative authority over the student or supervisee. This expansion reflects the Ethics Code Task Force’s concern with the harms that could arise from sexual relationships between program faculty and trainees. Section 8, Research and Publication, has the most standards of any section, a total of 15. Section 8 sets forth the standards of conduct for psychologists who conduct research and publish in the areas of both human and nonhuman animal research studies. The central ethical concerns of Section 8 are informed consent, nonexploitation, and preserving the integrity of the academic enterprise. Standard 8.01, Institutional Approval, states that psychologists obtain institutional approval when required. This standard locates psychology in the scientific community whose research is governed by

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federal and state regulations. The standard does not preclude psychologists from obtaining review by an institutional review board even when not required, and many psychologists do so both because their research is improved and because such review is likely to reduce exposure to liability. Standards 8.02, Informed Consent to Research, and 8.03, Informed Consent for Recording Voices and Images in Research, are consistent with Standards 3.10, Informed Consent, and 4.03, Recording. Standard 8.02 sets forth the elements of informed consent to research and explicitly addresses what aspects of intervention research psychologists must discuss with patients. Standard 8.03 requires informed consent for recording voices or imagines, with two exceptions: naturalistic observations when it is not likely that the recording will harm the individuals observed and studies involving deception, when informed consent is obtained at a later stage in the research. Standard 8.04, Client/Patient, Student, and Subordinate Research Participants, emphasizes that students must be given the same protections as research participants because that is precisely what students are when they participate in research studies. Undergraduate pools are a means of obtaining participants on which much psychological research depends. Even if participating in a subject pool is an undergraduate course requirement, however, research conducted in college and university settings must comply with human subject protections. Standard 8.05, Dispensing With Informed Consent to Research, sets forth the conditions under which psychologists need not obtain informed consent. The conditions are research in education, work, or public settings when the research does not reasonably present a risk of distress or harm to the participants, and archival research and anonymous questionnaires where the research would not place participants at risk for civil or criminal liability or would not harm other interests of the participant. An exception allowing psychologists to dispense with informed consent also arises when the laws, regulations, or institutional policies (that are consistent with law) permit research without the necessity of obtaining informed consent. Standard 8.06, Offering Inducements for Research, prohibits

psychologists from offering excessive inducements for participation in research. Standard 8.07, Deception, addresses the ethical dilemma posed by research in which participants are deceived about some important aspect of the study. Although the use of deception is inconsistent with Principle C, Integrity, some of the most important findings in social psychology have been discovered through the use of deception. Standard 8.07 delineates the use of deception in several ways. First, the use of deception must be warranted by the study’s prospective value; second, the deception cannot involve physical pain or severe emotional distress; and, third, psychologists must explain the use of deception and provide participants the opportunity to withdraw their data. These delineations represent negotiations between the value of integrity and the value of advancing the science of psychology. Standard 8.08, Debriefing, says that psychologists provide a “prompt” opportunity for participants to obtain information about a study after they have participated. If values justify a delay in providing the information, or withholding the information, psychologists take steps to reduce the potential harm. Ethical Standard 8.09, Humane Care and Use of Animals in Research, governs psychologists’ use of nonhuman animals for research purposes. The standard requires psychologists to abide by relevant laws and professional standards in their use of such animals in research, and to ensure that individuals under their supervision are appropriately trained in the use of animals for research purposes. Standard 8.09, like Standard 8.07, Deception in Research, provides a balancing test: Animals may be subjected to pain or distress only when the study’s prospective value warrants doing so. The standard thus represents the resolution of an ethical dilemma by negotiating between two values that are in tension. Standards 8.10, Reporting Research Results; 8.11, Plagiarism; 8.12, Publication Credit; 8.13, Duplicate Publication of Data; 8.14, Sharing Research Data for Verification; and 8.15, Reviewers, are designed to protect the integrity of the research and publication process. Each of these standards addresses conduct that threatens the academic enterprise in some manner. Examining the reasons behind these rules illustrates potential harm not 65

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only to other psychologists but also to the public. Behavior inconsistent with these standards undermines the value to the public of psychologists’ research and writings. Section 9, Assessment, presents a wide-ranging set of standards related to psychological testing and assessment. The standards address psychologists’ obligations both to the individuals whom they are assessing as well as to the field of psychology by emphasizing the scientific bases for psychologists’ work. In this way, Section 9 highlights both the interpersonal nature of assessment and the scientific foundation for what psychologists do. A central concept provides the basis for Standard 9.01, Bases for Assessments: Psychologists base their opinions and recommendations on “information and techniques sufficient to substantiate their findings.” A corollary to this concept is that psychologists opine about the psychological characteristics of an individual only after having examined the individual in person, or they appropriately limit their statements. This standard has become highly relevant with the media’s dramatically increased interest in the psychological characteristics of individuals in the public domain. Standard 9.02, Use of Assessments, has several important concepts. These include that psychologists use assessment techniques and methods in a manner appropriate in light of the relevant research, that psychologists use instruments whose validity and reliability are appropriate for the population being assessed, and that psychologists conducting assessment are mindful of an evaluee’s language preference. The foundation of Standard 9.02 is the significant impact that psychological assessment may have on an individual’s life and the corresponding ethical responsibility for psychologists to ensure that their assessments consider factors that may affect the outcome. Standard 9.03, Informed Consent in Assessments, resonates with the other informed consent standards in the Ethics Code, such as Standard 3.10, Informed Consent, and 8.02, Informed Consent to Research. Standard 9.03 requires psychologists to obtain informed consent in assessment contexts, with several exceptions. The exceptions include when the assessment is mandated by law, when 66

informed consent may be assumed by virtue of the context, or when the testing is for the purpose of evaluating decision-making capacity. Standards 9.04, Release of Test Data, and 9.11, Maintaining Test Security, may be read as a pair. These standards delineate psychologists’ competing responsibilities to protect test security and simultaneously to respect autonomy by releasing test data pursuant to a client request. Taken together, the standards state that psychologists release test data pursuant to a client’s consent, but define test data in such a manner that psychological testing materials, such as test protocols and scoring manuals, are protected from disclosure. These standards have been the subject of considerable discussion since the 1992 Ethics Code was adopted. The discussion and debate around what an appropriate release standard should allow and require involves multiple parties, such as plaintiff and defense attorneys, courts, companies that develop psychological tests, and the individuals who are being assessed. Ethical Standard 9.05, Test Construction, emphasizes the scientific foundation for psychological tests. Standard 9.06, Interpreting Assessment Results, requires psychologists to consider factors such as language and culture that may affect the appropriate interpretation of test results. Standards 9.07, Assessment by Unqualified Persons, and 9.08, Obsolete Tests and Outdated Test Results, preclude test administration by individuals who have not had the proper training and ban the use of tests that are obsolete and are no longer appropriate for use. Standard 9.09, Test Scoring and Interpretation Services, places on psychologists the responsibility for the appropriate application of test scoring and interpretation services used by the psychologists or other professionals with whom the psychologists work. Standard 9.10, Explaining Assessment Results, requires psychologists to take reasonable steps to ensure that the individual assessed or a representative of the individual, for example, a parent or guardian, receives an explanation of assessment results unless some aspect of the assessment context precludes such an explanation and the individual has been so informed. Section 10, Therapy, consists of 10 standards governing the therapeutic relationship. These standards

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correspond to many other standards in the Ethics Code. Such resonance makes perfect sense because the Ethics Code is built on a single set of ethical principles that then are applied in various contexts. Standard 10.01, Informed Consent to Therapy, is part of a set of informed consent standards in the Ethics Code that includes Standards 3.10, Informed Consent; 8.02, Informed Consent to Research; and 9.03, Informed Consent in Assessments. Standard 10.01 requires psychologists to obtain informed consent to psychotherapy. When a trainee is providing the psychotherapy, Standard 10.01 indicates that the client is informed of the trainee’s status and given the name of the supervisor. Standards 10.02, Therapy Involving Couples or Families, and 10.03, Group Therapy, highlight the importance of informed consent and confidentiality when psychotherapy is offered in a group situation. These standards thus resonate with such standards as Standard 3.07, Third-Party Requests for Services, and 3.11, Psychological Services Delivered To or Through Organizations, by virtue of their focus on multiple clients or potential clients in the provision of services. Although none of the standards in this set of four has the term informed consent in the title, the standards nonetheless serve as a helpful guide for psychologists in shaping their informed consent process. Standard 10.04, Providing Therapy to Those Served by Others, is consistent with Standard 3.09, Cooperation With Other Professionals, by highlighting how relationships with other professionals may affect a mutual client. These standards illustrate how the Ethics Code focuses psychologists on sources of possible harm to clients that do not involve exploitation or incompetence in the direct provision of services. Given the increasing degree to which psychologists work in settings that involve multiple caregivers, Standards 10.04 and 3.09 will likely take an increasing role in psychologists’ ethical thinking. Standards 10.05, Sexual Intimacies With Current Therapy Clients/Patients; 10.06, Sexual Intimacies With Relatives or Significant Others of Current Therapy Clients/Patients; 10.07, Therapy With Former Sexual Partners; and 10.08, Sexual Intimacies With Former Therapy Clients/Patients,

focus psychologists on the ethical aspects of sexual involvements with current and former clients, former sexual partners, and individuals related to those whom psychologists are treating. These standards highlight that sexual involvements with a range of individuals in or near to the psychologist’s professional life are incompatible with a psychotherapeutic relationship. The standards also resonate with Standards 3.05, Multiple Relationships, and 3.06, Conflicts of Interest, because sexual intimacies risk placing the interests of the psychologist over those of the client. Standards 10.09, Interruption of Therapy, and the final standard in the Ethics Code, 10.10, Terminating Therapy, resonate with Standard 3.12, Interruption of Services. These standard focus psychologists on taking reasonable steps to ensure that clients’ needs are met when services are interrupted or end. Standard 10.10 gives three criteria for when it is appropriate to terminate therapy: The client no longer needs the service, is not likely to benefit for additional services, or will suffer from continued service. Standard 10.10 also allows psychologists to terminate therapy when threatened. The Ethics Code Task Force felt that it was important to allow psychologists to protect themselves from possible danger. The Ethics Code is a document whose four parts—Introduction and Applicability, Preamble, General Principles, and Ethical Standards—form an organic whole. The Ethics Code is built on a set of five principles with ethical standards that apply the principles across the range of psychologists’ activities. The Ethics Code is written flexibly to allow for the evolution of the science of psychology but has clear and focused standards that prohibit behavior psychologists have learned likely will lead to harm. Because the standards are written on the basis of the same principles, there is strong resonance between standards in different sections of the Code. This resonance highlights the unity of the field across the many diverse areas in which psychologists practice. Although a thorough examination of the entire Ethics Code would require a textbook in and of itself, this overview provides the substance and contours of the ethics of psychology. 67

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COMPARING CODES OF ETHICS: MULTIPLE RELATIONSHIPS Ethics codes of associations whose members provide health and mental health services address many of the same issues. Similarities in the issues addressed make sense because close relationships often exist among what mental health professionals of various disciples do. Codes of ethics also generally adopt a principlist approach, which tends to align the codes even further because both the principles under discussion in this chapter as well as their interpretation and application derive from and are placed in a Western, industrial context. The similarities among codes highlight their differences. Excerpts from four codes of ethics that address the issue of multiple relationships are discussed in the paragraphs that follow. Mental health professionals of all disciplines regardless of whether they work in urban, rural, or frontier communities must confront the challenges posed by multiple relationships. Questions regarding multiple relationships are consistently among the most frequent topics of phone calls to the APA Ethics Office. APA has a five-paragraph ethical standard on multiple relationships, two paragraphs of which are provided here. These paragraphs define what a multiple relationship is and then provide a test for determining which multiple relationships a psychologist should avoid. Standard 3.05, Multiple Relationships (a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person. A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s 68

objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. Three elements of these paragraphs highlight similarities and differences among different ethics codes regarding multiple relationships. First, the definition has several parts, each of which implies simultaneity: The relationships are concurrent (the numbered parts begin “at the same time,” “at the same time,” and “promises,” which involves a present action regarding a future behavior). Second, the rule gives distinct criteria for identifying problematic multiple relationships: It is reasonably likely that the relationship will impair the psychologist’s objectivity, competence, or effectiveness or that the relationship will lead to exploitation. Third, the “or” in the criteria indicates that not all multiple relationships are exploitative. Some problematic multiple relationships do not lead to exploitation but are rather problematic for reasons independent of exploitation. The NASW Code of Ethics (NASW, 2008) places their rule on dual relationships under the heading “Conflicts of Interest.” APA has Standard 3.06, Conflict of Interest, which follows its Standard 3.05, Multiple Relationships. APA Standard 3.06 uses nearly identical criteria as does Standard 3.05, so the NASW and APA codes are similar in this regard. The NASW Code of Ethics has three paragraphs, the last of which is as follows: 1.06 Conflicts of Interest (c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional,

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social, or business. Dual or multiple relationships can occur simultaneously or consecutively.) In this paragraph, the NASW Code of Ethics (2008) emphasizes the risk of exploitation as a reason to avoid multiple relationships, as does the APA Ethics Code. The NASW code then introduces the concept of “culturally sensitive boundaries.” This concept has enormous implications for defining problematic multiple relationships because the appropriateness of a multiple relationship may depend on culture. The NASW code brings culture directly into the analysis for social workers. Perhaps the feature that most distinguishes the NASW rule from that of APA is the final clause, which states that multiple relationships can occur “simultaneously or consecutively.” This clause removes the aspect of simultaneity found in APA’s Ethics Code and makes explicit that a relationship occurring after the professional relationship has ended—be it professional, social, or business—may constitute an ethically problematic multiple relationship. APA has only one standard (Standard 10.08, Sexual Intimacies with Former Clients/Patients) that explicitly asserts the Ethics Code’s jurisdiction over relationships that follow termination of the professional relationship. The APA Ethics Code also incorporates the concept of sequential relationships, for example, a friendship promised during therapy, but this prohibition is based on a promise that takes place concurrent with the professional relationship so the requirement of simultaneity is retained. The Feminist Therapy Institute’s Feminist Therapy Code of Ethics (Feminist Therapy Institute, 1999) is based on a feminist theoretical orientation. This code places the rule on multiple relationships in the context of the power differential between therapist and client. The code calls on feminist therapists to engage in a process of negotiating this power differential, as these excerpts from the rule demonstrate: II. Power Differentials A. A feminist therapist acknowledges the inherent power differentials between client and therapist and models effective use of personal, structural, or institutional power. In using the power differential to

the benefit of the client, she does not take control or power that rightfully belongs to her client. C. A feminist therapist negotiates and renegotiates formal and/or informal contacts with clients in an ongoing mutual process. As part of the decision-making process, she makes explicit the therapeutic issues involved. III. Overlapping Relationships A. A feminist therapist recognizes the complexity and conflicting priorities inherent in multiple or overlapping relationships. The therapist accepts responsibility for monitoring such relationships to prevent potential abuse of or harm to the client. The feminist code does not use the word exploitation, as do the APA and NASW codes, but the concept is clearly present. All three codes place responsibility on the mental health professional and not the client to abide by the rule. The feminist approach is different in nuance by placing the responsibility squarely on the psychotherapist yet also highlighting the mutuality inherent in the relationship. This difference in nuance, which can be described as a parallel rather than a top-down orientation, arises from a feminist theoretical orientation. The American Counseling Association’s Code of Ethics (American Counseling Association, 2005) introduces an idea not found in any of the other three codes: that some multiple relationships may benefit the client. A.5.c. Nonprofessional Interactions or Relationships (Other Than Sexual or Romantic Interactions or Relationships) Counselor–client nonprofessional relationships with clients, former clients, their romantic partners, or their family members should be avoided, except when the interaction is potentially beneficial to the client. (See A.5.d.) A.5.d. Potentially Beneficial Interactions 69

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When a counselor–client nonprofessional interaction with a client or former client may be potentially beneficial to the client or former client, the counselor must document in case records, prior to the interaction (when feasible), the rationale for such an interaction … Examples of potentially beneficial interactions include, but are not limited to, attending a formal ceremony (e.g., a wedding/commitment ceremony or graduation); purchasing a service or product provided by a client or former client (excepting unrestricted bartering); hospital visits to an ill family member; mutual membership in a professional association, organization, or community. The American Counseling Association ethics code reflects the wide range of roles that counselors take. The explicit recognition of benefit is an affirmation that at times it may be helpful for counselors to enter a multiple relationship in these roles and an acknowledgment that it also may be potentially harmful for the counselor to decline the multiple relationship. The concept of benefit sets the American Counseling Association’s code apart from the other three codes, which are generally disapproving, or at best neutral, regarding multiple relationships. This comparison of how four ethics codes address the issue of multiple relationships illustrates how the codes may be similar in substance but differ markedly in their nuance. The differences arise from various factors, such as the culture of the discipline and the theoretical orientation on which the code is based. Although a thorough comparison of ethics codes is well beyond the scope of this chapter, the analysis in this section can be applied to ethics codes more broadly in reviewing the ethical frameworks and rules the authors of the codes establish for their respective disciplines. THE RELATIONSHIP BETWEEN ETHICS AND LAW Psychology is practiced in a wide variety of settings. These include courts and correctional facilities, 70

education systems from nursery schools through universities, hospitals, corporations, and nonprofit organizations. A common denominator to all of these settings is that they operate within the context of a society. As a consequence, psychologists must be aware of both the policies that apply in their particular workplace as well as the laws of the society in which they live as citizens and practice as professionals. Of particular note is how society’s laws relate to the ethics of the profession. This section provides an overview of the relationship between ethics and law. This relationship is complex both because psychology is regulated as a profession and also because the interaction between psychology and law takes place in so many venues. Consider the wide range of roles and issues with which psychologists become involved in civil and criminal legal matters, from jury consulting to determining whether an individual has the capacity to write a will to assessing whether a criminal defendant had the requisite mental state at the time he committed a crime. These are but a tiny fraction of the questions that psychologists who work in and with courts assist the legal system to answer each day. Courts, in turn, represent only one of the many venues in which psychologists whose work touches on the law serve. Although a review of all the ways in which psychologists interact with the law would require a multivolume text, it is important for psychologists to be aware of why every psychologist should be familiar with basic elements of how the law and the ethics of the profession interact. (More information on the regulation of professional psychology can be found in Chapter 18 of this volume.) Several reasons support why even psychologists who do not work in a role or setting that has a direct relationship to the law or legal issues should be familiar with their jurisdiction’s law governing psychologists and the practice of psychology. First, many jurisdictions have statutes and regulations that govern both the title psychologist and the practice of psychology. Calling oneself a psychologist or engaging in the practice of psychology therefore has legal significance and legal implications. Second, many jurisdictions adopt or follow APA’s Ethics Code as the ethical standard of practice. Thus, familiarity with the APA Ethics Code is necessary to

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abide by the standard of practice established in the jurisdiction. Third, the Ethics Code uses the word law or some variant more than 20 times. Therefore, at times, a psychologist must be familiar with the jurisdiction’s law to assess his or her responsibilities under the Ethics Code. For these three reasons, every psychologist, regardless of how directly involved in legal matters, should have a basic understanding of how the jurisdiction regulates psychology to abide by the ethical standards of the profession. A sample of laws from several jurisdictions illustrates the close relationship between ethics and law and highlights the importance of psychologists being familiar with the laws in their jurisdiction. The laws of North Dakota give an example of a title statute and a practice statute, that is, statutes that govern who may call themselves a psychologist and who may engage in the work psychologists do. The practice statute (North Dakota Code, 2010) states that “a person may not engage in the practice of psychology unless that person is licensed as a psychologist or is registered as a psychology resident under this chapter.” The statute also states that “a person may not use the title ‘psychologist’ or similar title unless that person is licensed as a psychologist.” Some jurisdictions have both a title and a practice act, whereas others have one or the other. In nearly all jurisdictions, however, either the practice of psychology or the title psychologist is regulated by law. If an individual violates the jurisdiction’s law, either by inappropriately referring to him- or herself as a psychologist or by engaging in an activity that the individual is not licensed to do, the jurisdiction may take legal action in response. Over and above a jurisdiction’s recognition of the title psychologist and of the practice of psychology, another reason that psychologists should be familiar with law is that many jurisdictions adopt or follow APA’s Ethics Code as the ethical standard of practice in the jurisdiction. A recent review by the APA Ethics Office indicated that approximately 34 jurisdictions have some mention of APA’s Ethics Code in their statutes or regulations. Massachusetts is an example of a jurisdiction that explicitly adopts the APA Ethics Code as the standard of ethical practice.

Other jurisdictions, such as Maryland, do not adopt the APA Ethics Code but rather use the Ethics Code as a guide in writing the jurisdiction’s own code of ethics. Still other jurisdictions, such as New York, have adopted a code of ethics that does not make any explicit mention of APA’s Ethics Code. Nonetheless, a review of codes that do not mention APA shows that they have considerable overlap with APA’s Ethics Code. Additionally, psychologists should be familiar with their jurisdiction’s laws governing psychology because the Ethics Code incorporates the law into the ethical standards. Two examples of how the Ethics Code links ethics and law are Standards 4.02, Discussing the Limits of Confidentiality, and 6.01, Documentation of Professional and Scientific Work and Maintenance of Records. Each of these standards illustrates how familiarity with the law may be necessary for a psychologist to understand what the Ethics Code requires. Standard 4.02 requires psychologists to discuss the limits of confidentiality with their clients at the beginning of the relationship absent a compelling reason why the discussion should not take place at that time. The limits of confidentiality are jurisdiction specific and require that the psychologist understand what the law allows and how to apply the Ethics Code properly. Virtually every jurisdiction has a legal mandate to disclose child abuse, and most jurisdictions mandate disclosure of elder abuse and abuse of persons with disabilities as well. Some jurisdictions require disclosure of health professionals’ sexual involvements with clients when discovered by another licensed health professional, and other jurisdictions mandate disclosure when a psychologist becomes aware that another licensed psychologist has violated a law of the jurisdiction regarding the practice of psychology. Duty to protect and warn laws vary widely, with some jurisdictions having specific duties and other jurisdictions having no explicit duty to protect or warn a third party at all. Although jurisdictions have considerable common ground regarding the limits of confidentiality, they also have significant variation. As a consequence, psychologists need to be familiar with their jurisdiction’s laws to know how to apply Ethical Standard 4.02 properly. 71

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Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, sets forth a series of reasons why psychologists keep records, which includes the requirement to “ensure compliance with law.” A variety of state and federal laws govern how psychologists document their work. Certain jurisdictions state what psychologists must keep in their records with a high degree of specificity. In other jurisdictions, psychologists may be allowed not to keep records of a client in psychotherapy if the client makes such a request. Jurisdictions likewise vary in the length of time they require psychologists to keep records. A psychologist must be familiar with the record-keeping laws in the jurisdiction to comply with Standard 6.01. In sum, to understand what the Ethics Code requires, psychologists need to know their jurisdiction’s laws. Each of these three reasons—the regulation of psychology, the recognition of the APA Ethics Code by a majority of jurisdictions in North America, and the incorporation of the law into the ethical standards—illustrates the close relationship between ethics and law for licensed psychologists. Many psychologists who conduct research and publish are not licensed. These psychologists may work in colleges, universities, and sometimes in high schools. The relationship between ethics and law remains important for these psychologists as well, as shown by Standard 8.01, Institutional Approval: “When institutional approval is required, psychologists provide accurate information about their research proposals and obtain approval prior to conducting the research. They conduct the research in accordance with the approved research protocol.” For research that involves certain types of funding, approval by an institutional review board is required. Such research will be governed by an extensive set of federal regulations that are based on ethical principles closely related to the principles on which the 2010 Ethics Code is based. The U.S. Department of Health and Human Services has a website devoted to the Office of Human Subject Protections (http://www.hhs.gov/ohrp/). This website provides information about ethics codes and federal regulations that govern research with human participants. Standard 8.01 represents 72

a direct link with the Office of Human Subject Protections by stating that psychologists obtain institutional review board review and approval when required to do so. Thus, the relationship between ethics and law is central to the work of unlicensed psychologists who conduct research with human participants that requires approval under federal regulations. Even psychologists whose research does not require institutional review board approval often seek such approval nonetheless, given that approval by a review board will lessen potential exposure to legal and ethical liability. The relationship between ethics and law is also relevant to psychologists who use nonhuman animals in their research. Standard 8.09, Humane Care and Use of Animals in Research, refers to “compliance with current federal, state, and local laws and regulations.” The Office of Laboratory Animal Welfare in the Department of Health and Human Services has a website devoted to the use of animals in research (http://grants2.nih.gov/grants/olaw/olaw. htm). The Office of Laboratory Animal Welfare website, like the Office of Human Research Protections website, provides extensive resources that include relevant laws. Standards 8.01 and 8.09 highlight the close relationship between ethics and law for unlicensed psychologists conducting research on human and nonhuman animals. Psychologists engage in activities that are relevant to virtually every aspect of the society in which they live. Society, in turn, has an interest in ensuring that psychologists do their work in an ethical and competent manner. To abide by what society requires, it is important for psychologists to be informed about the relationship between the ethics of their professional and the laws that govern their work. CONCLUDING THOUGHTS AND FUTURE DIRECTIONS The purpose of this chapter is to give the reader an overview of ethics in the field of psychology. This overview provides an examination of ethics and ethical decision making; the structure and function of the APA ethics program; the different parts of the APA Ethics Code, including a detailed discussion of

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the Ethics Code’s five general principles and 89 ethical standards; the manner in which different ethics codes address the issue of multiple relationships; and the relationship between ethics and law. Although not intended to be an exhaustive discussion of these topics, the chapter gives the reader a good sense of the current state of ethics in the profession. Ethics is a developmental process that evolves over time. As a consequence, a chapter on ethics in the profession of psychology is by definition a snapshot of the state of the field at a given time. This chapter written 10 years from now will not be the same. APA likely will have adopted the next version of its Ethics Code and new challenges and issues requiring ethical analysis will have emerged. Writings on professional ethics are limited by their historical context. This statement does not mean that psychology—or any profession—abandons its deeply held beliefs or principles. To the contrary, bedrock principles, such as do no harm, justice, and respect, have endured for centuries. Being limited by a historical context implies that one must locate the writings in time and place to appreciate their application fully. Four issues currently emerging in the field of psychology illustrate this point. These issues are the increasing use of technology, psychologists’ responding to complex international humanitarian disasters, coaching, and the involvement of psychologists in national security–related activities. Each of these areas of practice will require thorough ethical analysis as it develops. (More information on redundant psychologists in security-related institutions can be found in Chapter 5 of this volume; more information on coaching can be found in Volume 2, Chapter 9, this handbook; and more information on telehealth can be found in Volume 2, Chapter 10, this handbook.) The use of telehealth by psychologists has increased substantially over the past 15 years and likely will continue to do so. Telehealth raises a myriad of legal and ethical questions. The dramatic emergence of the technology, however, has not been matched by developments in law and ethics. As a consequence, the legal and ethical infrastructure for the technology has yet to be developed; the rapid rise of this technology has outpaced developments

in laws and ethics. Questions regarding how best to protect confidentiality, what competence is necessary to provide various services over the Internet, and how the reach of the electronic transmissions across jurisdiction lines relates to the jurisdictional oversight of psychologists’ activities are all issues that are yet to be settled and that the current version of the Ethics Code does not address. Psychologists’ responding to complex international humanitarian disasters is another issue that merits additional ethical analysis. For many years, psychologists have been responding to humanitarian disasters locally to provide enormous help and relief to victims. In recent years, psychologists increasingly have traveled to international disaster sites. Providing assistance to victims and conducting research far removed from one’s own culture and sociopolitical context raises ethical issues regarding confidentiality, competence, and even exploitation that have yet to be addressed and fully considered by organized psychology. Many psychologists have begun to engage in coaching in addition to other activities. Coaching shares aspects of psychotherapy yet is different in important respects. The differences between coaching and psychotherapy raise questions regarding how the Ethics Code applies to this relatively new area of practice. How informed consent, confidentiality, and the section of the Ethics Code on therapy apply to coaching are questions that merit further ethical consideration, which they undoubtedly will receive in the coming years. The involvement of psychologists in national security–related activities is a fourth example of an emerging area of practice whose ethical aspects have not been fully considered. APA has addressed the involvement of psychologists in military interrogations in a series of policy statements and Council of Representative resolutions that provide a foundation for additional ethical analyses. As this area of practice continues to develop, the ethical issues will further crystallize for examination in the next Ethics Code revision process. Psychologists’ national security–related work will be reviewed in the context of ethical standards on informed consent, confidentiality, and assessment to determine how these standards apply. 73

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Even an activity as familiar to psychology as supervision likely will receive considerable attention by the next Ethics Code revision task force. In the past several years, supervision has received an increasing amount of attention. The Canadian Psychological Association has written a set of ethical guidelines for supervision (Canadian Psychological Association, 2009), and texts have been written on supervision as a unique competence, a relatively new concept for psychology. Supervision serves as an excellent example of how the profession’s work in ethics is never done.

References American Counseling Association. (2005). ACA code of ethics. Retrieved from http://www.cacounseling.org/ codeofethics.pdf

Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx American Psychological Association, Ethics Committee. (2002). Rules and procedures. American Psychologist, 57, 626–645. Retrieved from http://www.apa.org/ ethics/code/committee.aspx Beauchamp, T. L., & Childress, J. F. (2009). Principles of biomedical ethics (6th ed.). Oxford, England: Oxford University Press. Canadian Psychological Association. (2000). Canadian code of ethics for psychologists. Retrieved from http://www.cpa.ca/cpasite/userfiles/Documents/ Canadian%20Code%20of%20Ethics%20for%20 Psycho.pdf Canadian Psychological Association. (2009). Ethical guidelines for supervision in psychology: Teaching, research, practice, and administration. Retrieved from http://www.cpa.ca/cpasite/userfiles/Documents/ COESupGuideRevApproved7Feb09revisedfinal.pdf

American Psychological Association. (1953). Ethical standards of psychologists. Washington, DC: Author.

Feminist Therapy Institute. (1999). Feminist therapy code of ethics. Retrieved from http://www.feminist-therapyinstitute.org/ethics.htm

American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597–1611. doi:10.1037/0003-066X.47.12.1597

National Association of Social Workers. (2008). Code of ethics. Retrieved from http://www.socialworkers.org/ pubs/code/default.asp

American Psychological Association. (2008). 2008 petition resolution. Retrieved from http://www.apa.org/ news/press/statements/work-settings.aspx American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002,

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North Dakota Code, Statutes § 43-32-17 (2010). Retrieved from http://www.legis.nd.gov/cencode/ t43c32.pdf White v. the North Carolina State Board of Examiners of Practicing Psychologists, 388 S. E. 2nd 148 (N.C. App. 1990).

CHAPTER 3

SOCIAL JUSTICE AND CIVIC VIRTUE Melba Vasquez

We must scrupulously guard the civil rights and civil liberties of all our citizens, whatever their background. We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization. (Franklin Delano Roosevelt, 1940) I see one-third of a nation ill-housed, ill-clad, and ill-nourished. The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. (Franklin Delano Roosevelt, 1937) What are the roles and responsibilities of citizens in a society with regard to justice and injustice? The values reflected in the epigraphs for this chapter, from one of the most revered former presidents of the United States, reflect a sense of the responsibility of government to provide civil rights, access to basic needs, and opportunity to all citizens. But what are our responsibilities, as citizens, to one another? Most theorists believe that claims for justice and protests against injustice are universal, ever present, and ubiquitous (Montada, 2003). Humans seem to have a justice instinct, that is, a belief in a just world (Lerner, 1998). The literature describes a variety of motives for a belief in justice or the practice of just behavior, but agreement is lacking about the source of those motives. For example, some assume that the justice motive would include one’s self-interest. Such people would prefer equity in treatment and access to resources as a strategic choice to maximize their individual gains and minimize their individual risks within social exchanges on either the short or the long term. Consciously or unconsciously, they would view espousing or even practicing social justice and just conduct as the best strategy for controlling social outcomes (Hardin, 1996; Thibault & Walker, 1975; Tyler, Boeckman, Smith, & Huo, 1997).

Others have suggested that justice is an end in itself (Montada, 2003). It is a moral imperative in social life, not a means to achieve personal aims. The related equity principle implies that inequity is unjust and must be rectified, that is, the disadvantaged are entitled to claim equity, and those observing inequity are obligated to claim equity for the disadvantaged. Regardless of the motive for justice, the meaning of justice, in its broadest sense, is fairness; it implies behaving toward others in an impartial manner, treating others equally, and dealing with others as one would like to be dealt with oneself. Issues of justice arise because of conflicts of interest over limited goods and services and because human benevolence is limited, as well as differing in scope from one human to another. Hence, of necessity, as human society evolved, fairness and justice evolved into guiding moral principles. The moral principle of justice permeates numerous aspects of our society. The judicial system, for example, depends on the moral principle of justice when it strives to ensure that due process occurs— that is, that it clearly spells out procedure for both sides to be heard during a judicial proceeding and that a process for appeals is available.

DOI: 10.1037/13271-003 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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There would seem to be widespread agreement on the wisdom of applying the principle of justice to an aspect of civic life, such as the judicial system, when it is used to ensure balance in the application of procedural functions. But even this seeming unanimity can be illusory as has been made clear by debates in state legislatures and public squares around the country addressing the right of indigent clients to legal representation. One of the great object lessons in all consideration of justice and individual and collective responsibility, therefore, is the folly of thinking one can know what is in any heart but one’s own. SOCIAL JUSTICE AND CIVIC VIRTUE IN PSYCHOLOGY Several definitions of social justice, and various applications of each, abound in the discipline of psychology. One application is the advocacy for the client–patient that takes place within individual psychotherapy settings (Aldarondo, 2007; Burnes & Singh, 2010). Helping clients–patients to develop empowerment, that is, to act on their own behalf when faced with oppression, is an example of a mental health social justice intervention in the psychotherapy process (Burnes & Singh, 2010). Another application is from a collectivist perspective, that is, interventions that are related to advocacy for communities. The term social justice implies that people come together to work for the common good by transforming the social organizations and processes that contribute to power inequalities, oppression, and marginalization (Caldwell & Vera, 2010; Prilleltensky & Prilleltensky, 2003; Vera & Speight, 2003). Social justice also is defined as the full and equal participation of all groups in a society, mutually shaped to meet their needs, where resources are equitably distributed, and all members are physically and psychologically safe (Bell, 1997). In this chapter, the application of social justice will be on civic, community, and social systems. Although the concern for justice for self and others seems to be an anthropolitical universal (Montada, 2003; van Zomeren & Iyer, 2009), what is not universal is what is considered to be just or unjust. Additionally, consensus is not unanimous as to what 76

roles organizations, such as the American Psychological Association (APA), should take on various issues of concern, including oppression of particular groups on the basis of sexual orientation, disabilities, racial–ethnic identity, age, and religion; environmental and institutional racism; health, mental health, and education disparities; psychologists’ involvement in interrogations of detainees at illegal sites; examining the mental health factors associated with abortion; and support of gay marriage.

APA’s Commitment to Social Justice and Civic Virtue Are some professions more apt to promote justice than others? All mental health professions have proclaimed a commitment to decrease human suffering and to promote human values of equality and justice (Aldarondo, 2007). Perhaps because of the recognition that social realities are important determinants of distress that must be addressed as part of our efforts to promote the wellness of those we serve, the importance of social justice has been present in varying degrees in the development of social work, psychoanalysis, counseling professions, psychiatry, and in psychology, especially in community psychology, counseling psychology, and feminist and multicultural psychology (Aldarondo, 2007; Burnes & Singh, 2010; Caldwell & Vera, 2010). What are the roles and responsibilities of psychologists in making contributions to the community of psychologists and to society in general? What is the role of social justice in the identity of psychology as a discipline? APA, the largest association representing psychologists worldwide; some subgroups in psychology; and various individual psychologists have articulated a commitment to applying psychological knowledge to various problems in society. Despite the controversial nature of some social justice policies and actions, APA often has demonstrated a commitment to social justice, especially in the most recent decades. The APA Bylaw 1.1 described its organizational purpose: “The objects of the American Psychological Association shall be to advance psychology as a science, a profession, and as a means of promoting health, education and human welfare” (APA, 2002). The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010a) includes

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the General Principle D, Justice. Importantly, the incorporation of justice as one of the five major General Principles in its Ethics Code reflects the values inherent in the profession. Justice and fairness are related concepts that are the basis for the aspiration that psychologist provide some services for little or no financial reimbursement. It is also the foundation for the requirement in several of the enforceable standards that psychologists be concerned with equal treatment for all individuals, for example, Standard 2.01b, Boundaries of Competence, for those whose identity factors include age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, or socioeconomic status; 3.01, Unfair Discrimination; and 9.02c, Uses of Assessment (appropriate to an individual’s language preference). The General Principle D, Justice Psychologists recognize that fairness and justice entitle all persons to access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists. Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices. (APA, 2010a, General Principles, para. 5) Although the General Principles are not themselves enforceable rules, psychologists are encouraged to consider them in arriving at an ethical course of action. In addition, the 89 enforceable standards in the Ethics Code are derived from these five General Principles. The first-ever strategic plan conducted by the governance of the APA was finalized in 2010. The process resulted in the development of a mission statement, the creation of a vision statement, and the identification of core values. The mission of APA is “to advance the creation, communication and application of psychological knowledge to benefit society and improve people’s lives” (APA, 2010c). The vision statement of the APA is that it “aspires to excel as a valuable, effective and influential organization

advancing psychology as a science” (APA, 2010e). Seven aspects of the vision are described in the APA’s vision statement, and the last three are particularly relevant to social justice and civic virtue, including that the APA serves as ■

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the leading advocate for psychological knowledge and practice informing policy makers and the public to improve public policy and daily living; a principal leader and global partner promoting psychological knowledge and methods to facilitate the resolution of personal, societal, and global challenges in diverse, multicultural, and international contexts; an effective champion of the application of psychology to promote human rights, health, well being, and dignity. (APA, 2010e).

The APA core values include (a) continual pursuit of excellence; (b) knowledge and application based on methods of science; (c) outstanding service to its members and to society; (d) social justice, diversity, and inclusion (emphasis added); and (e) ethical action in all that we do. The last three values are most immediately and apparently congruent with a commitment to social justice and civic virtue, but generally, neither the pursuit of excellence nor the methods of science would stand social justice or civic virtue in poor stead. A resurgence of interest in the study of social justice efforts with social psychology and sociology is perceived to have increased in the last 10 years (van Zomeren & Iyer, 2009). Collective action is used to denote actions aimed to improve the status, power, or influence of an entire group, rather than that of one or a few individuals. Collective action is one of the core mechanisms of social change, and van Zomeren and Iyer (2009) perceive this mechanism to be of major importance to social scientists, practitioners, and policy makers as a means to alleviate social inequality and injustice such as that based on gender, race–ethnicity, and sexuality. PSYCHOLOGY AND CIVIC VIRTUE Given that the justice motive is considered universal, what accounts for the differences among individuals 77

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and groups in prioritizing the application of social justice? The term civic refers to the duties and responsibilities of people in relation to their town, city, or local area. In the context of this chapter, I refer to psychologists’ responsibilities to their community of psychologists as well as to society. Virtue refers to behavior reflecting high moral standards or a quality considered morally good or desirable. The term civic virtue is a specific term in social science literature that refers to the contributions of individuals to the welfare of their community in general. Social justice is a narrower term for promoting welfare of those historically marginalized. Thus, one can demonstrate civic virtue without necessarily promoting social justice; but one cannot promote social justice without demonstrating civic virtue. The distinction between civic virtue and social justice may never be completely clear-cut and often overlap. The terms public interest and general welfare are synonymous with civic virtue for purposes of this chapter. The distinction between civic virtue and personal interest may not always be clear-cut, either. For example, we can argue that promoting the welfare of persons with mental illnesses is an example of civic virtue, and for the public interest, correctly so. It also helps promote our professional selfinterest. Meara, Schmidt, and Day (1996) believed that assuming that the major responsibilities or primary goals of professionals are to be competent and serve the common good, then integrating the complementary perspectives of principle ethics (a set of prima facie obligations, such as the General Principles in the APA Ethics Code) with virtue ethics (focus on character traits and nonobligatory ideals that facilitate the development of ethical individuals) provides a coherent structure for enhancing the ethical competence of psychologists and the level of public trust in the character and actions of the profession and their members. Virtue ethics are rooted in the narratives and aspirations of specific communities, and they can be particularly helpful to professionals in assessing appropriate ethical conduct in diverse settings and interactions. Civic virtue is not necessarily derived from virtue ethics, although it could be. Motivation for civic virtue may come from someone 78

guided by a variety of ethical orientations, for example, principle-based ethics, deontological ethics, feminist or multicultural ethics, or others. Meara et al. (1996) specifically described how the collective ethical behavior of individual psychologists and the evaluation, organization, and integration of ethical ideals ultimately define the character of the profession. “Positive ethics” (Handelsman, Knapp, & Gottlieb, 2009) is a notion that indicates that the role of ethics education should be more than just following rules. Positive ethics also should anchor professional decisions on an ethical foundation and should ensure that psychologists live out these values within the context of their professional lives. Virtuous agents possess five characteristics. They (a) are motivated to do what is right and have developed traits or dispositions or motivations to act in accordance with high ethical standards or ideals; (b) have the capacity to discern the ethically relevant features of a given situation; (c) possess compassion, which includes a regard for the welfare of others, sensitivity to and sympathy for their sufferings or misfortune, and engage in actions to reduce or alleviate their pain; (d) possess self awareness and capacity for self-observation, which facilitates a sense of community; and (e) are interdependent with their community or communities and comprehend the communities’ ideals, expectations, mores, and sensibilities (Meara et al., 1996). These characteristics are related to a commitment to social justice. As a group, psychologists who share these characteristics define a profession committed to helping others. Meara et al. (1996) described how Carolyn Payton (1994), in an analysis of the 1992 APA Ethics Code, described concern about her perception of a weakening of the profession’s commitment to the dignity and worth of others and to the protection of human rights. Meara et al. believed that virtue ethics applications had potential to mediate that trend (Vasquez, 1996). Psychology as a discipline and APA in particular have incorporated a commitment to justice. Although not all psychologists possess the characteristics that lead to a social justice orientation, the values of social justice in the profession have been incorporated into the fabric of the discipline. The following

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history describes, in part, the nature of social justice actions of the discipline of psychology and of the APA in particular, including some of the controversies among psychologists about the feasibility of such actions. The forces and events that have led to APA’s current values in regard to human welfare will be described. For example, a critical development has been the referencing of psychological science and knowledge to support public interest policies and advocacy initiatives. Controversies continue about whether APA should take stands when the research does not fully support these positions. HISTORY OF APA’S INVOLVEMENT IN SOCIAL JUSTICE Former APA President M. Brewster Smith noted that the APA was a firmly academic–scientific organization not appreciably involved in social issues until its reorganization after World War II. During the Great Depression, for example, APA remained a “detached academic scientific organization” with little involvement with the social crises of the time, despite then APA President A. J. Poffenberger’s 1936 address in which he deplored the lack of representation of psychologists in the new agencies that President Franklin Roosevelt had set up to combat unemployment and encourage economic recovery (Smith, 1990). Issues of academic freedom came before APA as American universities confronted the rise of McCarthyism, and APA established the Committee of the Association on Academic Freedom and Civil Liberties in 1949. It later reorganized as the Committee on Academic Freedom and Conditions of Employment (Smith, 1990); although this committee seldom was able to give real help to psychologists at risk, it did try. Smith (1990) also described how APA attempted to be involved in racial justice. In 1950, the Council of Representatives established the policy that APA would hold meetings only in education institutions, hotels, or other establishments in which there was no discrimination on the basis of race or religion. Discrimination in hotels in 1952 in Washington prompted the APA to draw up a resolution that commended hotels in which discrimination was not

practiced and reiterated APA’s commitment not to meet again in Washington until more progress was made toward equal treatment of minority groups, given that some establishments still did discriminate. In 1957, APA implemented that resolution when they met in New York City instead of Miami Beach, Florida, because of reports of discrimination, and the concern for members who would have to drive through the South. Gender equity became a priority in scheduling APA meetings when, in 1977, APA refused to meet in states that had not ratified the Equal Rights Amendment. APA has been consistently effective in getting convention hotels to make their facilities accessible for people with disabilities (Smith, 1990). APA was more informed about sexism and gender inequity as a result of the 1969 formation of the Association of Women in Psychology (APA, Committee on Women in Psychology [CWP], 2004), separate from the APA, whose members then stormed a meeting of the Council of Representatives in 1970 and presented an historic list of 52 resolutions that dealt with employment, education, child and health care facilities, psychological theories and practice, conventions, equity in decision making, and the general status of women. These resolutions ultimately led to the establishment of the CWP in 1973, which currently is housed in the Public Interest Directorate at APA. The Office of Women’s Programs and the rotating members of the CWP work to ensure that women achieve equality as members of the psychological community so that all human resources may be fully actualized. CWP has been at the forefront on a number of issues that affect women and psychology (APA, CWP, 2004). Earlier in the history of APA, specific individuals made towering contributions, such as that by Kenneth B. Clark, who played a central role in developing the psychological argument presented in the 1954 Supreme Court landmark Brown v. Board of Education school desegregation case. Clark was elected the first African American president of APA 17 years later, in 1971. One of his legacies was the establishment of the Board of Social and Ethical Responsibility in Psychology. This board, considered the social conscience of the APA, was later 79

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merged with the Board of Ethnic Minority Affairs to establish the major board of the Public Interest Directorate, the Board for the Advancement of Psychology in the Public Interest (BAPPI). Under the present consolidated governance structure eight committees report through BAPPI: the CWP; the Committee on Ethnic Minority Affairs; the Committee on Lesbian, Gay, Bisexual, and Transgender Concerns; the Committee on Disabilities in Psychology; the Committee on Aging; the Committee on Children, Youth, and Families; the Committee on Socioeconomic Status; and the Committee on Psychology and AIDS. These boards and committees, staffed by the Public Interest Office, are the primary forces in nurturing advocacy and calling for justice for particular marginalized groups in APA and in society. The establishment of divisions with specific interests in the psychology of women (Division 35); the psychological study of gay, lesbian, and bisexual issues (Division 44, which later revised its title to include transgender); and the psychological study of ethnic minority issues (Division 45) also promoted research, practice, and education agendas that addressed justice issues for particular marginalized groups. Each has also been instrumental in sponsoring and speaking for legislation on the floor of the APA Council of Representatives. How do decisions get made in the APA about what social justice issues to address? Former APA President Leona Tyler (1969) chaired an APA ad hoc committee on public affairs and authored a subsequent decision-making process for the APA to apply in deliberations about appropriate action on public policy. The system included three major components, including the following: ■

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a set of receptor mechanisms (e.g., methods for identifying key problem areas to attend to) for dealing with public affairs; a decision-making mechanism for processing relevant information and choosing the action to be taken; and a set of effector mechanisms to carry out the decisions. (Tyler, 1969, p. 1)

The decision-making mechanism defined further criteria, including the importance of the problem area, the amount of research-based information 80

available, the extent of value agreement on the issue among APA members, and the probability that the action will be effective. The ad hoc committee recognized that the weight to be given any criterion in a combination could not be expressed in quantitative terms. The criteria were identified to facilitate decisions, not to make them in a mechanical way. The criterion suggesting value agreement on an issue among APA members presents a challenge when making a determination. APA members reflect a wide diversity in terms of career paths, priorities, and interests. It would be impossible for APA members to attain unanimity about various social issues; thus, the importance of a research-based approach has been emphasized to minimize disruptive controversy in APA, although research may not always be available for issues of deep and urgent concern to APA members (Smith, 1990). Still, psychologists are continuously called on to prioritize and support the application of psychological science and knowledge to address social justice issues of the time. Education efforts and strategies to raise awareness of what psychology has to say about complex societal issues are the motivation for many to be involved in APA governance. Individuals see the organization as a potent way to have an impact on and influence public interest concerns, in addition to the individual methods to affect change made available through their training and skills. Smith (1990), for example, was a strong proponent of both scientists and practitioners working to advance the public interest, by developing and promoting psychological contributions toward coping with the catastrophic problems of our times. He indicated that public interest activities have been most successful when they also have advanced the individual and group interests of socially disadvantaged categories of membership; others would beg to differ. Many members of racial–ethnic minority groups responded to those who dissented from goals of advocacy for racial–minority initiatives and resigned or joined other groups, or both. Groups such as the Association of Black Psychologists, the National Latino/a Psychological Association, the Asian American Psychological Association, and the Society of Indian Psychologists continue to provide members with a venue in which they may be confident

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that their voices will be heard and their concerns supported. Smith (1990) concluded that the controversies about APA’s advocacy role never go away and are never settled. He identified two reasons for that: (a) the general feature of modern American culture of extreme individualism, in which the pursuit of self-interest is taken for granted and altruistic concerns are discounted cynically as naïve or selfdeceptive; and (b) the fact that we hold divergent views of what is right and proper, so that each of us defines the public interest according to our own perceptions. Smith took psychologists to task for giving precedence to individualism over community in the explicit values in terms of which Americans justify themselves. He cited various critics of psychology’s “unrecognized individualistic assumptions” and praised psychologists who moved past the individualistic orientation in psychology and placed more focus on the public interest. Psychologists have much to contribute in recreating a more humane and sustainable world (Smith, 1990). In 1978, Charles Kiesler, former APA chief executive officer, presented an address on psychology and public policy at the annual meeting of the APA. One of his foci was the need for scientifically based information on human behavior for public policy as well as for problems that psychology faced in relating to the analysis, formation, and reform of public policy. He noted that social problems had received considerable legislative attention since the early 1930s (the previous 45 years). He argued for the increased involvement of psychology and the behavioral sciences in the development and evaluation of social policy at the federal, state, and local levels. He believed that the field of psychology was at a critical decision point regarding what it would be in the future, including how useful it would be, and how much it would give back to the broader society. Although he identified problems in sharpening psychology’s utility in social policy, he believed that there were significant benefits, both for the discipline of psychology and for society. “Who must do the hard things?” asked Payton (1984) during her invited address in recognition of the 1983 APA Award for Public Service. She focused on the “who” of the question in response to the

1982 APA Board of Scientific Affairs conclusion that it was inappropriate for the APA, as a scientifically based organization, to take positions of social advocacy that were not based on the organization’s interest in the promotion of the science or the profession of psychology. Payton strongly believed that “to view psychology as a science devoid of social implications or responsibilities will not advance our profession but will rather lead to its demise” (Payton, 1984, p. 394). Payton had to remind her colleagues in 1984, and members must be reminded over and over, that the Tyler (1969) report reflected how the APA grappled with the question of the propriety of psychologists as a group advocating social change or taking part in political advocacy, and established a process for dealing with such matters. In fact, Payton argued, in quoting Tyler, that to avoid taking a stand, to do nothing, is taking action. That is, those psychologists who argue against APA’s getting involved in social issues really are suggesting that that the status quo be maintained. Payton insisted that APA could not remain a vital, dynamic organization by narrowing the confines of its participation in historical events. She pleaded that we “place our talents, expertise, and our energy in the service of our conscience as well as our discipline. We are being shortsighted to assume that by broadening our focus to include social problems we will thereby endanger the discipline” (Payton, 1984, p. 395). She believed that even in doing the impossible things, those who retain the capacity to care would come forward. Indeed, Tyler’s report began with the sentence, “Taking appropriate action on public policy issues is a task that APA cannot delegate to any one Board or committee” (p. 1) as she described the importance of APA acting effectively as an association. Patrick H. DeLeon (1986) has argued for years that the discipline of psychology, including science and practice, would benefit all areas of society by increasing societal contributions through organized psychology. Psychologists are probably more involved than ever before in the political process, but it is not an activity that comes naturally to psychologists, and psychologists generally have not been trained in their education programs as to the importance of this activity. 81

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Although some members believe that the APA advocates too much for social justice and social issues, others think that APA does not do enough. Some degree of tension may always exist between those perspectives. The tension, in particular, is generated about specific issues about which members disagree, that is, those issues that generate controversy. Ultimately, open political debate about divergent interpretations of the public interest, including what it is, and if and how to generate informed, reasonable, benevolent answers to problems is good for the APA. In the 21st century, APA is periodically asked to comment on issues of social justice and societal interest that may be the subject of media attention, pending legislation, or court proceedings. Collective action is action that typically is more effective than individual action in creating change, such as action leveraging the status, power, or influence of an entire group (van Zomeren & Iyer, 2009). The synergistic power of APA speaking as the voice of organized psychology or as a translator of relevant psychological science into the public sphere can represent collective action at its most compelling and effective. Dissenting voices continue to express concerns, and influence analysis whenever dilemmas confront the association about what actions to take. The following presents some examples and applications. APPLICATIONS OF SOCIAL JUSTICE AND CIVIC VIRTUE IN THE APA Gwendolyn Puryear Keita, executive director of the APA Public Interest Directorate, asked, What does our psychological knowledge, including our theory, scientific research and clinical experience say about the grand challenges that profoundly affect our daily lives, our society and our world? How do we convey the vital knowledge we have on these issues? (Keita, 2010) A variety of processes in the APA are available for members and leaders in governance to initiate attention to particular problems. Attention to issues may come from members, from boards and committees 82

of the APA, from the Board of Directors, and from the Council of Representatives. Sometimes requests about our positions on certain issues of critical importance are made by the media or by members of Congress at both the state and national levels. APA depends to some degree on the Tyler (1969) report as well as on the mission, vision, and goals of the APA strategic plan (APA, 2010c, 2010e). For example, the form used by members of the Council of Representatives to submit new business items (NBI) includes the following guidelines for council resolutions: These guidelines apply to all resolutions submitted to Council for consideration. The following information must be provided: (1) The purpose and rationale for the resolution stated clearly, and documenting its relevance to psychology or psychologists; (2) The issue’s importance to psychology or to society as a whole; (3) Representative scientific or empirical findings related to the resolution; (4) The likelihood of the resolution having a constructive impact on public opinion or policy. Resolutions approved by Council are understood to reflect what APA values or believes and, in most cases, does not commit APA to any action. If approval of the resolution requires that specific action be taken, the following information must also be provided: (5) Suggestions on how it should be implemented, if it is passed; (6) Breakdown of staff resources or association funds needed to implement the resolution. (APA Council of Representatives, 2010) In addition, the three goals and objectives adopted by the Council of Representatives also must be relevant to NBI. APA’s Chief Executive Officer Norm Anderson (2010) described the milestone reached in 2009: The Council of Representatives adopted the APA’s three specific goals for the next 3 to 5 years as part of the APA’s first-ever strategic plan: 1. Maximize organizational effectiveness, which will guide the service, membership, and financial

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stewardship activities of the association to make APA an even more effective organization. 2. Expand psychology’s role in advancing health, which will focus our resources on health care, where many believe psychology can make a significant contribution to improving the health and well-being of people and their communities; 3. Increase the recognition of psychology as a science, in order to increase the credibility and standing of psychology as a core field of science, which will expand the impact of the field for the benefit of society. (Anderson, 2010) All NBI are assigned to a lead APA board or committee whose focus is most relevant to the item, and many other boards and committees may review the item and provide input. The Council of Representatives has the final say in terms of amendments to the item, as well as final approval or disapproval. Officers of the APA then support the organization’s policies. APA also allows for membership-driven initiatives to be introduced for a vote to the membership. Article XX of the Bylaws of the APA allows that amendments may be proposed by a petition signed by 4% or more of the members of the association (APA, 2008, 32–33). For example, when some APA members were unsatisfied with the efforts that APA governance took in ensuring that military psychologists participated only in helpful interventions with regard to detainees, the setting in which that intervention was allowed became the issue in a membership petition resolution, which was successful (Pope & Vasquez, 2011). The products of APA’s various social justice initiatives are disseminated in various ways. Brochures, reports, resolutions, and related products are more easily available with the redesign of the APA website (http://www.apa.org), together with state-of-the-art search capacity (Habash, 2010). The website offers rich information about issues in psychology for the general public as well as ways for members to engage and access information about books, journals, videos, and other electronic resources. Our resolutions and policies allow us to advance APA’s priorities through advocacy on Capitol Hill, with the executive branch, and to collaborate with key organizations

and coalitions, outreach through the media, and involve of our members (Honaker, 2010). APA has long had vigorous amicus involvement in the court system. For example, in 2009, the Office of General Council (OGC), under the direction of Nathalie Gilfoyle (2010), coordinated the preparation and filing of an amicus curiae brief in the consolidated U.S. Supreme Court cases of Graham v. Florida (2010) and Sullivan v. Florida (2010) The issue in these cases was whether the fundamental principles enumerated by the U.S. Supreme Court in Roper v. Simmons (2005), declaring the death penalty unconstitutional for juveniles also should be applied to sentences of life without the possibility of parole for those who committed nonhomicide offenses as juveniles. Research was presented given juveniles’ diminished culpability and enhanced prospects for rehabilitation. The OGC also presented an accurate and balanced summary of the current state of scientific and professional knowledge concerning sexual orientation, parenting, and stigma and prejudice. The OGC has entered numerous briefs in various court cases in the past, in regard to the civil rights of the lesbian, gay, bisexual, and transgender (LGBT) community.

Social Justice Initiatives of APA Presidents Each APA president comes to the office with many ideas of what they hope to contribute. It is customary that presidential initiatives be completed by the end of the presidential year, and the budget is limited. Presidents-elect are encouraged to make their plans in light of APA’s mission and, more recently, in light of the strategic goals and objectives. Most recent APA presidents have at least one project that is related to some of the critical issues facing society. It is significant that each of the past 12 presidents prioritized at least one of the grand challenges of society. Carol D. Goodheart, 2010 APA president, established a Presidential Task Force on Caregiving, which was designed to assist psychologists in addressing the needs of family caregivers across the life span, especially for those who are helping aging parents or disabled children (Goodheart, 2010b). James H. Bray, 2009 APA president, on the basis of his 10-year work with people who are homeless, 83

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focused a task force on this area to recommend ways in which psychologists can use their training and expertise to work with homeless individuals and groups, create and evaluate programs, and influence policy to improve the mental health of homeless people of all ages (Bray, 2010). Alan E. Kazdin, 2008 APA president, identified critical social problems to which our research speaks as a major goal, including interpersonal violence in relationships, climate change and promoting a sustainable environment, prolonging vitality in aging, and delivering health services to a diverse population (Kazdin, 2009). Sharon Stephens Brehm, 2007 APA president, included a focus on how integrated health care can make a major contribution to providing effective, humane, and affordable health care for aging populations. She also appointed a task force that reviewed the current scientific research on therapeutic responses for those distressed by their sexual orientation, with the goal of developing recommendations for updating APA’s 1997 policy statement on this topic (Brehm, 2008). Gerald P. Koocher, 2006 APA president, included as one of his initiatives a conference on the psychological issues related to “Immigration and the Changing Face of America,” which was cosponsored by Divisions 45 (Society for the Psychological Study of Ethnic Minority Issues) and 35 (Society for the Psychology of Women); nearly a dozen other divisions also joined the project. He also appointed a Task Force on Diversity Education Resources (Koocher, 2007). Ronald F. Levant, 2005 APA president, appointed a task force entitled Enhancing Diversity in APA. Its mission was to recommend strategies to make APA a comfortable place for members of diverse groups. Levant’s initiative, Make Psychology a Household Word, included the goal to grapple with society’s most pressing problems, and in 2005, that included response to the tsunami disaster in Southeast Asia, to the Hurricanes Katrina and Rita disasters in the Gulf Coast, and to allegations that psychologists behaved unethically in interrogations conducted at the Abu Ghraib and Guantánamo detention centers, resulting in the Psychological Ethics and National Security task force report (Levant, 84

2006a). The report stirred a controversial issue addressed by the next five presidents, APA governance, and members of the association. Levant engaged in various other diversity initiatives, including an invitation to the presidents of the four ethnic minority psychological associations (the Asian American Psychological Association, the Association of Black Psychologists, the National Latina/o Psychological Association, and the Society of Indian Psychologists) to address the August 2005 meeting of the APA Council of Representatives (Levant, 2006b) and observe the Council of Representatives meeting. Diane F. Halpern, 2004 APA president, responded to her experiences teaching in Russia, Turkey, and several other countries, where she became aware of the lack of quality materials on prejudice internationally. She proposed an ad hoc committee to develop an overview chapter on prejudice reduction (Halpern, 2005). The product of her initiative, “Prejudice in Any Language—The Prejudice Translation Project,” was available in 11 languages at the time of this writing. This translation of psychologically sound materials designed to understand and reduce prejudice was made available on Scott Plous’s website (http://understandingprejudice. org). Halpern also appointed a task force on Public Policy, Work, and Families: The Report of the APA Presidential Initiative on Work and Families. The task force presented data that show that policies friendly to work–family integration benefit both employers and working families with fewer absences, reduced turnover, increased loyalty to one’s employer, fewer tardy days, and fewer stressrelated health problems. Her Task Force on Retiring Psychologists also prioritized taking the lead in understanding the psychological processes and in assisting our own members through the uncharted territory of aging. Robert J. Sternberg, 2003 APA president, reflected his belief that all psychologists can unify to serve a common good and, at the same time, respect and even cherish their differences with his main presidential theme of unity. His presidential talk at the 2003 APA convention focused on the importance of understanding intelligence in its cultural context (Sternberg, 2004a). He also promoted

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awareness of the psychology of hate. He was concerned that children are being taught to hate targeted groups and thus deny their humanity, and to internalize false histories of these groups to justify hate. Genocides, massacres, and terrorist incidents are the results. Wisdom, he believed, was one way to combat hate (Sternberg, 2004b). Because his presidency fell immediately after the terrorist attacks of September 11, 2001, Philip G. Zimbardo, 2002 APA president, was mobilized to be involved in a variety of ways in understanding the psychology of terrorism and developing means for treating victims of terrorist disasters as well as those who were first responders. Zimbardo promoted the expansion of diversity among APA’s membership and leadership, including for women, minorities, people with disabilities, people of all sexual orientations, and youth. He was a proponent for psychologists in the United States to bring back new knowledge being generated by those in other nations with different cultural wisdoms (Zimbardo, 2003). Norine G. Johnson, 2001 APA president, whose major theme was building bridges, promoted the greater participation of ethnic minority psychologists in the APA leadership, in psychology education and training programs, and in research. She promoted cultural competency through APAP education and training institutions, and support of public advocacy for these efforts. She also addressed various activities in response to the terrorism and trauma associated with September 11, 2001 (Johnson, 2002). Patrick H. DeLeon, 2000 APA president, was one of the first APA presidents to have extensive public policy experience. As such, he was an advocate for psychology becoming as diverse as society, and supported various strategies to encourage a variety of students into the psychology pipeline. He also promoted activities to encourage more women into science and information technology (DeLeon, 2001). Richard M. Suinn, 1999 APA president, was APA’s first Asian American president and only the third ethnic minority to serve as president of the APA. A central goal for Suinn was to make APA a place of welcome and empowerment for all members by increasing their access and input to the

association. He prioritized visits to universities that had programs with strong ethnic minority student representation, and he founded the APA Suinn Minority Achievement Award, which goes to universities have done an outstanding job of recruiting ethnic minority students and preparing them for the discipline. He collaborated with the APA Practice Directorate and others to develop a Warning Signs campaign after the tragic Columbine high school shooting in his state of Colorado. He also had several initiatives related to community survivors of cancer (Suinn, 2000). He cosponsored, with leaders of several divisions, the first National Multicultural Conference and Summit (Sue, Bingham, PorcheBurke, & Vasquez, 1999), which has met every 2 years since. Most presidents of the recent past have prioritized initiatives that address psychological knowledge of critical, grand challenges and issues facing society. The shifting demographics of the APA (including more women) and more psychologists who practice psychology (APA, 1995) have resulted in a more inclusive and representative governance, whose priorities, while highly varied, include those related to the public interest, social responsibility, and social justice. As the APA president-elect at the time of this writing, I will serve as the first Latina president in 2011. My presidential initiatives relevant to social justice include immigration, reducing and preventing discrimination and enhancing diversity, and addressing education disparities. Through the first initiative, the APA Presidential Task Force on Immigration will develop an evidence-based report that addresses the psychological factors related to the experience of immigration, with particular attention to the mental and behavioral health needs of immigrants across the life span and the effects of acculturation, prejudice and discrimination, and immigration policy on individuals, families, and society. The second initiative seeks to reduce and prevent discrimination against and enhance benefits of inclusion of people whose social identities are marginalized in society. One of the grand challenges in society involves the deleterious effects of bias, prejudice, stereotypes, and discrimination on both 85

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victims and perpetrators. The mission of this task force is to identify and promote interventions to counteract and prevent those destructive processes. In doing so, we ultimately wish to promote inclusion, respect, acceptance, and appreciation of diversity. When the potential, capacity, and talent of all members of society are optimally developed, this benefits all of society. The third initiative will include the development of strategies from psychological science to reduce education disparities. What does psychology have to say and offer about addressing the impact of education disparities, especially on poor and racial–ethnic minority students? What are the sources of the education gaps? Low education attainment of any group in this country results in negative consequences for the nation’s future and its prosperity. Having a more educated racially diverse society is beneficial for all communities.

Social Justice Initiatives of Divisions; APA Directorates; and State, Provincial, and Territorial Associations For more than a decade, several APA divisions have been organized to form Divisions for Social Justice (DSJ). At the First APA Multicultural Summit and Conference in January 1999 at Newport Beach, California, the presidents of the eight APA divisions met to establish the APA Divisions for Social Justice, based on the belief that they shared a common mission in the area of social justice. The meeting was called by Division 45 President Joseph Trimble, and attended by the presidents of Divisions 9, 17, 27, 35, 43, 44, and 48. After some discussion, those attending decided that they all shared a common mission in the area of social justice. The group initially was named the Committee of Eight, and the members agreed to work together to pursue social justice issues both within APA governance (e.g., working together to appoint social justice–oriented individuals to APA committees; working with the Public Interest Directorate) and in terms of ongoing social justice related research, action, and public policy. The group later changed its name to the DSJ and expanded the number of divisions, which at the time of this writing includes 13 divisions: 9, 17, 27, 29, 32, 35, 39, 43, 44, 45, 48, 51, and 56. DSJ has primarily 86

focused its activities to date on promoting the appointment of social justice–oriented individuals to APA Committees (through sharing nominations); supporting APA’s Public Interest Directorate (e.g., working with the Public Interest Coalition of Council); and compiling and distributing a list of social justice–oriented symposia sponsored by DJS divisions at each year’s APA convention. Each year three or four divisions donate one of their hours to the common DSJ cause, so that about two special symposia are scheduled on a selected social justice topic each year. Structurally, the executive committees of each participating division appoints a representative for a 2- to 3-year term on DSJ, so that each participating division has an official representative. The chair (or cochairs) of DSJ serve a 1-year term, with the role of chair to be rotated among participating divisions. Meetings are held every year at APA, and every other January at the Multicultural Summit. Many individual APA divisions are poised to develop and promote social justice initiatives. The initiatives are far too numerous to include here, but examples include one from the Society of Counseling Psychology. William D. Parham, in his role as 2007– 2008 president of APA Division 17, Society of Counseling Psychology, invited its members to address the urgent need for strong and sustained advocacy for social change and social justice (Parham, 2008). He cited complex challenges that increasingly define communities across dimensions of culture, race, ethnicity, social economic status, religious affiliation, and other parameters of diversity, such as with the aftermath of Hurricanes Katrina and Rita. He left a legacy with his Stepping to the Plate action project, which was informed by a “more of thee and less of me” philosophy. The initial project, coordinated by Michael Mobley and Rebecca L. Toporek, provided interventions tailored to the existing needs of disenfranchised communities. The inaugural outreach effort served the New Orleans community and took place right before the APA annual convention held in New Orleans. The division adopted, in perpetuity, a yearly project of providing comparable interventions in each community in which it meets. A second example is APA Division 9, the Society for the Psychological Study of Social Issues (SPSSI).

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The SPSSI, an interdisciplinary association of approximately 3,000 social scientists, is dedicated to the application of psychological science to the formulation of sound public policy. Since SPSSI’s foundation in 1936, its members have been at the forefront of scientific examination of social issues, including, for example, prejudice and discrimination toward LGBT persons. The division officially applauded the 2010 U.S. District Court ruling overturning California’s Proposition 8 as a victory for gay rights (SPSSI, APA Division 9, 2010). SPSSI researchers consistently have demonstrated that same-sex couples do not differ from their heterosexual counterparts in any essential psychological dimension. In addition, the institution of marriage bestows far-reaching psychosocial and physical health benefits to same-sex couples, in the same way that heterosexual couples benefit from being married. Moreover, a substantial body of scientific research has confirmed that the health and well-being of children raised by same-sex parents is equivalent to that of children raised by heterosexual parents. The SPSSI describes itself as seeking to bring theory and practice into focus on human problems of the group, the community, and nations as well as the increasingly important problems that have no national boundaries. All of the APA directorates engage in social justice activities, including the Public Interest Directorate as well as the Science, Educational, and Practice Directorates. The following describes only some of the directorates’ most recent activities. APA Executive Director of the Public Interest Directorate Gwendolyn Puryear Keita (2010) reported that the directorate’s committees, task forces, and offices often are passionate in their efforts to collect and disseminate the critical research and knowledge that shed light on the problems facing society and to make a difference to their constituencies and to the community as a whole. For example, the CWP asked the question, “What is the impact of the sexualized images of girls frequently seen in magazines, other media and the culture?” A task force produced a highly influential report, of which thousands of copies have been disseminated widely to the media and the public. The Report of the APA Task Force on the Sexualization of

Girls (APA, Task Force on the Sexualization of Girls, 2007) has informed public policy and has been used to support the work of allied groups, organizations, and individuals worldwide. Psychologist and Congresswoman Judy Chu (D-Calif.) is cosponsoring, with Representatives Tammy Baldwin (D-Wis.) and Shelley Moore Capito (R-W.Va.), the Healthy Media for Youth Act (H.R. 4925). This legislation is largely based on the APA report’s recommendations, which would provide youth empowerment and media literacy programs, support research on the effects of negative media images on youth, and establish a group to create recommendations on positive media. Another outcome of the report is the development, with APA’s Education Directorate, of curricula and teaching materials for middle and high school students. The Education Directorate has an active advocacy agenda, including grants for suicide prevention at institutions of higher education. According to Cynthia D. Belar (2010), executive director of the Education Directorate, these grants are authorized through the Garrett Lee Smith Memorial Act, which is the culmination of a project initiated by APA and APA members. Since its creation in 2004, the program has provided approximately $16 million in grant funds to 94 institutions of higher education. The Science Directorate, which works to communicate, facilitate, promote, and represent psychological science and scientists, oversaw the completion of the final report of the Task Force on the Interface Between Psychology and Global Climate Change (APA, 2010d), which garnered significant interest from the popular press, according to Executive Director Steven J. Breckler (2010). The Science Directorate also has an active advocacy staff to enhance support for psychological research, including, for example, the treatment of drug addiction, fetal alcohol spectrum disorders, and the range of behavioral and social science supported across 19 institutes of the National Institutes of Health, nurturing diversity in the scientific workforce, and the psychology of financial risk-taking. Katherine Nordal (2010), executive director of the Practice Directorate, promoted the findings of the Stress in America survey through the directorate’s Public Education Campaign (PEC). The results 87

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of the survey informed the public about the connection between psychological and physical health and the influence of lifestyle and behaviors on health. The PEC’s Mind/Body Health initiative includes a partnership with the National YMCA that greatly facilitates community outreach and working together to promote health and wellness. The staff and members of the APA Practice Organization advocate for both providers and consumers of mental health services. Its State Leadership Conference ensures diversity representation through special funding. Various state, provincial, and territorial associations have also taken initiative to engage in civic virtue. For example, Pennsylvania Psychological Association worked to abolish corporal punishment in public schools. The Texas Psychological Association has a division of social justice and provides regular articles for the association newsletter to educate its members and the public about key issues of concern. No regular method currently is in place to keep track of such activities, but many are involved to working hard to promote the values within their association. POLITICAL ADVOCACY The APA’s Government Relations staff stays informed about key legislative, administrative, and related issues. APA is the largest and most visible national organization that advocates for psychology at the federal level (APA, 2010b). The Public Interest Directorate engages in advocacy activities to apply psychology to the fundamental problems of human welfare and the promotion of equitable and just treatment of all segments of society. The Education Directorate works to increase federal support for psychology education and training and to promote the application of psychology to training and education-related activities. The Science Directorate seeks to advance and preserve the infrastructure of psychological science. Two APA-afilliated organizations also engage in government relations activities, including the APA Practice Organization (APAPO), a 501c(6) organization, separate from APA that advocates on behalf of practicing psychologists and consumers of psychological services in such areas as insurance parity and prescription privileges. The 88

Education Advocacy Trust is also a 501c(6) organization that was established to support education advocacy issues, such as funding for the Graduate Psychology Education Program and mental health services on college campuses. Also affiliated with the APA Practice Organization is the Association for the Advancement of Psychology (AAP). AAP works to ensure that psychology’s voice is heard in Washington concerning the practice, education, and science legislative agendas. Fundamentally, AAP exists to promote psychology’s practice, education, and science legislative agenda (AAP, 2010).

American Psychological Foundation Since 1953, the American Psychological Foundation (APF) scholarships and grants have supported research and programs that address critical issues that people face every day. Thanks to APF support, from 2005 to 2010, graduate students and psychologists have built psychological rehabilitation camps for children after the Indian Ocean tsunami; exposed the stigma against those suffering from depression and developed strategies to educate people to dispel prejudice; piloted a program to teach teenagers about tolerance and stereotypes in an ethnic neighborhood known for gang violence; and brought psychological services to pediatric primary health care clinics across rural Nebraska. The belief is that psychology is the only field that has the science, the tools, and the breadth to find solutions to these problems. It is the mission of APF to provide financial support to develop and apply psychology’s responses to emerging issues and challenges in our society. The foundation believes that it bears a responsibility to bring psychology to the public and to make the practice work for healthier happier lives. APF wants to improve the health and wellbeing of individuals everywhere—particularly those who are most vulnerable, ill, marginalized, or maligned. To do this, psychologists must marshal greater resources to tackle the problems for which psychology can make life-changing differences. Particular future goals include the following: understanding the effect of behavioral influences on health and well-being, uncovering the causes of violence to dispel and prevent it, applying psychology

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to populations or persons who are vulnerable or marginalized, and providing financial support to talented students and important projects. CONTROVERSIES Thoughtful and informed psychologists may find themselves in honest disagreement as the association addresses, through policies, reports, or public statements, such complex and controversial issues as strategies to promote increased diversity in the leadership of the discipline; pursuit of prescription privileges; examination of the effects of abortion on mental health; and many other issues. APA President Carol D. Goodheart (2010a) described how, despite the fact that every APA action receives thoughtful and careful consideration throughout the association’s transparent governance and vetting procedures, several APA reports have been hotly contested. These have included APA’s report on abortion and mental health, which found no credible evidence that a single elective abortion of an unwanted pregnancy in and of itself causes mental health problems for adult women; APA’s report on sexual orientation change efforts, which concluded that evidence is insufficient to support the use of psychological interventions to change sexual orientation; and APA’s report on same-sex marriage and parenting, which found no research evidence to suggest these couples should be denied marriage rights or joint and second parent adoption rights. Heated disputes also ensued over APA’s stance on the role of psychologists in interrogations (the issue of interrogation of detainees is discussed in more detail in Chapter 5 of this volume), proposed changes to the APA model licensing act, and the proposed seating of the four ethnic-minority psychological associations on the Council of Representatives. Generally, but not always, there is relatively less controversy, and the APA is most effective when it develops policy on issues based on good science. Many believe that the APA should take stands on issues even when the data do not exist, if compelling reasons exist to do the right thing. Interestingly, who determines what is good science can be a challenge, and which issues are compelling enough to take stands, as Brewster Smith (1990) eloquently suggested decades ago, is not

always clear. Smith indicated that research may not always be available for issues of deep and urgent concern to APA members. The recent attempt to approve a bylaw change to seat a representative from each of the four ethnicminority psychological associations failed by a slightly more than one-third vote of the APA membership (a two-thirds vote approval is required for a new bylaw amendment to pass). The racial–ethnic minority community was demoralized. Despite the overwhelming support of this initiative by the Council of Representatives, and despite the fact that the vast majority of the membership supported the initiative (slightly less than two thirds), multiple reasons likely contributed to the failure. The APA Presidential Task Force on Enhancing Diversity: Final Report described how “unspoken attitudes, unwillingness to share power or resources, resistance to movement from the status quo, and lack of experience with some of APA’s underrepresented members (e.g., persons with disabilities) can be undercurrents that lead to organizational barriers of exclusion” (APA, 2005a, p. 23). Although a process typically informs the determination of policies, not all members will agree with what the majority or the governance members have found, no matter how open and inclusive the process is. It would be unrealistic to expect to achieve total consensus. In dealing with the contentious issues, Goodheart (2010a) suggested, In trying to make changes in a large umbrella organization like APA, with many constituencies, we must realize that if people perceive a loss in trying to do things differently, they will push back. Tensions about loss are often expressed via e-mail as outrage. I see four elements converging online to strain the collegiality within APA: conscience (we psychologists often raise issues we care most passionately about—a good thing, generally); impulse (some respond quickly to messages that present only the sender’s opinions, without having balanced information that might affect one’s responses); the civility gap (some post 89

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rude and demeaning messages aimed at those with whom they disagree); and viral distortion (a small number perpetuate shocking misrepresentations about APA’s actions, policies and procedures). (p .5) Goodheart further suggested that the effect on APA is damaging when members and the public believe the distortions. She suggested that the association could address issues surrounding communication and relationships successfully if enough of the members could control their emotions. She pointed out that differences matter but common goals matter more. OTHER RUPTURES AND COLLISIONS Ruptures and collisions occur, including among groups of allies. For example, at the 2005 National Multicultural Conference and Summit, the lesbian, gay, and bisexual community was highly upset and offended that the organizers of the conference (who consisted of people of color, representing Divisions 17, 35, 44, and 45) were perceived to have allowed a conversion therapy program to be scheduled and presented. Immediately after the program, and especially during the town hall feedback session, this community expressed the injuries to their dignity and sense of self that they had experienced. Some members of the racial–ethnic minority community perceived, and later conveyed the perception, that the complaints were overdone to the point of creating new injuries to communities of color. Similar conflicts have surfaced in other contexts, at previous summits and in other settings. At times, when those closest to us, including those from whom we most expect understanding or empathy and those with whom we have shared struggles and values, suddenly engage in a different perspective, opinion, or behavior, we feel more intensely betrayed (Vasquez, 2007). Several categories of conflict have tested the fiber and fabric of APA and its policies. Specific events within APA have been contentious enough to require formal structures for solutions. One event was precipitated by the response to a report 90

presented by six African American psychologists, appointed by the APA Board of Directors, to represent APA at the World Conference on Racism (WCAR) in Durban, South Africa. Tensions arose from many Jewish members of the Council of Representatives based on their perception that our representatives should have left the WCAR when the representatives of the United States and Israel did in response to anti-Semitism expressed by some factions at the conference. The APA’s psychologist representatives to the conference believed that their task (which they successfully accomplished) was to stay and ensure that mental health issues were addressed in the final conference report. This action resulted in considerable tension among members of the Council of Representatives that took more than a year and a half to resolve. A task force was appointed by then APA President Diane Halpern to address the concerns, which resulted in a report: Task Force on the World Conference Against Racism Report: Findings and Recommendations (APA, 2005b). The recommendations included (a) that the Council receive the good work of the delegation, which included language about the importance of mental health in the UN Declaration Against Racism, and (b) that a resolution condemning anti-Semitic and anti-Jewish discrimination be developed. That resolution passed in 2006. Importantly, a complex process of communication and negotiation was involved in reaching a satisfactory position. Representatives from different perspectives were appointed to this task force, and members of the task force often consulted a number of constituents throughout the process. Conflicts can occur within groups, as well. For example, in 2006, in a follow-up to the WCAR report, the APA Council of Representatives approved a resolution that called on APA to take leadership in opposing anti-Semitism; encourage research to better understand anti-Jewish prejudice; and include appropriate information on anti-Semitism in its training materials and activities. The link between criticism of Israeli government policies and anti-Semitism has been the subject of intense debate and controversy. An addendum was proposed that tried to distinguish between anti-Semitism and the

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link asserted in the context of discourse about the actions of the State of Israel. Members of the Jewish community disagreed about this proposed addendum. Some believed that it undermined a clear commitment to anti-Semitism. Others believed that it was necessary to be free to criticize some Israeli policies without being defined as anti-Semitic. It was a complex controversy, similar to the controversy stirred up by former U.S. president Jimmy Carter’s book, Palestine, Peace Not Apartheid (2006) about the Israeli–Palestinian conflict. That title alone, as well as the content, brought sharp critiques from Americans sympathetic to Israel. These issues stirred up intense feelings among members. In this case, compromise language was also agreed on after a deliberate and lengthy process. STRATEGIES FOR CONFLICT RESOLUTION Although painful for all concerned, the conflicts described underscore the need to recognize the injury that allies can and do cause one another. They illustrate the potential for further conflict, the need for increased understanding, and the need to open new avenues to healing for all involved. Leaders and potential leaders of our profession must develop the skills to have difficult dialogues to acknowledge, recognize, and resolve these (often unintended) ruptures and collisions that lead to pain and trauma and end in conflicts (Vasquez, 2007). APA has found several models for conflictresolution to be particularly effective. Among these are mandated and negotiated face-to-face dialogue, diversity training, and Board of Directors–brokered arbitration among representatives of affected groups, including appointments of task forces with representatives from groups in conflict, such as the Task Force on the WCAR. Other strategies have involved formal workshops at convention to promote and increase understanding. An example of increasing understanding through dialogue took place in a forum at the convention in Washington, DC, in August 2005 (Vasquez, Bingham, & Shullman, 2005) where several panelists discussed reactions to and lessons

learned from the conflicts among marginalized groups at the National Multicultural Conference and Summit in January 2005. More than 200 people attended the session. Panelists and participants engaged in respectful dialogue that acknowledged injury, clarified the issues that generated tensions, and earned trust. In New Orleans in 2006, Armand Cerbone, chair of BAPPI, organized eight hours of programming by the Public Interest Directorate and other cosponsors focused on several topics, with the theme, “When Multicultural Worlds Collide” (Cerbone, Bingham, Shullman, & Vasquez, 2006). Perhaps one of the most contentious issues is that associated with psychologists’ involvement in military interrogations of detainees. From 2004 to 2010, the APA was engaged in two related and distinctly challenging dialogues. The first dialogue focused on what behaviors were permissible for military psychologists involved in some role in interrogation of detainees on particular sites of detention. APA was clear that no form of torture was ever allowable; the contentious issue centered on the settings deemed to be illegal sites. The second challenging dialogue involved how the APA Ethics Code addressed Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Bodies, and between ethics and organizational demands (Ethics Code 2.03). Pope and Vasquez (2011) addressed two different views of the contentious dialogues in Chapter 12 of the fourth edition of Ethics in Psychotherapy and Counseling: A Practical Guide. The goal of the chapter, “Different Conclusions: Example From the Interrogation Controversy,” was to present the reasoning and evidence leading to two different conclusions, not to determine which is correct, but rather to illustrate how people of good faith can reach different conclusions and respectfully disagree about important ethical dilemmas, including about association policy (Pope & Vasquez, 2011). Indeed, honest-minded and informed people had different views on the interrogation issues, and members were earnest and passionate as they voiced their concerns. The related issues and ideas were discussed, vetted, and presented at various venues for several years, including at scheduled symposia at several APA conventions. Deliberate review was undertaken of the ethical principles, standards, laws, and relevant 91

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research, as well as multiple consultations and consideration of alternatives and the impact of decisions, all aspects of key decision-making processes. THE DEVELOPMENT OF A SOCIAL JUSTICE ORIENTATION How do individuals develop a social justice orientation? Does the profession select for those most likely to have those values? Caldwell and Vera (2010) identified, through a qualitative research design, critical incidents that cultivated a social justice orientation among counseling psychology doctoral students and professionals. Analysis of rank-ordered items indicated that the categories “Exposure to Injustice” and “Influence of Significant Persons” were most frequently ranked as the most influential critical incidents in the development of a social justice orientation. Most individuals may be influenced by and even call on their lived experiences in their work context. For example, empirical research on federal appeals court decisions indicate that in sex discrimination and sexual harassment cases, female judges were significantly more likely than male judges to find for the plaintiff (Liptak, 2009; Peresie, 2005). Even more interesting was the finding that the mere presence of a woman or a Black person on a three-panel appeals court increased the probability that a White male judge would find for the plaintiff (Liptak, 2009; Peresie, 2005). The implication is perhaps that the presence of a woman or person of color in most settings may influence awareness of colleagues, including increased understanding and empathy for the perspective represented by that identity. In fact, that may be the element that underlies the contact hypothesis. That is, Gordon Allport’s (1954) belief that under appropriate conditions, interpersonal contact is one of the most effective ways to reduce prejudice between majority and minority group members. When a person experiences increased understanding and empathy for the other, prejudice is reduced, and motivation to promote justice may increase. Managed contact between the groups representing differences should reduce problems related to prejudice and lead to better interactions. 92

Caldwell and Vera (2010) specifically describe aspects of a humanistic education designed to develop social justice orientations in students. Assessing students’ levels of commitment to social justice by assessing competences in affective (sensitivity and compassion for marginalized populations), intellectual (understanding the causes and conditions that maintain and perpetuate oppression), and pragmatic (learning tools and skills for social action) dimensions of justice when students enter and exit education programs is a suggested strategy. In addition, formalized service-learning opportunities could be incorporated into a curriculum, for example, requiring practicum training with marginalized populations, mentoring students in social justice–related research projects. A good graduate education would help students increase their understanding of social justice and help them find ways to translate their philosophical and personal beliefs into actions. Tenets from feminist and multicultural psychological paradigms are called on to provide a framework for teaching and practicing social justice with psychology trainees (Burnes & Singh, 2010). Upon entering the community and profession of psychology, individuals can be socially influenced to adopt the virtuous characteristics that contribute to social justice (Meara et al., 1996), even if they do not possess those characteristics. Others have focused on the importance of providing training experiences to promote a social justice orientation among psychology doctoral students, especially those in applied areas. Lewis (2010) addressed the challenge in the predoctoral education of professional psychologists of providing practicum training experiences with a significant social justice focus while also ensuring that students acquire the full range of foundational competencies expected of practicing psychologists. Toporek and Vaughn (2010) highlighted areas for additional consideration in social justice training, including the importance of examining values and assumptions of the profession, issues of power within training programs, the need to train students in navigating and negotiating in systems, benefits of interdisciplinary collaboration, pragmatic and ethical issues in shifting to a social justice framework, and professional development needs of faculty and

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supervisors who are involved in training students about social justice. Caldwell and Vera (2010) offered several specific training recommendations to graduate programs that are committed to social justice orientation development. They included the following: ■

■

■

■

■

Provide ample opportunities for exposure to societal injustice and oppression through varied mediums. Integrate formalized service-learning opportunities into curriculum and require practicum training with marginalized populations. Institutionalize social justice–focused mentoring and peer support networks in graduate curriculum, which aim to provide both formal and informal opportunities for students to interact with others and process experiences related to oppression and social justice; provide mentoring in social justice–related clinical work and research projects. Conduct assessments of incoming students’ social justice orientations to determine the educational needs of students, develop appropriate training goals and ensure that educational modalities cultivate and guide the development of competencies in affective, intellectual, and pragmatic dimensions of social justice (Buckley, 1998). In training students who enter graduate school with mature social justice orientations, focus on integrating knowledge, values, and beliefs into social justice actions specific to counseling psychology work and explore the connections between personal and professional identities. (Caldwell & Vera, 2010, p. 174)

Burnes and Singh (2010) provided concrete strategies for this training in both didactic and fieldwork practicum experiences in professional psychology. Described goals include reading requirements, a didactic practicum course, activities to promote self-examination, and learning activities to promote examination of systems. They stated that it is imperative that social justice training be incorporated in the training of future generations of professionals so that they will be able to respond equitably and responsibly to the needs of

clients and patients, systems, and injustices that affect our changing world. Burnes and Singh acknowledge that the evaluation of social justice advocacy is nascent, so that a combination of formal and informal assessments to assess trainee skills may be necessary. The Privilege and Oppression Inventory (Hays, Chang, & Decker, 2007) was suggested as a measure that assesses a trainee’s beliefs about race, gender, sexual orientation, and religion. They also suggested The Social Justice Advocacy Readiness Questionnaire (Chen-Hayes, 2001), which evaluates several domains of trainee advocacy, including individual awareness, values, and skills in social justice work. Assessment tools may be used before, during, and at the end of the trainee’s placement experience to track the trainee’s understanding of the work. CONCLUSION The nature of the membership of the APA has evolved, reflective of demographic changes in society. A more diverse and inclusive association, with more women and members of various cultural and international backgrounds, demonstrates that those with lived experiences of injustice are more prevalent in the association and in leadership roles. This presence, along with similar forces in society, influences members of the association to engage in the application of psychological science to the complex, controversial, and grand challenges facing society. Fulfilling psychology’s promise requires the APA leadership to develop strategies that address such challenges, and the potential differences among members about how and whether to address them, with respect, compassion, and frankness. In our involvement in social justice activities, psychologists attempt to provide the current state of scientific and professional knowledge. Regardless, many members of APA as well as society do not agree with APA’s advocacy positions. What are the sources of intergroup conflict? Research that has identified sources of intergroup conflict (Alexander & Levin, 1998) found that cognitive factors, such as social categorization and social identity theories; motivational factors, such as social dominance theory; or prejudiced attitudes and how these are 93

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manifested in subtle rather than overt ways (aversive racism, modern racism, symbolic racism, and enlightened racism) contribute to intergroup conflict, even within the field of psychology. We often conceptualize people like ourselves to be in the ingroup; people we do not particularly relate to are relegated to the out-group. This process usually happens unconsciously and has tremendous consequences on how we relate to others. We treat people in the in-group with regard and respect. We go the extra mile, are considerate, and provide the benefit of the doubt, and the foibles of those in-group members are hardly noticed. On the other hand, people in the out-group are ignored or neglected. When they are on our radar screen, we are at best distant or we convey negative regard. We assume the worst and are harsher with our judgments and condemnations. Social psychologist Susan Opotow (1990) described how, when groups form a we–they dichotomy, people are able to able to treat the they as objects. We can treat the they in insensitive ways, including extreme treatment such as lynching and holocaust-type activities. People in the in-groups are more highly valued; are more trusted; and engender greater cooperation as opposed to competition, more compassion as opposed to judgment and condemnation. These processes are largely unconscious. As perpetrators, we can be blind or fail to be empathic with the potential effects of our behaviors. In the words of my colleague, Nancy Felipe Russo (personal communication, 2007), sometimes people who ordinarily may be supportive, get “focused and under high cognitive load and their resulting ‘tunnel vision’ undermines their (ordinary) inclusiveness.” In addition, we sometimes engage in hurtful behaviors because it has not occurred to us that certain behaviors are hurtful. Our discipline of psychology covers a wide range of career paths, research areas, and applications. A general value of the field is that of care and compassion for the welfare of humanity. Regardless of where we each stand on the various positions that the APA takes in regard to social justice issues, we should agree or disagree in a respectful manner. Righteous indignation can create intergroup conflict as much as prejudiced attitudes. Maya Angelou made a very powerful statement about our impact 94

on others: “I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel” (1998). For all of the grand challenges that effective collaboration may seem to pose and the seemingly intractable challenges that unenlightened self-interest may seem to present, it is above all things worth noting that I have written and you are reading because those challenges have been met and that self-interest has been overcome time after time after time. Contrary to Tony Kushner’s lovely assertion at the end of “Angels in America,” the world doesn’t only move forward. But it lurches forward farther and more often than it lurches back, and that progress is ethical and intellectual, as well as material and technological (1996). Although, ultimately, these are fairly specious distinctions, material and technological advances are not sustainable in ethically and intellectually bankrupt societies and the smart and the good do not hold out long without food and shelter and light and iPads. Every human generation to come before us has faced dire threats. And every generation has endured, or we would not be here with our children and grandchildren and nieces and nephews. As our technology has become more sophisticated, the threats have become more dire. Psychology offers the promises of providing mechanisms for coping with the individual, the interpersonal, and the societal dimensions of those threats. We cannot afford a moment’s complacency or self-congratulation, but we can allow ourselves to live in hope.

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CHAPTER 4

ETHICAL DECISION MAKING IN MENTAL HEALTH CONTEXTS: REPRESENTATIVE MODELS AND AN ORGANIZATIONAL FRAMEWORK R. Rocco Cottone

No degree of preparation can fully insulate a psychologist from facing an ethical dilemma or a charge of unethical conduct. Professional savvy or ethical sensitivity, although helpful, will not suffice. Psychology practice is challenging. New situations arise that require intelligent educated action. Even with good intentions, sometimes psychologists make choices they may later regret. Some choices may have serious repercussions. Some choices have ethical implications. Of course, some psychologists may be confronted by clients who have malicious intent, and it is difficult to protect against a manipulative client in search of a legal settlement. Prevention is a psychologist’s first line of defense against ethical challenges. Once challenged, however, psychologists should address the challenge competently and ethically, ideally by means of a formal decision process. As a best practice, the decision making of psychologists should be guided by a formal decisionmaking process and a positive ethic (Handelsman, Knapp, & Gottlieb, 2009), meaning that psychologists should know how to act when confronted by an ethical dilemma, not just how not to act. Ethical dilemmas, those quandaries all psychologists face in practice that place psychologists in positions requiring choices about how to act, are not only a sign of conflict (at some level) but also are the sign of a mature profession. Psychologists have arrived at a professional place and time that speaks to their membership in an established profession. Psychologists, in this regard, are intellectuals, not just trade

workers and not laborers, but professionals who apply both historical and scientific knowledge to complex circumstances. The ethical practice of psychology must not be just about avoiding punishment, it also must be about establishing a means and method for high-level decision making in the best interests of clients, society, and the profession of psychology itself. Knowing how to act ethically, being willing to act, and not just knowing how to avoid being unethical, is a critical element in each psychologist’s personal development and acculturation in the profession (Handelsman, Gottlieb, & Knapp, 2005). When mental health professionals are surveyed on issues of importance related to ethical practice, decision making typically is highly ranked. Knapp and Sturm (2002) cited a study that ranked decision making second in a long list of potential needs in ethics continuing education. Practitioners must know how to apply a decision-making model in a competent and professional way. Knowing when to apply this decision-making model also is important. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) does not provide guidance on such matters; it also does not recommend a decision-making model, unlike its Canadian counterpart (Canadian Psychological Association [CPA], 2000). The Ethics Code, however, does define five general ethical principles to guide decision making (more on ethical principles in the section Major Intellectual Movements in Decision Making in Psychology).

Special thanks to Hsin-hsin Huang for her assistance in producing this chapter. DOI: 10.1037/13271-004 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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As a general rule, psychologists should apply a decision-making model when they are faced with an ethical dilemma. An ethical dilemma “is a circumstance that stymies or confuses” the psychologist because (a) there are competing or conflicting ethical standards that apply, (b) there is a conflict between what is ethical (e.g., professional standards) and moral (e.g., religious standards), (c) the situation is such that complexities make application of ethical standards unclear, or (d) some other circumstance prevents a clear application of standards. (Cottone & Tarvydas, 2007, p. 2) In these situations, knowledge must be applied, and judgment is involved. Knapp and VandeCreek (2006) made a similar case; they argued that decision making is necessary when judgments must be made regarding conflicting principles, laws, or institutional policies. A formal decision-making process will help the psychologist discern the best course of action when there are competing possibilities and in cases in which the application of a single standard is not clear-cut. This chapter addresses ethical decision making in psychology. It gives a brief overview of several intellectual movements that have affected decisionmaking models in psychology, and it provides a categorization of models on several theoretical, philosophical, and practical criteria. It provides example models to help the reader understand the complexity of decision making and the choices professionals may make in addressing different concerns though different models. It also addresses issues related to willingness and resoluteness of the psychologist to take action to address an ethical dilemma, and it explores the question as to whether individual conscience is an adequate arbiter of decision implementation. This chapter does not provide an exhaustive review on the topic of ethical decision making, but hopefully the reader will have a broad understanding of the literature and of how decision theory relates to practice at the most basic levels. This chapter provides information to facilitate competent management of challenging clinical circumstances—those situations that will defy even 100

the most ethically mature and experienced professional psychologist. DEFINING ETHICAL DECISION MAKING IN PSYCHOLOGY As used in this chapter, the term ethical decision making (sometimes referred to by others as ethical problem solving or ethical choice making) relates to the use of formal models or processes to address professional ethical dilemmas within a mental health context. Ethical choice and moral choice philosophy often address decisions, but those decisions are focused on choices that involve a moral dilemma (whether stealing to survive is justified, or whether one should kill in self-defense, as examples). Literature also addresses decision making on matters of choices that have little to do with mental health practice—like choosing to buy a certain product when alternatives are available. The literature addressed in this chapter is limited to those publications or works that specifically attend to choices mental health professionals must make when facing a professional ethical dilemma. Literature outside of the mental health realm may be relevant to professional ethical decision making, but readers must be alerted to the specific contexts within which certain models or terminology apply. Also, because ethical decision making is so important that it permeates all specialties of psychology, decision-making models are briefly mentioned in other chapters in this text, including Volume 2, Chapter 2, this handbook, on older adults, and Volume 2, Chapter 8, this handbook, on industrial–organizational psychology. In this chapter, the focus is clearly on professional ethical decision making in a mental health context, and when specific publications are referenced that veer from that focus, special notation is made. MAJOR INTELLECTUAL MOVEMENTS IN DECISION MAKING IN PSYCHOLOGY Three major intellectual movements are relevant to the ethical decision making in psychology. An intellectual movement, as defined here, refers to a unique philosophical framework that excludes easy application of ideals from another competitive philosophy. For example, relying on a decision maker

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who rationally applies accepted standards is different than relinquishing a decision to someone based primarily on his or her character. Similarly, committee decision making and individual decision making are mutually exclusive. As applied to decision making, an intellectual movement must have a unique philosophy upon which decision making stands. Given this definition, the three major intellectual movements in the area of ethical decision making in psychology are principle ethics, virtue ethics, and relational ethics. Additionally, the theme of multicultural sensitivity represents an overarching framework within which decisions may be generated. Multicultural sensitivity does not rise to the level of a full-fledged movement, but it does provide a general theme within which decisions are framed. The next sections address the three intellectual movements and the theme of multicultural sensitivity as applied to ethical decision making in psychology.

Principle Ethics: The First Intellectual Movement in Psychology Decision Making Some outstanding works on ethics in the health professions have influenced decision making in psychology. One of the most influential is a text entitled Principles of Biomedical Ethics by Beauchamp and Childress (2009) now in its sixth edition. The first edition was published in 1979. In keeping with the foundational work of R. W. Ross (1930) on principle ethics, Beauchamp and Childress defined four ethical principles to guide medical professionals in decision making. The principles were autonomy (the patient’s right to make choices on his or her own), beneficence (the idea that medical professionals should primarily be concerned with the well-being of patients), nonmaleficence (the idea that medical professionals should do no harm), and justice (the idea that professionals should treat people fairly and without discrimination). They also defined an ethical rule (not as prominent as a principle) entitled “fidelity,” meaning that medical professionals should be faithful to their patients. It was Kitchener, in 1984, who firmly brought psychology’s attention to the biomedical ethical standards defined by Beauchamp and Childress. Kitchener (1984) in a seminal work, embraced the biomedical ethical principles,

and she elevated Beauchamp and Childress’s ethical rule of fidelity to an ethical principle in psychology (following the lead of Drane, 1982). (Beauchamp and Childress later defined professional–patient relationships as a principle, addressing concerns such as fidelity, privacy, and confidentiality.) Kitchener further heralded the works of Hare (1981) applying his two levels of moral thinking: intuition and critical evaluation. Kitchener’s work is highly cited, and she succeeded in establishing the foundation for what can be called principle ethics in psychology. Principle ethics is the logical application of identified and highly accepted principles (overarching standards) that are crucial to any decision in psychology. Kitchener defined the ethical principles as prima facie, meaning they hold weight and should be set aside only for compelling reasons. (See Ross, 1930, seminal analysis of prima facie responsibility.) Kitchener stated, While the problems of applying ethical principles in decision making need to be acknowledged, this does not keep them from being useful or important. By accepting them as prima facie valid, we imply that their relevance always needs to be considered in ethical situations. (Kitchener, 1984, p. 53) Kitchener’s work (1984), specifically, and principle ethics, in general, lay the groundwork for defining one philosophical framework for understanding ethical decision making in psychology. Decision making is viewed as a process of an individual who considers ethical principles while deliberating an ethical dilemma. Principle ethics fits nicely within the context of a psychology that views the individual as a decision maker—a singular person who weighs options and makes choices.

Virtue Ethics: The Second Intellectual Movement in Psychology Decision Making A competitor view to principle ethics is virtue ethics. Initially, virtue ethics (which focuses on the character of the decision maker) was viewed as a complement to principle ethics. In the 21st century, virtue ethics often is described in general textbooks on ethics as a different or as an alternative approach to 101

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ethical judgment (Sommers-Flanagan & SommersFlanagan, 2007; Sperry, 2007; Welfel, 2006). Originally, Meara, Schmidt, and Day (1996) proposed that the virtue of the ethical agent (the decision maker) is crucial in decision making and worthy of study in tandem with the study of ethical principles. They proposed that personal character should be a major component in the decision process. The issue of virtue raises the discussion of making decisions from the simple means of defining right and wrong (e.g., means to avoid punishment for breaching an ethical standard or principle) to the means of an ethical ideal (virtuous professional psychologists). The proponents did not propose that virtue ethics should replace principle ethics, but they did make the case that virtue ethics complement principle ethics, and they even went so far as to call for an expansion of ethics research to encompass the character of the decision maker. They demonstrated that one cannot fully understand an ethical decision on the basis of principles alone: Some people will do the minimum only to avoid punishment or will not act ethically at all, whereas other people will embrace an ethical lifestyle regardless of ethical dictates. In either case, the decision maker is the crucial variable. This helps to explain why people bound by the same code of ethics act differently in similar circumstances.

Relational Ethics: The Third Intellectual Movement in Psychology Decision Making A third philosophical or theoretical movement that has affected the decision-making literature is what can be identified as relational ethics. Relational ethics, which focuses on social context, has put principle ethics in perspective, just as virtue ethics provided another way to view the decision process. One of the first publications to address contextual factors was a chapter by Hill, Glaser, and Harden (1995). In that chapter, the authors argued that consideration of contextual factors enters into value judgments, and therefore context affects decision making. They stated, Time in a particular setting or working from a certain theoretical base represents 102

at least a certain amount of exposure to specific values and often a personal investment in those values. Factors such as gender, ethnicity or race, religious background, geographic location, and so forth, are even more obviously related to values. The therapist’s personal experiences of oppression and the uses of power, (e.g., through race, sexual orientation, gender, size, disability, class, and age) will sensitize that individual in certain ways. Those same factors and others (such as religious background, family or living situation, or geographic location) will influence the therapist’s priorities and assumptions. In order to make a feminist model for decision making, these aspects of who the therapist is cannot be separated from the decisions that she or he makes. If therapists turn to ethical decision-making models that do not address these factors, they then run the risk of making these factors invisible and thus not open to scrutiny. (1995, p. 25) Hill et al. made a case for consideration of the social–cultural context in decision making, “particularly as it relates to issues of power” (1995, p. 36). They provided a stepwise model for decision making, which they called “a feminist model for ethical decision making.” The steps are as follows: (a) recognizing a problem, (b) defining the problem, (c) developing solutions, (d) choosing a solution, (e) reviewing process, (f) implementing and evaluating the decision, and (g) continuing reflection. They argued that through the decision-making process the feminist must consider “the emotional-intuitive responses of the therapist; the sociocultural context of the therapist, client, and consultant particularly as it relates to issues of power; and the client’s participation in the decision making process” (1995, p. 36). The call for a feminist ethics is a call for placing principle ethics in the context of social (and specifically social power) considerations. Betan (1997) also made a significant contribution to the decision-making literature by introducing a hermeneutic model of ethical decision making.

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Hermeneutics is a philosophical framework through which knowledge is viewed as residing in the context of human relationships. Betan stated, “Hermeneutics involves an awareness that the process of inquiry is affected by and in turn affects the person seeking knowledge” (1997, p. 352). Therefore, all historical, personal, and circumstantial factors are involved in every decision. Even ethical principles are viewed as historical and circumstantially situated—they are not standards that come from some objective source of knowledge—they are reflective of the cultural context from which they emerge and the situation in which they are applied. Betan did not provide a stepwise model for decision making. He attempted, however, to demonstrate that hermeneutics “allows the therapist to remain part of the situation, and it places authority not in abstract, externally imposed principles but rather in the connection between therapist and patient” (1997, p. 362). Social and relational considerations are prominent in this model. Still, in hermeneutics, there is an individual decision maker. The decision is not made by a committee. In other words, the model is not so extreme as to situate the mind of the individual in the social matrix. Some (one) person does weigh the social factors that are involved in a decision, and the decision is still a psychological process for the decision maker. Cottone’s (2001) model is much more extreme. Guided by social constructivism as a philosophical movement in the human services, Cottone took an extreme relational stance, claiming that decisions are not made in the head of the apparent decision maker—rather they reflect a consensualizing process that is culturally, socially, and interpersonally imbedded. He built on the works of Gergen (1985) on the constructionist movement in modern psychology, and he used the works of Maturana (1980) on the biology of cognition (as lauded by Dell, 1985) as representing a fully relational view of the human condition. Using these foundational works, Cottone developed a social constructivism model of ethical decision making, which is completely interpersonal. Decisions are taken out of the decision maker’s head and placed within the social interactive context. Decision making involves negotiating, consensualizing, and arbitrating, rather than individual deliberation. (There is more on this model in

the section Philosophically Grounded Models of Relational Influence.) MULTICULTURAL SENSITIVITY: A DECISION-MAKING THEME Multiculturalism may not constitute a fourth intellectual movement affecting ethical decision-making models in psychology, but it certainly represents a theme that has major implications for decisionmaking processes. Viewing ethics through the lens of multiculturalism places emphasis (even prominence) on the identification and analysis of established cultural traditions that may affect the relationship between the psychologist, the client, and other stakeholders affected by a decision. Multicultural sensitivity, for example, can be an overarching theme for decision making that applies principle ethics, virtue ethics, or relational ethics (or some combination). In this way, multicultural factors are fully acknowledged. For example, Knapp and VandeCreek (2007) framed the problem of cultural conflicts in decision making as a tension between application of universal standards (such as ethical principles) and acceptance of the plural truths that are present when addressing culturally situated behaviors (i.e., behaviors that may be counter to ethical principles). They used the example of child discipline, which may be harsher in a foreign culture than is acceptable in U.S. society. In the case described by Knapp and VandeCreek, an immigrant East Asian family in the United States used “extreme physical punishment of their children to ensure obedience and conformity” (2007, p. 660). According to Knapp and VandeCreek, defining the fine line between discipline and abuse, in this case, required a decision process that involved “respectful dialogue” and application of “soft universalism” (no hard line, black-or-white logic in defining principles of acceptable behavior). They stated, We suggest that psychologists engage in a respectful dialogue to help patients clarify their values and goals, and that they look for areas of agreement between the value systems. If this fails to prevent a serious threat to a fundamental ethical principle, we suggest that it is appropriate, as a last resort, to confront 103

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the patient’s values from the perspective of soft universalism, which may mean allowing the ethical principles of beneficence or nonmaleficence to temporarily override respect for autonomy. Even so, the psychologist should only override autonomy to the minimal extent possible, consistent with the overarching goal of beneficence or nonmaleficence. (Knapp & VandeCreek, 2007, p. 663) This suggestion implicitly defines the role of the psychologist as a transcultural negotiator responsible to facilitate solutions to problems that are both true to overarching values in psychology and respectful of cultural differences. Hanson and Kerkhoff (2007) addressed similar concerns specific to ethical decision making in rehabilitation psychology. After providing a detailed example representing a failure to acknowledge Latino cultural factors in medical decision making, the authors stated, Failing to aspire to become a culturally proficient psychologist is to ignore the evolving social landscape within which psychologists practice. As the United States grapples with its founding history and contemporary views of immigration, so too is the discipline of psychology trying to find its voice in the social dialogue on diversity and the impact of multicultural approaches on education, practice, research, and advocacy. (Hanson & Kerkhoff, 2007, p. 418) A psychologist must at least recognize the tension that arises with an automatic application of prevailing standards at the expense of cultural traditions. A decision may be different if cultural factors are understood and addressed through the decisionmaking process. Garcia, Cartwright, Winston, and Borzuchowska (2003) presented a similar multicultural theme: “In examining the available ethical decision-making models published in the field, we found minimal reference to culture or how to integrate culture into ethical decision-making” (p. 269). Garcia et al. used 104

ideas from three of the most culturally sensitive approaches known to that date (Cottone, 2001; Davis, 1997; Tarvydas, 1998) to build a formal model of ethical decision making they called the transcultural integrative model. Their model thoroughly integrates cultural factors with social and psychological factors into the decision-making process, and the model uses Tarvydas’s stages as a framework. Garcia et al. made the case that the transcultural integrative model allowed cultural factors to play “an important and perhaps definitive role” (Garcia et al., 2003, p. 275) in the decision-making process. As with Knapp and VandeCreek (2007), Garcia et al. argued for prominent consideration of multicultural factors in the decision-making process. Multicultural sensitivity, as it is described here, is more thematic than philosophical. Models developed around multicultural sensitivity typically depend on one or more of the intellectual movements to define crucial steps or processes in the decision effort. Models based on multicultural sensitivity can draw from the other intellectual movements without conflict, whereas the intellectual movements appear to be more circumscribed, theoretically distinct, and even mutually exclusive. One can appeal to principles, virtues, or relationships in defining a culturally sensitive way to address an ethical dilemma. But to move from principle ethics to relational ethics, for example, may require a Gestaltlike shift in perspective, as ethical principles are held as established truths, whereas relational ethics are always context specific and historically situated truths. Therefore, the intellectual movements in ethical decision making, when viewed from a pure or absolute point of view, are mutually exclusive, and they may not be reconciled easily. CLASSIFYING MODELS ON PHILOSOPHICAL, THEORETICAL, OR PRACTICAL GROUNDS The three intellectual movements (principle ethics, virtue ethics, and relational ethics) and the theme of multicultural sensitivity have influenced ethical decision making in psychology, and together they constitute a framework for classifying and analyzing existing decision-making models. These models,

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however, also may be classified on other philosophical, theoretical, or practical grounds. Beyond the intellectual movements that have affected the field, an additional philosophical, theoretical, and practical taxonomy offers another way of looking at the models and analyzing their validity. Models can be classified on the basis of philosophy, empirical formulations, or anecdotal evidence. They can be based on specific theories. They can be focused on the individual decision maker, or they can focus on a group of individuals who are influential in the final outcome. They can be a mixture of any number of such factors. Several categories will be defined, and at least one example model will be presented for each category. In every case, however, it will be obvious which intellectual movement is at its base. Individually oriented approaches will tend to be based in principle or virtue ethics, or both. Models that involve interaction will be relationally focused. So the models will tend to be offshoots of the intellectual movements with some specific and unique philosophical, theoretical, or practice-relevant ingredient added to the recipe.

Philosophically Grounded Models of Individual Choice Hare (1991), in “The Philosophical Basis of Psychiatric Ethics,” provided one of the most philosophically grounded models of ethical decision making. Hare argued that there are two levels of ethical decision making, the intuitive level and the critical evaluative level. At the intuitive level, an application of ethical principles is in order. Mental health professionals are taught principles as guides to professional behavior, and when confronted with a dilemma, they use their intuition to apply the principles. Hare argued that, in most cases, dilemmas will be adequately addressed by means of the intuitive application of principles. He also raised concerns about the problem of conflicts between principles. How should those conflicts be negotiated? He stated, That we have a duty to serve the interests of the patient, and that we have a duty to respect his rights, can both perhaps be ascertained by consulting our intuitions at the bottom level. But if we ask which

duty or which intuition ought to carry the day, we need some means other than intuition, some higher kind of thinking (let us call it “critical moral thinking”) to settle the question between them. (Hare, 1991, p. 35) Hare (1991) argued that at the bottom level, the intuitive level, a decision can be absolutist, meaning that there can be a concrete application of a principle to a problem. But at the higher level of decision making (when intuition fails), absolute thinking must give way to utilitarianism. He summarized utilitarian philosophy by stating, “A utilitarian is one who thinks that when faced with a moral decision he ought to act in whichever way is best for the interests of those affected” (1991, p. 34). He used Kant’s example of a madman in search of a known individual he plans to kill; when confronted, should someone reveal the potential victim’s location, or lie? Hare stated, Most of us, as well as the duty to speak the truth, acknowledge a duty to preserve innocent people from murderers, and here the duties are in conflict. An absolutist will have to resolve the conflict by calling one of the duties absolute and assigning some weaker status to the other. … A utilitarian, by contrast, is likely to say that neither duty is absolute; what we have to do is to decide what would be for the best in the particular case. In this case, it will presumably do most good to all concerned, considering their interests impartially, if I tell a lie. (1991, p. 36) Effectively, Hare (1991) proposed a two-stage model of moral decision making. At the first level, one is intuitive and can apply absolutist standards of right and wrong. At the second level, one must apply utilitarian philosophy, engaging a critical evaluation of utilitarian values to the situation at hand. Recently, research has supported Hare’s (1991) contention that decision making is a two-tiered process. Kahneman (2003), in a review of the literature on judgment and choice, defined two levels of judgments. In the first level (System 1), “judgments and 105

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preferences are called intuitive in everyday language if they come to mind quickly and effortlessly” (Kahneman, 2003, p. 716). More deliberate thought is applied at the second level (System 2), which can modify or override what occurs in System 1. The research supports a two-layered decisional process, and Hare’s intuitive and critical evaluation levels mirror decision levels defined by empirical findings on the process of decision making. In this case, theory built on philosophy coincides with theory built on empirical findings. So when a psychologist is confronted with an ethical dilemma, for example—a suicidal client— following Hare’s two-stage process, he or she first must intuitively apply ethical principles (typically beneficence and nonmaleficence) and may decide to seek hospitalization for the client. But if a conflicting circumstance exists (the autonomy of a client who refuses to be admitted to a hospital), then utilitarian values come into play, and may require identifying an option that values the client’s autonomy, safety, and well-being. The utilitarian will ask, “What is best for all concerned on this case?” And a decision will involve weighing hospitalization and alternative actions to find a suitable course of action so that the needs of all are summed (and a decision in the service of the greatest number is discerned). The client, in this case, may desire to go home, but a decision may be made to send the client home only under the strictest of supervision by a mutually agreed-on party or parties (involved loved ones). In this way, others may rest assured of the client’s safety short of hospitalization, while respecting the client’s autonomy. Hare’s (1991) model provides a good example of a philosophically grounded approach to decision making in which an individual makes a decision. In this case, an individual must assess choices on the basis of utilitarian values when intuition fails or when conflicts arise between agreed-on standards of ethical behavior. Hare’s model is an excellent example of a philosophically grounded model of individual choice.

Quantitative Models of Individual Choice Gutheil, Bursztajn, Brodsky, and Alexander (1991) provided a unique perspective of decision making. 106

Their model was presented in a text on decision making as applied to psychiatry. They designed a model using probability theory as a basis for formulating a decision. They described two quantitative paradigms in science—the mechanistic and the probabilistic paradigms. Historically, quantitative analysis was reflective of defining absolute truths in nature through mechanistic approaches to research. Gutheil et al. (1991), however, defined a shift from mechanistic analysis to analysis of probability, which involves not only the search for truth, but acknowledgment of variables that may influence outcomes, including the variable of the observer (experimenter). They made the case for decision analysis, a means to apply statistical probabilities to a decision tree to define the likelihood of an outcome. They stated, Decision analysis can also be used to build logic and rationality into our intuitive decision making—to educate our intuition about probabilities and about the paths of contingency by which our actions, in combination with chance or “outside” events, lead to outcomes. (Gutheil et al., 1991, p. 41) A decision is structured around a decision tree. They described how a decision “sets in motion a chain of controllable and uncontrollable, predictable and unpredictable, events” (Gutheil et al., 1991, p. 43). Each outcome is connected with what came before and with the choices that follow—effectively building a decision tree or visual representation of the path of the decision. They stated, “A decision tree can be drawn to capture this sequence of chosen actions and chance events” (Gutheil et al., 1991, p. 43), so that actions, uncontrollable events, and outcomes (intended and unintended) can be outlined in terms of contingencies. Probabilities on each branch of the decision tree can be estimated. According to Gutheil et al. (1991), estimating probability is complicated, but one way “is to calculate the relative frequency with which the event in question occurs over a large number of trials in similar circumstances” (p. 46). This is problematic when trying to estimate the outcome of unique events, in which case the authors acknowledge that

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subjective judgment must be used. They stated, “Psychologists have found that subjective probability estimates can be reasonably accurate when the people making them are knowledgeable about what they are estimating as well as experienced in probability estimation” (Gutheil et al., 1991, pp. 46–47). The intention is to quantify, to whatever degree possible, the likelihood of decision outcomes by anticipating and enumerating probable choices along the way. Gutheil et al. (1991) made a compelling argument that even in cases in which measurement is not precise, decision analysis makes decision making “conscious, methodical, and critical,” thereby rendering the decision analysis process beneficial (p. 48). They finalized their arguments by comparing decision analysis to conscious gambling, with the latter being less formal and systematic. Although conscious gambling may be more haphazard than decision analysis, it still provides an opportunity for decision makers to hone their decision-making skills in a stepwise fashion. In the end, they took a position that quantification is valuable in decision making whenever some individual makes a choice. Decision analysis cannot happen outside a principle ethics context. For example, if a psychiatrist is faced with a suicidal patient, decision analysis will show that there is nearly a 100% probability that the patient will survive over night if he or she is hospitalized in a safe room. In this case, decision analysis provides a quantitative means of defining an outcome, but the value of the outcome does not derive from the decision analysis; rather the value of the outcome derives from the ethical principles of beneficence (client well-being) and nonmaleficence (do not harm). So decision analysis based on probability still is guided by a principle ethics and is carried out by an individual decision maker.

Practice-Derived Models of Individual Choice Almost every major textbook on ethics in psychology practice provides a model for decision making. Some of the earliest texts (e.g., Corey, Corey, & Callanan, 2007, now in its 7th edition) provided a stepwise approach that was logical and supported by anecdotal evidence of its usefulness. Typically, these

models describe an initial step of problem identification. Problem identification is followed by another step of information gathering. Consultation with codes, laws, or experts may be a separate step or part of the information-gathering effort. Options are identified; options are weighed. Finally, an option is chosen for action, and the decision is finalized. Table 4.1 provides a comparison of several textbook models of ethical decision making. The table does not produce a line-by-line comparison, but it does provide a visual picture of some of the common textbook models of decision making, and how their steps compare. Also, the table illustrates the overlap across the models (as with many models described in this chapter). For example, the Corey et al. (2007) model shares common steps or stages with other models listed on and off the table. Typically, this overlap occurs in steps defining the problem, fact finding, defining alternative courses of action, and making a choice. In all of the models in Table 4.1, an individual makes a decision after following the steps of the decision process. It is not clear how the decision is finally made. One must conclude that the decision maker applies logical principles to determine the final outcome, and few of the models acknowledge the process of weighting the cognitive, intuitive, or emotional aspects involved in a decision. Few address interpersonal involvement in the process, except as related to expert consultation. Some models do encourage an analysis of probability before a decision is made (e.g., Keith-Spiegel & Koocher, 1985). Overall, these models are more mixed than those that are more purely theoretically derived. One can find principle ethics, a focus on the character of the decision maker, and even acknowledgment of the influence of interpersonal consultation on the final decision. So practice-based models tend to draw on a number of sources and apply concepts across the intellectual movements, even in ways that are contradictory or mutually exclusive at times. Consider the example from the prior section— the suicidal patient. Applying the well-known Corey et al. (2007) model (described in Table 4.1), the problem is first identified. Other issues then are identified, and in this case, the safety of the client is 107

TABLE 4.1 Comparison of Textbook Models of Ethical Decision Making Corey, Corey, and Callanan (2007)

Forester-Miller and

Hass and Malouf

Keith-Spiegel and

Davis (1996)

(2005)

Koocher (1985)

1. Identify the problem

1. Identify the problem

2. Identify potential issues involved

2. Identify 2. Define the legitimate potential issues stakeholders 3. Identify relevant 3. Consult legal and 3. Identify 2. Apply the American standards ethical guidelines participants Counseling affected by the Association Code decision of Ethics 4. Identify courses 4. Evaluate 3. Determine nature of 4. Review the of action and the rights, dilemma relevance of the benefits–risks for responsibilities, existing standard participants and welfare of involved parties 5. Generate alternate 5. Evaluate benefits– 4. Generate potential 5. Evaluate the risks context courses of action ethical dimensions decisions considerations of the issue and specify a primary ethical dimension if possible 6. Enumerate the 6. Consult with peers 6. Consult and 5. Consider potential consequences of and experts review codes of consequences; each decision ethics; review determine course of literature; action consider ethical principles 7. Generate a list of 7. Estimate possible actions probability for outcomes of each decision 8. Do cost–benefit 8. Make the decision 7. Decide the most feasible option analysis and and document the choose based decision process on optimum resolution for greatest number 6. Evaluate selected 9. Evaluate the course of action new course of action for effect on people and unforeseen ethical problems 7. Implement course of 10. Judge whether 8. Implement, action evaluate, and course of document the action can be decision implemented 11. Implement the chosen course of action

3. Review relevant ethical guidelines

4. Know applicable laws and regulations

5. Obtain consultation; consider possible and probable courses of action 6. Consider possible and probable courses of action

7. Enumerate consequences of various decisions. 8. Decide on best course of action

1. Identify the ethical problem

1. Describe the parameters

Sperry (2007) 1. Enhance ethical sensitivity and anticipation 2. Identify the problem

Welfel (2006) 1. Develop ethical sensitivity 2. Identify relevant facts and stakeholders 3. Define central issues in dilemma and available options 4. Examine relevant ethical standards, laws, and regulations 5. Search out ethics scholarship

6. Apply ethical principles to situation

7. Consult with supervisor and respected colleagues 8. Deliberate and decide

9. Inform supervisor and take action

10. Reflect on the experience

Note. Adapted from “Ethical Decision Making Models: A Review of the Literature,” by R. R. Cottone and R. E. Claus, 2000, Journal of Counseling and Development, 78, p. 279. Copyright 2000 by the American Counseling Association. Reprinted with permission. No further reproduction authorized without written permission from the American Counseling Association. 108

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prominent. Ethical principles direct the psychologist to consider the best interest of the client and to prevent harm, which would mean the psychologist should act in some way to prevent suicide. Relevant laws and other standards must be considered. Corey et al. (2007) then encourage the mental health professional to seek consultation to consider possible and probable courses of action. In this case, a psychologist can be directed by colleagues or supervisors to consider the safety of the client first. The consequences or repercussions of possible choices must be defined. If the client hurts him or herself, then the psychologist faces serious repercussions, especially if the psychologist had an opportunity to act in a way to prevent harm. Finally, the psychologist is directed to decide on the best course of action. As can be gleaned from the scenario, individual and social factors come into play, but the decision, in the end, is defined by the individual psychologist who must in some way consider and weigh the pros and cons of the situation and negotiate through consultations on the matter. The model is stepwise, logical, and practical; however, it does not offer guidance on the value associated with following simple standards versus addressing other issues or concerns raised by consultants. For example, how does a psychologist react when a consultant recommends a course of action that is counter to the psychologist’s initial impressions or ethical choice? Viewing the model positively, it is easy to apply. From a negative point of view, it provides little guidance on the weight to be given to consultant opinion, especially when the opinion is contrary to the decision maker’s position. This same criticism is valid for any model that mixes individual decision making with a step involving consultation. In the end, the decision risks are the decision makers to bear, and little explanation is given as to what happens (or what is to happen). This is contrasted by the Gutheil et al. (1991) model, which provided a means for final decision determination through decision analysis and probability; in that case, the decision maker must individually compute the probabilities and follow the statistically most likely positive result. It also contrasts to Hare’s (1991) position, in which the utilitarian must sum what is best for all involved. The Gutheil et al. (1991) model

and the Hare (1991) model, therefore, provide useful examples of how individual decision making is to be conceptualized—it is theoretically grounded and explains the process; other models of individual choice appear to leave the decision maker without a means of weighing options—the decision appears to just happen, perhaps out of individual conscience (which will be explored in the section Is Autonomous Decision Making Problematic?).

Philosophically Grounded Models of Relational Influence The social constructivism movement in psychology may represent the emergence of a body of knowledge that constitutes a full-fledged paradigm of counseling and psychotherapy (Cottone, 2007). Its implications are pervasive for the psychology and the mental health enterprise both theoretically and practically. The practical aspect of the social constructivism movement is clearly exemplified in the “social constructivism model of ethical decision making” (Cottone, 2001, 2004; Cottone & Tarvydas, 2007), which provides a purely philosophically directed model of decision making. The constructivism model is a decision-making model with a clear focus on relationships—there is no individual decision maker— decision making occurs outside of one’s head (so to speak) and in the social matrix. Building on the works of a cognitive biologist (Maturana, 1978, 1980, 1988; Maturana & Varela, 1980) and expanding the ideas of Gergen’s (1985) constructionism movement in modern psychology, I defined an extreme relational framework for decision making. As Gergen (1991) stated, “When individuals declare right and wrong in a given situation they are only acting as local representatives for larger relationships in which they are enmeshed. Their relationships speak through them” (pp. 168–169). Likewise, I defined decision making as a process of addressing conflicts between people as relationships speak through them—“conflicts of consensualities”—where a consensuality is a socially constructed truth. Consensualities generally are considered absolute truths within the confines of the relationship system within which the truth is distinguished and defined; but consensualities may appear as relative to outsiders who view other alternatives as equally valid. As an example, the 109

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acceptability of drugs within the drug culture may be viewed as a truth to those in the culture, but to outsiders, drug use may be viewed as unacceptable. Professional ethical conflicts derive from conflicting consensualities, where at least two people disagree on the nature, harm, or intent of an act of a mental health professional. The social constructivism model involves three interpersonal processes: consensualizing (the process of acting with others according to some socially agreed on definition), negotiating (discussing and debating through disagreements while making distinctions and attempting to reconcile differences), and arbitrating (the process whereby negotiators in a stalemate seek the judgment of a consensually acceptable individual to resolve a conflict). All three processes are social; no individual (internal) decision making is involved. The decision is processed in the interaction with stakeholders and others who potentially can contribute to an outcome. The model is represented graphically in Figure 4.1. Individuals involved in the decisionmaking process obtain information from involved parties, assess the nature of relationships (are they conflicting or adversarial?), and consult valued colleagues and expert opinion (including ethical and legal standards). The decision makers then attempt to reach a consensus about what should happen or what occurred. If a difference of opinion exists, then continued negotiating and ultimately arbitrating are necessary. The model also allows for a period of interactive reflection, during which time stakeholders define whether they can modify their stance and reenter negotiation to avoid arbitration. In the case of a suicidal patient, the psychologist following the social constructivism model would first address the issue of suicide with the patient. Assuming that the client is not incapacitated, and using knowledge of suicidal factors, the psychologist would evaluate and address the risk factors with the client. The client would either agree that the factors were or not. The psychologist might ask the patient who the patient believes would be most negatively affected by the patient’s suicide. The psychologist might also explore the patient’s thoughts on who might be viewed as benefiting from the suicide. The intent of questioning is to clearly define 110

all of the relationships of significance from the perspective of the patient. The psychologist also might explain the process of hospitalization and explore the implications of hospitalizations for the client’s current and future relationships. In cases in which the opinions of others are valued by the client, especially from a multicultural perspective, consultation would occur (as legally permitted) with other stakeholders in the decision about how to address the suicidal intent. Then, using his or her training and past supervision as a guide, the psychologist would consult other professionals about the circumstance. He or she might consult a supervisor, a hospital emergency physician, or a colleague for such matters. Discussion of options or even negotiation with stakeholders and involved professionals may occur while developing an agreement on the best course of action. Their counsel would be valuable in determining whether some action should be taken. The psychologist in this social context will agree or disagree with the emerging or historical (learned in prior circumstances) consensualities, which are viewed as socially defined truths. The psychologist might facilitate hospitalization of the client, or perhaps he or she would act otherwise to ensure safety consistent with ethical imperatives, social factors, cultural standards, legal standards, and best practice in the field. What appears to be a decision of an individual actually is an action consistent with an operative consensus (currently or historically situated) that looks like an individual choice. If there is impasse, then arbitration likely will occur in the courts (e.g., involuntary hospitalization), where a judge or jury will decide the operative truth. The legal system is viewed as the final arbiter (as both clients and counselors operate within the constraints of a sociolegal consensus). On matters that are not adversarial, the social constructivism model encourages agreements between parties on problem arbitration in advance. For example, a psychologist-in-training and a supervisor ideally would agree that unresolved ethical or clinical disagreements would be presented to a consulting psychologist (or ethicist) and that both parties would defer to the judgment of the consultant. Whereas arbitration may be defined legally by the contract of services between a psychologist and a

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Obtain Information From Those Involved

Assess the Nature of Consult Relationships— Conflicting Opinions? Adversarial?

Consult Valued Colleagues and Expert Opinion (Including Ethical Standards)

Negotiate (if Necessary)

Consensualize

Interactive Reflection (When Consensualizing Fails)

Arbitrate (if Necessary)

FIGURE 4.1. The interactive process of socially constructing an outcome to an ethical dilemma. From “A Social Constructivism Model of Ethical Decision Making in Counseling,” by R. R. Cottone, 2001, Journal of Counseling and Development, 79, p. 43. Copyright 2001 by the American Counseling Association. Reprinted with permission. No further reproduction authorized without written permission from the American Counseling Association.

client, professional relationships may establish alternative means of arbitration (short of legal recourse) in their daily practices. The legal system is viewed as a consensual system in which judges apply case law and juries socially construct a decision within rules of law. The social constructivism model of ethical decision making is an example of a purely relational decision-making process that is derived solely from

theory or philosophy—the social constructivism movement in mental health services. Decisions are removed from the individual decision maker’s head and instead are defined within the social interaction that ensues around a dilemma. The decision is in the social matrix. The psychologist, according to this model, acts in accord with an operative consensus and not as an isolated individual decision maker. 111

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Mixed Models of Individual and Relational Influence Probably the most comprehensive model that formally addresses both psychological and social processes in decision making is the Tarvydas integrative model of ethical decision making (Cottone & Tarvydas, 2007; Tarvydas & Cottone, 1991). Tarvydas’s model incorporates the best of theory from a number of original sources. She draws on the works of Hare (1981), Rest (1984), Kitchener (1984), and Beauchamp and Childress (2009) representing principle ethics. She included the concept of virtue ethics (Meara et al., 1996). She also carefully built a contextual component in her model, so that relational influences are addressed. And she added a reflective component, consistent with recommendations of Hill et al. (1995) and Welfel (1998), so that selecting the best ethical course of action is not the final step in the decision process. Tarvydas’s model is a comprehensive model of decision making. The model is understandably complex, but, at the same time, it uses the best of theory to the point of its development. The Tarvydas model is a four-stage model: Stage 1, interpreting the situation through awareness and fact finding; Stage 2, formulating an ethical decision; Stage 3, selecting an action by weighing nonmoral values, personal blind spots, or prejudices; and Stage 4, planning and executing the selected course of action. Considering the suicidal patient and applying the Tarvydas model, one can see the model’s ability to address multiple layers of theory and context. The first two stages are much like any logical decisionmaking process in which an individual makes a choice. One is sensitive and aware of the dilemma, defines involved parties (stakeholders), goes through a process of fact finding (all in Stage 1). In Stage 2, one reviews the data; applies relevant codes, laws, and institutional policies; and generates possible courses of action, considering the consequences of each. Consultation with supervisors or other knowledgeable professionals occurs in Stage 2, and then the best course of action is selected. In the case of the suicidal client, the best course of action may be to act to prevent suicide by facilitating hospitalization. However, the Tarvydas model does not stop 112

there. There are two more stages. In Stage 3, there is reconsideration of the choice around context and nonmoral or other values are considered that might in some way blind the psychologist from the right choice. Maybe hospitalization is just an easy way to unload one’s responsibility to a hospital staff physician (a psychology blind spot). Perhaps hospitalization may engage the client in a medical model of treatment when the problems leading to suicidal threat were more relational than psychological. Perhaps hospitalization may lead to stigmatization that in the end will brand the client negatively and cause problems within the social network within which the client operates. It might be harder for the psychologist to come up with another option, but in this case, it might be justified. Stage 3, then, might lead to a decision to seek some other means of safety, short of hospitalization. That may be the preferred course of action. The final stage (Stage 4) of the Tarvydas model requires definition of the exact steps to be taken to implement the decision, possible barriers to execution of the decision, and possible counter measures if something prevents the preferred option. Finally, the decision is carried out and evaluated. At specific stages in the Tarvydas model, a number of components reflect the contributions of theorists at the foundation of her model. Her model skillfully addresses context, involves a degree of collaboration, and encourages reflection before a final determination. It engages principle ethics, but it also recognizes that the decision maker’s intuition and character may be crucial factors in the decision. Relationship factors are weighed heavily, and her model is truly integrative. Although it is vulnerable to criticism on the basis of its merging what may be viewed as mutually exclusive philosophies (relational versus individual), her model will stand as an historical marker of the status of the field at the time of its development. A BRIEF SUMMARY OF MODELS APPLIED TO SPECIFIC ETHICAL DILEMMAS OR POPULATIONS The complexity of professional mental health practice is reflected in the number of publications that

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present guidelines or models that apply to specialized ethical dilemmas. These publications are found not only in psychology journals, but also in social work, marriage and family therapy, behavioral science, and counseling journals. A number of publications address specific challenges when serving clients who have faced such issues as (a) domestic violence or battered women (e.g., Edwards, Merrill, Desai, & McNamara, 2008; Koenig, Rinfrette, & Lutz, 2006), (b) end-of-life care (e.g., Werth, 2002), (c) geriatric neuropsychology (e.g., Martin & Bush, 2008), and (d) HIV and AIDS. There also have been models or guidelines developed for serving clients within specific contexts, such as (a) religious communities (e.g., Hill & Mamalakis, 2001), (b) managed care (e.g., Belar, 2000; Tjelveit, 2000; Younggren, 2000), (c) child clinical psychology (e.g., Mannheim et al., 2002), (d) outpatient care (Truscott, Evans, & Mansell, 1995), and (e) play therapy (Seymour & Rubin, 2006). And there are recommendations for psychologists who counsel specific populations of clients, such as Asian Americans (e.g., Littleford, 2007) or those vulnerable to exploitive dual relationships (Gottlieb, 1993). These are just a few of any number of publications that address specific ethical challenges in mental health practice. Most publications addressing ethically challenging specialized circumstances direct mental health professionals on matters that are specific to the issue at hand; few actually provide a formal model of decision making. Some examples of publications that formalize a decision process are Erickson (1990); Chenneville (2000); Costa and Altekruse (1994); Garfat and Ricks (1995); Gottlieb (1993); Knapp, Gottlieb, Berman, and Handelsman (2007); Truscott et al. (1995); and Seymour and Rubin (2006). Two publications address HIV and provide stepwise decisional processes. Chenneville (2000) specifically addressed confidentiality and the duty to protect, and provides three steps in a decision-making model: (a) determine whether disclosure is warranted, (b) refer to professional ethical guidelines, and (c) refer to state guidelines. Erickson (1990) provided a set of guidelines for working with “irresponsible AIDS” clients, those who are involved in behavior that could potentially lead to spread of

HIV. She provided three levels of action that will lead to a logical decision. The first level involves engaging the client in services to help in recognizing the unacceptable behavior and addressing the denial process. The second level involves physician contact and advice to encourage appropriate behavior. The third level involves contact with agencies to inform authorities of the behavior of the resistant client. Costa and Altekruse (1994) provide a list of duty-towarn guidelines to direct mental health professionals addressing clients who have made a threat. The guidelines include preventative measures and specific steps to be taken once a threat has been made. If one follows both the preventative measures and the steps following a threat, the act of warning an endangered party is a justifiable outcome. Garfat and Ricks (1995) described a self-driven model of decision making when working in child and youth care. The decision is self-driven and involves “critical and reflective analysis” (1995, p. 395). Like many more general individual-focused models, the decision somehow happens in the logical part of the self, as data are weighed in some way and a defensible outcome emerges. The intention is to engage an “aware and responsible self” in ethical practice, as opposed to practice moderated or “driven by external variables” (Garfat & Ricks, 1995, p. 397). Another example is the P3 model presented by Seymour and Rubin (2006) as related to ethical play therapy. The P3 model incorporates “principles, principals, and process (P3)” (p. 101). The principles referred to in the article are those that were addressed by Kitchener (1984), with the addition of veracity or truthfulness. The principals are essentially the decisional stakeholders, and include the client, counselor, collaterals, and community (“the four Cs”); these individuals’ voices are heard in the process (the third P), which is an inclusive collaborative process of recursive interaction. Knapp et al. (2007) provided a structured format for addressing conflicts between laws and ethical standards. Steps in the decision-making process follow questions that must be asked, such as “What does the law require?” or “What are your ethical obligations?” After answering a set of questions, the psychologist must discern whether either the law or ethical standard must be breached, that is, that the 113

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conflict cannot be resolved. In these cases, the authors recommended a set of steps to take if a decision is made not to obey the law. They also provide a guideline for minimizing harm resulting from offending ethical values. Truscott et al. (1995) provided four decisional cells (two levels of therapeutic alliance versus two levels of violence risk) to address dangerous clients in outpatient settings. Assessments are made to place clients in the scheme of four decisional cells. Finally, Gottlieb (1993) provided a three-dimensional model of decision making to avoid exploitive dual relationships. The three dimensions are power, duration of the relationship, and clarity of termination. A stepwise analysis is then carried out, much as with a decision tree, so that the psychologist has an answer to concerns on any one dimension. In all of these publications, the authors provide the reader with specific guidelines or steps to take when confronted with the respective ethical dilemma. WILL THE APPLICATION OF A DECISION-MAKING MODEL ENSURE AN ETHICAL ACTION? With ethics education of psychologists and with the attention on ethical issues and ethical decision making in the literature, one would think that using an ethical decision-making model automatically would lead to an ethical decision, and a defensible decision as well. This may be true in many cases, but not in all cases. It certainly is likely that professional psychologists will follow decision-making processes with action, especially in cases where (a) the well-being of clients is in danger, or (b) there is serious professional or legal repercussion for not addressing a dilemma. But research has shown that some intuitive (ethical) judgments may be overridden or even blocked under certain circumstances (Kahneman, 2003). And what about blind spots, those dilemmas prone to bias or that may be confused by personal feelings (Cottone & Tarvydas, 2007)? In those cases, it becomes a question of ethical willingness and resoluteness (cf. Bernard & Jara, 1986; Bernard, Murphy, & Little, 1987; Betan & Stanton, 1999). Typically, publications that address ethical willingness document empirically that students of 114

psychology or professional practitioners are unwilling in certain cases to take ethical action. Scenarios presented in such research typically involve a decision to report a peer who was behaving unethically. In as many of 50% of responses, participants admit that they would “do less than what they realized they should do” (Bernard et al., 1987, p. 490). In effect, the psychologists (or trainees) who responded to these surveys were blinded by personal factors. Betan and Stanton (1999) stated, Ethical decision making and willingness are not simply a matter of implementing principles. We suggest that psychologists are making inadequate decisions about ethical dilemmas in part because they are not well attuned to the influential role of emotions, values, and contextual concerns in ethical discourse. Consequently, anxiety or other concerns can impede the ability to implement the ethical course of action. By contrast, those who are more aware of personal emotions and values may be better able and willing to intervene ethically. Awareness of competing factors can enable one to override barriers, as well as to integrate emotional sensitivity with rational analysis of a dilemma, in order to act ethically and protect the welfare of the affected parties. (p. 299) So knowledge, in and of itself, is not enough. Motivational factors enter the equation, and emotion and personal values play a role. In effect, research is supporting the virtue ethics and relational ethics movements, as studies are showing that the decision maker is responsible to address personal blind spots (often relationship-based) to ensure that nothing prevents the just application of ethical standards. It speaks to the character of the decision maker and the influence of relational allegiances. Detert, Trevino, and Sweitzer (2008) were able to show that some individuals are capable of moral disengagement (a term originally defined by Bandura, 1999), which means those individuals are able “to deactivate moral self-regulatory processes” and in cases in which they make unethical decisions, they

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are able to do so “without apparent guilt or selfcensure” (Detert et al., 2008, p. 374). Personal factors are associated with moral disengagement, and the authors found that moral disengagement predicts unethical decision making. So there appears to be a subset of professional psychologists who are capable of unethical action on the basis of personal factors or some weakness of character—an issue that must be taken into account when admitting and training individuals in professional psychology. The profession must not be blind itself. It must assume that there will be professional psychologists, who, for whatever reason, will choose to be unethical, or will not choose to be ethical, no matter how much training on ethical matters they receive. IS AUTONOMOUS DECISION MAKING PROBLEMATIC? When decisions are left to an individual autonomous decision maker without specific guidance as to what is suppose to happen in the decision maker’s head, then the decision appears to rely on subjective factors of individual conscience. In such cases, there is always the concern that the psychologist will lack a conscience. Nonrelational approaches to decision making have traditionally relied on the willingness and resoluteness (Betan & Stanton, 1999) of the mental health professional to do the right thing. This is an assumption of questionable validity because it appears that, in certain circumstances, psychologists can have blind spots that will prevent or inhibit fulfillment of ethical responsibility (as discussed in “Will the Application of a Decision-Making Model Ensure an Ethical Action?”). Typically, the ethical dilemma associated with vulnerability involves allegiances where acting ethically is at the potential expense of an established relationship. Two good reasons exists to have and to use a formal ethical decision-making model. First, the obvious reason is that a model will guide a practitioner through an ethical dilemma. In effect, models are guides that help to ensure ethical practice when professionals are faced with a quandary. A second reason for having a formal decision-making model relates to adjudication. If a psychologist’s ethics are challenged, and the psychologist must defend his or

her choices and consequent actions, documentation of the use of a formal decision-making process will likely serve the psychologist well. Defense of a decision will always be easier when a formal and recognized process has been utilized. If one is able to defend one’s decisions beyond intuition, then it is less likely one can be found negligent or guilty of malpractice. The problem for adjudicators is the possibility that the psychologist charged with unethical conduct claims to have operated on individual conscience without evidence of consultation, thereby relegating the decision process nonobjective or immune to corroboration. At face value, it seems likely that a psychologist would choose to act on an ethical dilemma if others have been consulted during the process (Betan & Stanton, 1999). If there has been acceptable and ethical consultation with colleagues or ethics experts on a case, it is likely that sharing the dilemma will help to ensure follow-through on a decision. No guarantee of ethical action in such a situation exists, and there is always the slight possibility of conspiracy (where the psychologist and consultants together decide to act unethically), but the likelihood of decisive ethical action would seem enhanced by collaboration. Research is lacking in this regard. Will a psychologist more likely follow through with a report of a colleague’s questionable practice if a decision-making model requires consultation with other colleagues as a formal part of the process (versus a model that does not require interaction)? This is an area that warrants further study and may be significant to the training on and development and implementation of future models of ethical decision making. Psychologists have traditionally viewed autonomy as a valuable ethical imperative (an ethical principle); but in the area of ethical decision making of professional psychologists, autonomous decision making may allow for secrecy, inaction, or noncompliance with ethical directives. THE ETHICAL DECISION MAKER’S DECISION-MAKING DILEMMA Beyond the issue of autonomy, the profession of psychology must also be alert to another issue that 115

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may compromise easy application of standards. Professional psychology has arrived at a place at which a psychologist, confronted with an ethical dilemma, must not only address the dilemma, but also make a decision as to which ethical decision making model to apply. For Canadian psychologists, the CPA’s Canadian Code of Ethics for Psychologists (CPA, 2000) provides a recommended decision-making model. The CPA model is clearly a model of individual choice— providing logical steps for applying the CPA ethical standards. It is not attuned to the influence of relational or multicultural factors (group influence is given lip service) or to the relative weight applied to professional consultation (which is addressed only as a postscript to the model). Although there are weaknesses in the model, at least Canadian psychologists know what is expected of them when applying standards from their code of ethics. Members of the APA comparatively have much more flexibility in applying decision-making models to an ethical dilemma, for better or for worse. It is ironic that the profession of psychology, which prides itself on its scientific foundation, has little in the way of scientific data to offer the practitioner attempting to discern which decision-making model to use. Only a few studies have empirically assessed ethical decision-making models (e.g., Dinger, 1997; Garcia, McGuire-Kuletz, Froehlich & Dave, 2008; Garcia, Winston, Borzuchowska & McGuire-Kuletz, 2004). The number of published studies is surprisingly small; this may be true, in part, because ethical decision-making processes have derived their meaning from the study of ethics, which is a branch of philosophy. It is easy to see that the nature of decision-making models is aligned with the study of moral philosophy and the literature of moral choice. Theories of philosophy underpin some of the best known models (e.g., utilitarianism). The application of logic (another branch of philosophy) also pervades existing decisionmaking models. There is, therefore, more of a philosophical than empirical basis for decisionmaking model development. Decision-making models, only recently and by means of virtue ethics and the relational movements, are breaking from the classic philosophical mode. The newer models offer 116

distinctions that may serve researchers well, as they begin to define real and measurable differences in the processes involved in decision making. For example, Cottone’s (2001) social constructivism model provides an opportunity to measure observable interpersonal processes in the decision process, in contrast to the isolated weighing of options (based on some criterion) of the typical model of individual choice. In effect, the decision-making knowledge base has expanded to the degree that empirical studies may prove fruitful. A question that logically flows from this analysis is, “Does it really matter what model is chosen?” It is fair to ask, “Aren’t most decision-making models going to lead to the same conclusions?” The answer is that it does matter because decisions may be quite different depending on the model. For instance, a model that operates on the extreme of one of the intellectual movements of psychology decision making (principle, virtue, relational) or that takes a purist philosophical position (utilitarianism, social constructivism) likely will produce outcomes that are different and perhaps unique to the model. Those models that are less extreme or that combine elements of differing philosophies or movements may produce less distinguishable outcomes. Take, for example, the case of an adult client being counseled about adjustment to disability issues who reveals he is participating in sexual online communications with individuals identified as underage children. Assume also that this person is operating in a state or province where electronic communications of sexual content with individuals identified as under age is not a crime—that the communications must be followed by action to engage the children in personal contact for there to be criminal activity. The law in this case is clear—the client’s actions are not illegal, and the client communicates no intent to make personal contact with any identified child contacted electronically. A psychologist might, regardless of the law, find the client’s actions offensive and abhorrent. The psychologist might use a utilitarian model of decision making and conclude that the greatest number are served (the children) if the client stops such action and a firm request is made to the client in that regard. The client adamantly refuses to stop his electronic contact with children

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on sexual matters, states firmly that his purpose for seeking counseling has nothing to do with his electronic contact with children, and asserts he is not doing anything illegal and that it is his choice to continue. The psychologist then may refuse to counsel the client unless the client ceases such communication. The psychologist’s intent, by taking a strong stand, would be to stop the client’s activity. But since the client continues to communicate no willingness to stop or intention of stopping, the psychologist may decide to withdraw services on moral grounds. This decision would be defensible on the basis of the actions of the client, the values of the psychologist, and the decision-making model employed. Because decision making is an individual choice based on personally defined standards, both the counselor and the client are justified in their choices. Choice, in this case, is based on the individual conscience of the decision maker. By way of contrast, a psychologist using a more relational model of decision making, such as Betan’s hermeneutic model, might act differently in a similar circumstance. Even though the client’s actions are not illegal, the psychologist may find the behavior immoral, offensive, or abhorrent. But considering the relational ramifications of the psychologist’s actions, the psychologist might consider the consequences if the therapeutic relationship is terminated on moral grounds—will society be benefited by an untreated Internet abuser, even though the purpose of counseling is unrelated or tangential to the moral issue? The psychologist might ask, “Could the influence of the psychologist–client therapeutic relationship potentially result in a remedy over time so that the psychologist’s values are not compromised and the client’s behaviors may be affected?” In this case, relationship factors would prevail, and a decision to continue with the client for a specified time (even though a number of children might continue to be contacted in the interim) to attempt to remedy the behavior or to replace it with harmless behavior would be the preferred course of action. An underlying philosophy directs such action, because the psychologist is operating from an assumption that the client’s choice is not based on character or individual conscience; rather, it is the result of the relational context within which the client operates, which

would include the therapeutic context. So the psychologist’s actions would be quite different. In the first case, using a point-in-time utilitarian model of individual choice, refusing to continue counseling on moral grounds is defensible because the psychologist first acted firmly to stop the unacceptable and morally reprehensible behavior. In the second case, the relationally oriented decision maker might continue counseling justifiably (at least for a short while) in hopes of influencing the client therapeutically at the risk of impingement of strongly held personal values. Decision-making models do make a difference in defining outcomes, especially if competing models are grounded in unique and distinct philosophies and applied in a purist fashion. Either model or outcome may be viewed as right or wrong. Both are laudable, and both are vulnerable to criticism. What is important, however, is the fact that the psychologist used a model, was thoughtful in application of the model, and followed the model to a defensible outcome; this is evidence of an educated professional competently applying theory to practice. It is recommended that professional psychologists consider their own theoretical and philosophical biases as they consider which model to use. For those with a philosophical bent, for example, the choice of a model grounded in philosophy may serve them well, such as Hare’s (1991) or Kitchener’s (1984) models. For those with interest in relational theory, Betan’s (1997) or Cottone’s (2001) model may be of interest. The culturally sensitive models (e.g., Garcia et al., 2003; Knapp & VandeCreek, 2007) likely will appeal to those who value the identification and study of multicultural traditions as factors in decision making. For those who want to incorporate the best of known theory, an integrative model will be attractive (e.g., Cottone & Tarvydas, 2007, model). And for those just interested in the application of logic to solve a problem, the use of stepwise models with anecdotal support is logical, whether it is a comprehensive model (as presented in textbooks) or a model for a specialized ethical circumstance. Regardless of which approach is chosen, the profession has advanced to the degree that a psychologist who makes a crucial ethical decision without the use of a model will appear naïve, uneducated, or potentially incompetent. When faced 117

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with defending a decision, if a psychologist can show (especially in a way that can be corroborated) that a formal decision-making approach was taken, it is likely that the decision will be viewed as thoughtful, grounded, and reasonable. ADVANCED ANALYSIS OF PREMISES The identification of major intellectual movements in decision making in psychology has a benefit in addition to delineation of a classification framework—the cross-evaluation of the tenets underlying each movement. For example, virtue ethics provides a framework for analyzing both principle ethics and relational ethics because, in the end, a professional psychologist will act (or fail to act) when confronted with an ethical dilemma. Virtue ethics provides a unique perspective—one that focuses on the traits of the decision maker rather than the nature of the dilemma. Virtue ethics also requires an analysis of social factors that may affect the willingness and resoluteness of a psychologist to act, which places a decision within a relational context, much like the hermeneutic model of Betan (1997). Likewise, principle ethics will challenge the relational theorist to concretize the interpersonal processes that lead to an action. Just as individual decision making may be criticized because, in many cases, the decision making disappears into the decision maker’s head, the process of consensualizing may, at its worst, appear to be a simple majority vote of stakeholders. Decision making is a complex process, and the identification of the three intellectual movements and the theme of multicultural sensitivity helps to place models in historical, philosophical, and theoretical contexts, providing a new framework for core analysis and critique of existing models. A good example of how identification of the intellectual movements in psychology ethical decision making leads to advanced analysis would be a relational critique of principle ethics. As a relational theorist, my critique here is both convenient and defensive, as I clearly and comfortably operate from a relational bias. Principle ethics fits nicely within the mold of a psychology of an individual deliberator. It identifies the psychologist as a decision agent, one that (to the extreme) can analyze a decision, and on 118

his or her own, discern a course of action. A purist relational theorist would argue that such a scenario (the independent decision maker) is not theoretically possible and must be undergirded by social factors. Such a criticism has credence when one critically analyzes, for example, the process of applying ethical principles to a dilemma. For example, Beauchamp and Childress (2009) relied heavily on the work of Ross (1998), as Ross challenged utilitarian decision-making processes in favor of intuitive induction (Beauchamp & Childress, 2009, p. 362). But an examination of Ross’s position reveals that his arguments are grounded on something close to a consensual ethic. Ross (1998) stated, The existing body of moral convictions of the best people is the cumulative product of the moral reflection of many generations, which has developed an extremely delicate power of appreciation of moral distinctions; and this the theorist cannot afford to treat with anything other than the greatest respect. The verdicts of the moral consciousness of the best people are the foundation on which he must build; though he must first compare them with one another and eliminate any contradictions they may contain. (p. 285) So just thinking about a dilemma, as Ross would recommend, does not happen outside a socially established framework, which is exactly what a social constructivist would argue. Identification of the intellectual movements in psychology decision making allows for a high level cross-evaluation of precepts and assumptions and provides an enriched understanding of models. It becomes obvious, no matter where a psychologist begins the decision process, decision making is complex and may be viewed from a number of perspectives. Those perspectives may be mutually exclusive. They may intersect. Or one perspective may supersede or reframe the others. The debate is open. CONCLUSION A number of ethics decision-making models apply to the practice of psychology. There is also enough

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variability among models to begin to classify them according to several movements in the field (principle ethics, virtue ethics, and relational ethics and the theme of multicultural sensitivity) and to analyze them on theoretical, philosophical, and practical grounds. When it comes to training psychologists or acculturating them (Handelsman et al., 2005), it is becoming important not only to address ethical issues, values, and dilemmas, but also to address formal models for decision making and the willingness and resoluteness of the psychologist to make a decision. As ethical decision-making models become more prevalent and sophisticated, it also will be important for psychologists to study and to assess them. This may be especially important on the issue of consultation and the importance of sharing ethical dilemmas with others as a means to ensure that the decision-making process may be corroborated. Psychology has advanced to a degree at which competitive models of decision making exist, presenting a quandary (in addition to an ethical dilemma itself) as professionals may be faced with an additional decision as to which model to apply. The dearth of empirical studies on ethical decision-making models and processes in psychology is alarming, and hopefully this chapter will be a catalyst for the application, study, and research of ethical decision making in psychology, especially related to cross-evaluation of models from the perspective of different intellectual movements in the field.

ethical principles. Professional Psychology: Research and Practice, 17, 313–315. doi:10.1037/0735-7028.17.4.313 Bernard, J. L., Murphy, M., & Little, M. (1987). The failure of clinical psychologists to apply understood ethical principles. Professional Psychology: Research and Practice, 18, 489–491. doi:10.1037/0735-7028. 18.5.489 Betan, E. J. (1997). Toward a hermeneutic model of ethical decision-making in clinical practice. Ethics and Behavior, 7, 347–365. doi:10.1207/ s15327019eb0704_6 Betan, E. J., & Stanton, A. L. (1999). Fostering ethical willingness: Integrating emotional and contextual awareness with rational analysis. Professional Psychology: Research and Practice, 30, 295–301. doi:10.1037/0735-7028.30.3.295 Canadian Psychological Association. (2000). Canadian code of ethics for psychologists (3rd ed.). Ottawa, Ontario, Canada: Author. Chenneville, T. (2000). HIV, confidentiality, and duty to protect: A decision-making model. Professional Psychology: Research and Practice, 31, 661–670. doi:10.1037/0735-7028.31.6.661 Corey, G., Corey, M. S., & Callanan, P. (2007). Issues and ethics in the helping professions (7th ed.). Pacific Grove, CA: Brooks/Cole. Costa, L., & Altekruse, M. (1994). Duty-to-warn guidelines for mental health counselors. Journal of Counseling and Development, 72, 346–350. Cottone, R. R. (2001). A social constructivism model of ethical decision-making in counseling. Journal of Counseling and Development, 79, 39–45.

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CHAPTER 5

INSTITUTIONAL ETHICAL CONFLICTS WITH ILLUSTRATIONS FROM POLICE AND MILITARY PSYCHOLOGY Carrie H. Kennedy

Following the second revision of the “Ethical Standards of Psychologists” (American Psychological Association [APA], 1959) Wiskoff (1960) presented 501 psychologists with 26 vignettes that described a situation in which the psychologist was presented with a divided loyalty (hereinafter referred to also as dual loyalty, dual agency, or mixed agency) conflict. In each conflict, the psychologist had to choose between protecting the confidentiality of the client or acting for the best interests of society. The results revealed that there was no consensus among psychologists regarding what to do in these situations, with the following percentage of psychologists noting they would disclose information in these circumstances: 64% homicidality, 45% treason, and 42% suicidality. Since 1960, imminent danger has been better defined. Legal precedents have been set (e.g., Tarasoff v. Regents of the University of California et al., 1976; see also Walcott, Cerundolo, & Beck, 2001) and the mandated implementation of ethics training in graduate schools, as well as continuing education for psychology state licensure requirements, have clarified many of these issues. Most psychologists now understand and generally agree about what to do in many of these dual loyalty circumstances. Newer areas of psychological practice, however, have created a situation in which we are asking similar questions in the context of evolving roles within national security settings. In addition to the growing consultative and evaluative roles of psychologists in a variety of government

agencies, the current wartime stance of this nation has resulted in an increase in mixed agency conflicts between institutional demands and professional ethics for psychologists working in or consulting to those agencies. Mixed agency conflicts refer to situations in which there may be competing loyalties or conflicting interests between an individual, an agency, and society. These competing demands arise from the need to protect individuals, while at the same time protect the general public from harm. Although these demands may be experienced in any professional setting (e.g., school psychology settings, mental health clinics, and forensic practice), some settings lend themselves to these types of conflicts more often than others. This chapter addresses these evolving subfields of psychology in which conflicts between organizational needs are highly likely to conflict with professional ethics, namely, police and military psychology. Although many ethical standards outlined in the current Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) are pertinent to these psychologists, this chapter focuses primarily on those that speak directly to institutional conflicts, namely, Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, and Standard 1.03, Conflicts Between Ethics and Organizational Demands (APA, 2010). In any such discussion involving mixed agency and competing loyalties in national security environments, other ethical standards also play a large

The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of the Navy, Department of Defense, or the U.S. Government. DOI: 10.1037/13271-005 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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role, particularly Standard 2.01, Boundaries of Competence; Standard 3.05, Multiple Relationships; Standard 3.10, Informed Consent; Standard 3.11, Psychological Services Delivered to or Through Organizations; and Standard 4.01, Maintaining Confidentiality (see Chapter 13 of this volume for additional discussion of confidentiality). These standards are discussed as applicable throughout the chapter. In addition, other standards pertinent to specific descriptive examples are discussed. To illustrate the dilemmas and decision making that occur in these environments, examples are provided for each subspecialty. Hostage and crisis negotiations are presented to demonstrate some of the dilemmas that arise in police psychology, and the evaluation of service members for return to duty in a combat zone, as well as issues revolving around following lawful and unlawful orders, are analyzed in the section on military psychology. Finally, to present the nature of both of these subspecialties in a unique and ethically charged environment, the ethical challenges presented to psychologists in the detention facility at Guantanamo Bay are illustrated as a final, integrated case example. ETHICAL STANDARDS PERTAINING TO INSTITUTIONAL CONFLICTS It is notable that a strict compliance with the Ethics Code may result in legal difficulties and that the opposite also may be true. Compliance with laws, other legal authorities, and employers may place one in violation of the Ethics Code. Working with these competing, yet overarching, rule sets can get complicated even for the experienced psychologist. Although this chapter’s focus is on these types of conflicts in police and military areas of practice, it is worthwhile to briefly describe these conflicts in other settings. Conflicts between ethics and law or organizational demands are described in psychotherapy, school, industrial and organizational settings, forensic settings, and correctional institutions. Psychotherapists and counselors describe conflicts related to advertising, confidentiality, and patient– client access to medical records as primary areas in which conflicts may arise between professional ethics and law or organizational demands (Mappes, 124

Robb, & Engels, 1985). Newer conflicts have arisen due to such developments as managed health care and other financial limiting factors placed on patients by agencies. Managed care, for example, has created a situation in which psychologists may experience a loss of clinical decision-making rights and autonomy because of the control these organizations have over decisions related to the type and length of mental health care permitted, leading to significant conflicts between psychology ethics and organizational demands (e.g., see Bryceland & Stam, 2005; Murphy, DeBernardo, & Shoemaker, 1998). School psychologists describe significant conflicts between the Ethics Code and school administration demands, often revolving around the decision regarding whether an individual child qualifies for special educational services and, if so, what services are to be provided (Jacob-Timm, 1999; issues related to school psychology are discussed in more detail in Volume 2, Chapter 7, this handbook). Pope and Vetter (1992) surveyed the APA membership and found that 2% of respondents encountered this same type of ethical dilemma in the school system and that requests and demands by the school system often were driven by cost. In this same study, 1% of the respondents noted pressure by management in industrial or organizational settings to break the confidentiality of employees or survey respondents. Other issues in industrial and organizational settings include pressure to engage in unethical research practices (e.g., McDaniel, Solomon, & Malone, 2006). Correctional facilities struggle with issues about whether the primary focus should be on mental health care or on security issues for patient–inmates (Weinberger & Sreenivasan, 1994). And, over the years, as forensic psychology has evolved as a specialty, conflicts between professional ethics and law have expanded accordingly (a detailed discussion can be found in Volume 2, Chapter 6, this handbook). Before any discussion of conflicts between the APA Ethics Code and laws, regulations, and organizational demands in government agencies, the two most applicable standards must be described. In its original 2002 iteration, Ethical Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority stated that if psychologists’ ethical responsibilities conflict with law,

Ethical Conflicts in Police and Military Psychology

regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict (APA, 2002). If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority. This standard was meant to provide psychologists with potential avenues of recourse when conflicts arose between the Ethics Code and the law. According to Kennedy, Johnson, Jana, and Leak (2009): Specifically, forensic psychologists who were ordered by a judge or court to release records, perhaps in violation of the Ethics Code’s standard on confidentiality—were given the option of following the law, even when the law appears to conflict with the Code. (p. 9) In essence, it instructed the psychologist to try to resolve the matter by first bringing the Ethics Code to the notice of the authority. It indirectly indicates that the psychologist should educate pertinent individuals about the nature of the conflict. The second step is to problem solve to find a best interests solution (see Johnson & Wilson, 1993) that meets the needs of both the organization and the law while adhering to the Ethics Code. Finally, if other measures failed, the psychologist could obey the law or other legitimate authority (e.g., military regulations) and remain within compliance of the Ethics Code. In February 2010, the APA Council of Representatives voted to change the language of this standard to address perceived discrepancies between that standard, as well as Ethical Standard 1.03, and the Introduction and Applicability section (APA, 2009). The new language, effective June 1, 2010, in the Introduction and Applicability section is as follows: If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to this Ethics Code and take steps to resolve the conflict in a responsible manner in keeping with basic principles of human rights.

Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority now reads: If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. In that same light, Ethical Standard 1.03, Conflicts Between Ethics and Organizational Demands, stated, in the original 2002 iteration: if the demands of an organization with which psychologists are affiliated or for whom they are working conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and to the extent feasible, resolve the conflict in a way that permits adherence to the Ethics Code. The new language reads: If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. Both standards continue to emphasize that problem-solving strategies involve attempting to resolve the conflict through education and generating alternative solutions, while adhering to the Ethics Code. Because dialogue and creativity most 125

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often result in solutions that meet the needs of both parties, psychologists will be most successful if a dichotomous approach to resolving conflicts between institutional standards and ethical principles is not used. The impact of a change in the language of Ethical Standard 1.02 is unknown, namely, the removal of the language that allows psychologists to follow the law if all attempts fail. This change deserves significant analysis to provide guidance to those psychologists most at risk of experiencing these conflicts. Ethical Standards 1.02 and 1.03 will be addressed throughout this chapter and examples of problem solving in the face of conflicts between the Ethics Code and organizational demands and law will be applied in examples of police and military psychology. A thorough examination of all ethical conflicts in these areas of psychology subspecialty practice is beyond the scope of a single chapter and, consequently, representative examples from each area of practice have been chosen for presentation. POLICE AND PUBLIC SAFETY PSYCHOLOGY Police and public safety psychology (hereinafter referred to simply as police psychology) is a subfield of psychology that works primarily with law enforcement agencies, but also with fire departments, nuclear regulatory agencies, and emergency medical services. This field has evolved since the 1960s when psychologists began to be employed full-time by police departments (Scrivner & Kurke, 1995). These psychologists currently are involved in employee selection and retention programs, employee assistance programs, fitness-for-duty evaluations, training, criminal investigative analysis (i.e., indirect assessment and profiling, crime scene analysis, investigative interviewing, and strategy consultation), hostage and crisis negotiations, and acute trauma response (APA, Division 18, 2009; Mann, 1980; Reese, 1995; Scrivner & Kurke, 1995). In examining the work done by police psychologists, one can quickly see that these roles largely are not the traditional functions performed by clinical psychologists. Police psychologists do provide some clinical services (e.g., intervention for acutely 126

traumatized first responders; see Borders & Kennedy, 2006), some of their duties are clinical in nature but more closely parallel those roles of military psychologists (e.g., fitness-for-duty evaluations and evaluations for security clearances; see Kelly, Mulligan, & Monahan, 2010; Young, Harvey, & Staal, 2011), and some build on behavioral science expertise but are focused on such duties as enhancing the effectiveness of interrogators and hostage negotiators (Kassin & Gudjonsson, 2004; Rowe, Gelles, & Palarea, 2006). These duties encompass the gamut of psychological services and, consequently, present an array of ethical dilemmas. The most frequent ethical dilemmas in police psychology are reported to be confidentiality, conflicts between professional ethics and the needs of the law enforcement agency (i.e., dual or mixed agency), and multiple relationships. The issue of dual or mixed loyalties is perhaps the most profound challenge and requires the clear definition of the client for all parties involved (Archibald, 1995; Monahan, 1980; Ostrov, 1995; Zelig, 1988). Indeed, this issue is covered in Standard 3.11, Psychological Services Delivered to or Through Organizations, which states the following: (a) Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probable uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions of such services to appropriate persons. (b) If psychologists will be precluded by law or by organizational roles from providing such information to particular individuals or groups, they so inform those individuals or groups at the outset of the service.

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In 1986, Park Dietz, a forensic psychiatrist, and James Reese, an agent in the Federal Bureau of Investigation, teamed up to identify strategies to avoid conflicts between the demands of law enforcement agencies and professional ethics. Table 5.1 presents these strategies along with the Ethical Standards they support and the dilemmas they help

to avoid. While the Dietz and Reese (1986) article may be considered somewhat old by professional standards, these recommendations are particularly salient in the 21st century, given the expansion of traditional police psychology roles into other areas of practice (see the sections Military Psychology and Case Study: Guantanamo Bay), particularly hostage

TABLE 5.1 10 Strategies to Avoid Conflicts Between the Demands of Law Enforcement Agencies and Professional Ethics 10 Strategies for Minimizing Role Conflicts When Providing Mental Health Services and Consultation to Law Enforcement Agencies Provide the law enforcement agency with a copy of the Ethics Code before accepting employment or a consulting assignment.

Pertinent Ethical Principles and Standards Supported 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority 1.03, Conflicts Between Ethics and Organizational Demands

Identify one’s profession and client to anyone whom one interviews, including suspects, defendants, victims, witnesses, and law enforcement personnel.

3.10, Informed Consent 3.11, Psychological Services Delivered To or Through Organizations

Obtain fully informed consent for all interviews, tests, procedures, and treatment.

3.10, Informed Consent

Do not compromise the legitimate needs of the person interviewed, the community, or the client agency by offering greater confidentiality than is necessary or possible.

Principle A: Beneficence and Nonmaleficence Principle E: Respect for People’s Rights and Dignity 3.04, Avoiding Harm 3.10, Informed Consent 4.02, Discussing the Limits of Confidentiality

Disclose to the client agency the limitations on one’s expertise.

2.01, Boundaries of Competence

Recognize differences between the values and norms of mental health professionals and the values and norms of law enforcement professionals.

Principle B: Fidelity and Responsibility

Direct all communications to the appropriate level within the command hierarchy. Obtain the permission of those in authority before speaking with the media or publishing any identifiable information about cases or agency activities.

4.01, Maintaining Confidentiality 4.05, Disclosures

Recognize the warning signs of overidentification with law enforcement: Excessive interest in police paraphernalia, unnecessary use of police jargon, and an air of callousness.

2.06, Personal Problems and Conflicts 3.05, Multiple Relationships

Participate in one’s parent discipline to avoid overidentification with law enforcement.

2.03, Maintaining Competence

Note. Items in column 1 are from “The Perils of Police Psychology: 10 Strategies for Minimizing Role Conflicts When Providing Mental Health Services and Consultation to Law Enforcement Agencies,” by P. E. Dietz and J. T. Reese, 1986, Behavioral Sciences and the Law, 4, 385–400. Copyright 1986 by Wiley. Used with permission. Items in column 2 are from Ethical Principles of Psychologists and Code of Conduct (2002, Amended June 1, 2010), by the American Psychological Association, 2010, Washington, DC: Author. Copyright 2010 by the American Psychological Association. 127

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and crisis negotiation, counterintelligence, and interrogation support. Specifically, implementation of these strategies integrates compliance with the current Ethics Code and provides a means to prevent many conflicts between organizational demands and psychology ethics. Because the arena of hostage and crisis negotiation is an area highly likely to involve significant ethical conflict between professional ethics and law enforcement agencies, this section on police psychology will focus on this subject. Please note, however, that the discussions on fitness for duty in the military psychology section and the interrogation discussion in the Guantanamo Bay case study are applicable to police psychology as well. The hostage negotiation paradigm was created by two New York City police detectives, one with a doctorate in psychology, following the Munich Olympics hostage incident in 1972, which resulted in significant loss of life. These detectives, Dr. Harvey Schlossberg and Lt. Frank Boltz,

other services to law enforcement personnel following the resolution of incidents (Gelles & Palarea, 2011; Rowe et al., 2006). The notion of psychologists playing an indirect role in law enforcement duties and the issue of informed consent are interesting dilemmas in the realm of hostage and crisis negotiation. In these cases, the psychologist will never meet the individual in question and the individual will not be aware of the involvement of the psychologist. Hostage negotiations entail an indirect assessment to be done on the individual, so that the psychologist can help the negotiator achieve a better rapport with the individual and a safe resolution to the situation. The psychologist will use any information at his or her disposal to make this indirect assessment (e.g., behavioral observations, collateral history, police reports, medical records, etc.; Gelles & Palarea, 2011; Kennedy & Williams, 2011) but will not perform any type of interview with the individual. Ethical Standard 3.10, Informed Consent, addresses this issue:

viewed crisis negotiation principles from the perspective that the incident was a crisis for the hostage taker; emphasized the importance of containing and negotiating with the hostage taker, understanding his or her motivation and personality; and stressed the importance of slowing down an incident so time could work for the negotiator. (Rowe et al., 2006, pp. 310–311)

When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code.

Over time, this paradigm has evolved from a primary focus on hostage negotiation to one of crisis negotiation because the majority of modern incidents requiring negotiators involve a single individual who is barricaded or threatening suicide (Hatcher, Mohandie, Turner, & Gelles, 1998; McMains, 1988; Rowe et al., 2006). Psychologists now have a prominent role in these incidents, not by interacting with individuals, but by playing an indirect role. Psychologists perform evaluations for the purpose of assessment and selection of negotiators, train negotiators, monitor negotiations, provide valuable consultation to the negotiator during negotiations, and provide stress management and 128

Despite provisions for this type of activity within the Ethics Code, indirect assessments and other consultation in which the psychologist will not meet the individual (e.g., interrogation consultation, forensic expert consultation) represent forms of psychological practice in which information provided by the psychologist may have a profound impact on an individual or group of people. Koocher (2009) has labeled psychologists involved in behavioral science consultation invisible psychologists and questions the ability of the Ethics Code to extend to this

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work as well as the responsibility of these psychologists to people they will not meet. These types of issues combined with the high paced and stressful nature of negotiations make crisis and hostage consultation prone to a multitude of other ethical pitfalls. Gelles and Palarea (2011) stated that given the high stress and high demand environment of the negotiation scene, it is probable that the operational psychologist will be placed into an ethical conflict by a request made by the negotiation team, the law enforcement agency’s senior leadership, or the negotiation situation itself. (p. 111) Examples of requests may include to provide clinical psychological services to members of one’s own team, particularly following a bad outcome (e.g., death of hostages, law enforcement personnel, or hostage taker) or to take on the role of the negotiator. These examples are highly representative of ethical dilemmas in police psychology given the close nature with which law enforcement personnel work with police psychologists. Given this close work environment, multiple relationships are a significant risk, such as may be the case in the primary ethical dilemma presented by providing clinical services to one’s own team. Ethical Standard 3.05 Multiple Relationships states, (a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person. A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence,

or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. (b) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist takes reasonable steps to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code. (c) When psychologists are required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, at the outset they clarify role expectations and the extent of confidentiality and thereafter as changes occur. In the case of the psychologist being asked to provide clinical services to his or her own team following a bad outcome, the agency is asking him or her to provide clinical psychological services that are routinely provided to law enforcement and emergency services personnel following traumatic workplace events. In this case, however, the psychologist would be engaging in a potentially problematic multiple relationship with the negotiation team. The interplay of the psychologist’s relationships in this case is (a) on-scene consultant member of the negotiation team and (b) potentially traumatized staff member. As a member of the team, which has been determined to require acute psychological services, this psychologist cannot now reasonably provide these services to operational peers. The psychologist also needs to consider the impact of psychological trauma on his or her own emotional state to avoid a potential negative impact of personal problems (e.g., Standard 2.06, Personal Problems and Conflicts). To apply Standard 1.03, Conflicts Between Ethics and Organizational Demands, in this case, the psychologist would educate the law enforcement chain 129

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of command on the existing conflict between the Ethics Code and the professional and personal hazards of debriefing one’s own team. The psychologist hopefully would have done this before engaging in consultation (Dietz & Reese, 1986; see Table 5.1). When informing the law enforcement agency that one is not able to provide services, alternative strategies must be generated. In this case, requesting a police psychologist from another agency to debrief one’s own team (to include the psychologist) is recommended. To be proactive, a mutual relationship of this type is best set up before engaging in this type of work. This relationship would allow for routine assessment and early intervention by an independent police psychologist for each team and can be a routine part of the job description. In the case of the psychologist being pressured into acting as a negotiator as opposed to a consultant, Rowe et al. (2006) caution that negotiating is a law enforcement function, not the function of a health care psychologist. Standard 2.01, Boundaries of Competence, states that “psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.” Negotiators are trained in “the process of negotiations, the resources of law enforcement and the public safety responsibility of law enforcement” (Rowe et al., 2006, p. 319), whereas psychologists are not trained in these areas. Gelles and Palarea (2011) noted that boundary issues are the most prevalent problems inherent to crisis negotiations. They recommended that psychologists involved in the provision of such consultation identify the client, the psychologist’s role, and the roles of other team members; remain in the role of consultant; remain autonomous in consultation; identify the boundaries of the psychologist; appreciate the uniqueness of each crisis situation; delineate the boundaries between operational consultants and health care providers; and establish and maintain professional competence. The other inherent problem with a psychologist becoming a negotiator is that it may escalate a situation by communicating to the individual in crisis that he or she is mentally ill or by reinforcing potential 130

past negative experiences with mental health services. A well-trained and prepared psychologist should not find him- or herself in this situation. One cannot generally best apply the Ethics Code in an emotionally charged and potentially lethal environment such as a crisis negotiation. To avoid being pushed into the role of negotiator, the police psychologist must prevent this from occurring before engaging in consultation by applying Ethical Standard 1.03 immediately upon hiring (Dietz & Reese, 1986; Gelles & Palarea, 2011). Although this type of work may have a number of ethical challenges, of all of the areas of psychological practice applied to public safety organizations, hostage negotiation is a singular, measurable case of how profound psychology’s impact can be on society. Using negotiation strategies results in a 1% chance of loss of life, compared with the previous use of tactical solutions, which resulted in a 50% to 100% loss of life depending on the tactical strategy used (chemical agents, 50%; assault of the hostage taker, 78%; sniper fire, 100%; Greenstone, 1995). In this case, it was the switch from the primary use of tactical solutions in hostage situations (e.g., shooting the hostage taker) to one of negotiation in the 1970s that dramatically changed the outcomes in these situations. Specifically, utilizing psychologically based negotiation strategies has resulted in a significant decrease in loss of life of hostages, law enforcement personnel, and hostage takers. MILITARY PSYCHOLOGY Military psychology is a well-debated area of psychological practice with concerns related to the mental health profession’s ability to work in the best interest of service members and other individuals. These arguments relate to the significant control wielded by the Department of Defense (DoD) over both the mental health professionals and the individuals they treat or consult about (e.g., service members, foreign nationals, detainees, etc.). However, 21st-century debates regarding military psychologists are decades old. In 1947, Tyson wrote, “It is submitted that the place for military psychologists is outside the Armed Forces, acting freely in an advisory capacity” (p. 22). Older

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(1947), an active duty psychologist responded at that time by saying, “Advice from the outside on psychological problems is largely unproductive unless the Armed Forces have someone in the active organization who will actually implement these suggestions” (p. 106). Although these arguments were made in the context of perceived constraints against (a) military psychologists being able to freely publish research, (b) military psychologists being able to ethically list authors of professional publications in order of contribution as opposed to rank, and (c) the means by which military psychology was evaluated by the military, the general message and views of each side remain pertinent. This exchange could be envisioned surrounding a variety of modern-day topics (e.g., return to duty in the combat zone, consulting to interrogations, providing psychotherapy). The 21st century’s most contentious debates pertain to the emerging roles of operational psychologists in military and intelligence organizations, continued concerns about such issues as mixed agency and confidentiality, and areas of practice that the general public cannot easily access to evaluate. However, the primary concern remains the same: How does one serve both the interests of individuals, be they beneficiaries, service member-patients, detainee-patients, individuals being debriefed or interrogated, or other persons of national security interest with whom a psychologist may be directly or indirectly involved and a government agency? Military psychologists serve a number of roles within the DoD with a wide range of populations. At any given time, military psychologists are stationed all around the world, on ships, in military medical facilities, in combat zones, in wartime detention facilities, in military intelligence organizations, in survival training schools, in research departments, and in military universities (see Doran, Hoyt, & Morgan, 2006; Johnson, Ralph, & Johnson, 2005; Kennedy & Williams, 2011; Kennedy & Zillmer, 2006) working with trainees, family members, active duty service members, foreign nationals, enemy combatants, and victims of natural disasters. Their work is varied and includes research, clinical, and operational functions as they apply to the military mission.

Work in such diverse environments with a wide variety of populations and under the auspices of the DoD naturally has resulted in a variety of ethical conflicts, with inherent dual loyalties because of simultaneously overlapping and competing demands between individuals and the overarching DoD. Military psychologists first grappled with the competing demands of the DoD and the individual service member–patient when they began working as clinicians during World War II (Kennedy, Boake, & Moore, 2010; Kennedy & McNeil, 2006; Kennedy & Moore, 2008). Over time, significant ethical analysis has been conducted as it pertains to military providers and areas of greatest ethical concern, namely, conflicts between ethics and organizational demands (Bush & Cuesta, 2010; Hines & Chang, 1998; Johnson, 1995; Kennedy & Johnson, 2009; Orme & Doerman, 2001; Stone, 2008), multiple relationships (Johnson, Bacho, Heim, & Ralph, 2006; Johnson et al., 2005; Staal & King, 2000), competence (Johnson, 2008; Reger, Etherage, Reger, & Gahm, 2008), and confidentiality (Hanson, 1985; Jeffrey, 1989; Leso, 2000; McCauley, Hughes, & LieblingKalifani, 2008). One specific issue deserves mention here because it is an often-cited criticism and concern related to military psychology, namely, the issue of confidentiality and homosexuality. An analysis provided by Kennedy, Johnson, et al. (2009) concluded that a military psychologist can maintain the confidentiality of homosexual active duty service members in most circumstances given appropriate informed consent (see Kennedy, Johnson, et al., 2009, for the analysis; see also Johnson & Buhrke, 2006; Knapp, 2008). With the repeal of the military’s Don’t Ask, Don’t Tell policy, this issue is soon to be a moot point. The most frequently encountered and ethically charged dilemma faced by military psychologists, as pertains to organizational demands, is a fitness-forduty evaluation to determine whether a given service member can return to combat duty. In this case, the psychologist’s dilemma is the protection of the mental health and indeed the life of the service member–patient versus the return of a service member to a combat situation in which death is a likelihood (Howe, 1997). In this case, the organization (i.e., DoD) has a vested interest in the return of 131

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the service member. The psychologist has a dual loyalty conflict to the military and to the service member–patient. In analyzing this dilemma, it is important to evaluate the multiple differences between the provision of mental health care within a civilian agency and the provision of care within the military. To assist psychologists in clarifying and defining their work, Johnson (2002) describes four distinct differences between military psychology and traditional areas of clinical practice: (a) the military mission is to defend the country and its interests and all clinical decisions must remain focused on this fact, (b) the reality is that service members are committed to fighting and potentially dying for their country, (c) military psychologists are bound as officers to prioritize military interests—indeed, Howe described a military provider as “primarily a soldier with special technical expertise” (1986, p. 803)—and (d) military psychologists yield extraordinary power over individual service member’s lives. Because of the nature of military demands, and similar to the fitness-for-duty evaluations provided by police psychologists, rules regarding such issues as confidentiality (Jeffrey, Rankin, & Jeffrey, 1992) and referrals for mental health evaluations (DoD, 1997; Zonana, 1997) are different from those common in civilian practice. The military may be thought of as having its own unique culture. The notion of cultural competence (Standard 2.01, Boundaries of Competence) has been raised in the military context (Reger et al., 2008) and, to be effective in this environment, psychologists must understand the population’s beliefs, expectations, code of conduct, living environment, language, unique military laws, and so on. The doctor–patient relationship is quite different from that in civilian practice. Upon entry into the military, both the individual service member and the mental health provider take oaths to protect the country and defend the constitution. Comprehensive medical care is provided to all service members, with the primary goal of maintaining an always medically ready fighting force. It is with this understanding that both service members and providers enter military service, as well as enter patient–doctor relationships with each other (Howe, 1986). A service member expects that a mental health provider 132

wants not only to treat him or her effectively but also to do so to return the individual to duty. In addition, within traditional practice, the primary focus of care does not have to take into consideration the same factors a military provider must consider when making decisions. In the combat zone, this is due to the very real fact that the safety of others is directly jeopardized when individual service members are pulled from a combat zone. Any disruption of a military unit (e.g., fire team, helicopter crew, five-man team staffing a Mobile Trauma Bay, etc.) leads to a decline in manpower, which in turn results in a subsequent decline in work efficiency (e.g., lack of expertise, increased work load, decreased opportunity for sleep, etc.) and morale of the remaining service members, as well as increased risk of mistakes and development of combat stress disorders. In exploring the notion of cultural competency and boundaries of competency, the psychologist must understand his or her role in decisions to return someone to combat. Although the input of the psychologist is often determinant, the return to duty of a service member is not the purview of the mental health provider. With the exception of medical evacuations of acutely mentally ill service members from the combat theater (e.g., psychotic episode), mental health providers only make recommendations to commanding officers as to whether an individual should be returned to duty. The commanding officer has the ultimate decision as to whether the service member actually returns to duty. The rationale for this is that the commanding officer has information that the mental health provider does not have regarding a variety of factors. Consider the example of a Marine with acute combat stress, who is recovering but continues to have some mild symptoms, which typically results in more time for restoration, brief therapeutic interventions, and education until the symptoms have resolved. A given unit may be positioning for a significant mission, unknown to the psychologist, which may depend on that service member. The commanding officer asks the psychologist to physically return the service member to his unit for the mission even though he has not been declared fit for full duty. In this case, the organizational demands (premature return of the service member) conflict with the

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professional ethics of the psychologist (avoiding harm to the service member). Standard 3.04, Avoiding Harm, states “psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.” In this case, to apply Standard 1.03, Conflicts Between Ethics and Organizational Demands, the mental health provider would educate the commanding officer on the potential risks to the service member and to the unit and the application of the Ethics Code. If the commander determines that the return of the service member is necessary, the psychologist then would attempt to problem solve to minimize risk to the service member. In the combat environment, most psychologists have security clearances that may enable the commander to provide a timeline for the mission, enabling the psychologist to keep the service member for another day or so (which could result in full resolution of symptoms) and to arrange for transportation back to the unit by helicopter as opposed to a slower convoy, further prolonging his or her access to services. The psychologist also may be able to work with the commander to mitigate exposure of the service member to potentially traumatizing material as far as is realistic during the combat mission. Finally, following the mission, the psychologist could recommend a course of action that would allow for rescreening of the service member. Because the psychologist does not have the authority to keep this service member from returning to duty, combined with the fact that not having him or her participate in the mission may place others at risk, the psychologist can only problem solve to mitigate the situation as much as possible. Commanders typically do not go against medical recommendations unless situations are dire, so there likely will be a large degree of compromise and active problem solving on behalf of the service member, which the psychologist can promulgate.

On Following Orders The notion of following the orders of senior personnel is a fundamental part of the military culture and a vital component of military efficacy. Even the terms of military ranks and positions denote the

need to obey (chief, commander, commanding officer, etc.). However, the notion of following orders is not black and white and individuals in leadership positions do not have the authority to give orders that are unlawful. This topic deserves some consideration because an order by a senior officer may conflict with the Ethics Code. Let’s first begin by discussing the concept of a lawful order. According to the Manual for Courts Martial (MCM; Joint Service Committee on Military Justice, 2008), Article 90—Assaulting or Willfully Disobeying Superior Commissioned Officer, the following are the primary determinants of a violation of a lawful order. (a) Lawfulness of the order. (i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (ii) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge. (iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service. (iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. (p. IV–19) Furthermore, Article 92—Failure to Obey Order or Regulation, outlines a more general charge when Article 90 may not apply and includes the failure to follow military regulations. This article applies to any person subject to this chapter who (1) violates or fails to obey any lawful 133

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general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties. (Joint Service Committee on Military Justice, 2008, p. IV–23) The MCM dictates the maximum punishments allowable for willfully disobeying the lawful order of a superior commissioned officer (Article 92). These include a dishonorable discharge, forfeiture of all pay and allowances, and up to five years of confinement. In a time of war, however, a sentence of death may be allowable in some circumstances as deemed appropriate by court martial. Depending on the circumstances, violation of Article 90 can result in a dishonorable or bad conduct discharge, forfeiture of all pay and allowances, and 6 months to 2 years confinement. These articles can seem daunting to a new military psychologist and to individuals unfamiliar with military operations and can give an impression that military psychologists must always do what they are told. These articles or laws apply only to lawful orders, however, and there are times when military psychologists have to contend with unlawful orders. These times usually are a result of the senior officer not having adequate information about psychology practice, regulations, or the Ethics Code, as opposed to nefarious purposes or disregard for the law by the senior officer. Take the example of an operational psychologist who was ordered by the commander of an overseas military base to provide him with the psychological testing materials that were given as a part of an evaluation conducted by the psychologist (see Kennedy, Borum, & Fein, 2011). The commander disagreed with the psychologist’s findings. The psychologist had significant concerns about this order and opted not to provide the requested materials to the commander but rather to try to educate him instead. When looking at this dilemma, one can see significant overlap between a request for psychological test data by a senior commissioned officer and those requests garnered as a result of forensic practice (i.e., requests for raw psychological test data; see Sweet, 134

Grote, & van Gorp, 2002), providing readily available ethics resources and guidance for the psychologist to attempt to address the request. First, it is probable that the commander has a legal right to the individual’s medical records (commanding officers in the military typically can have access to medical records of subordinates). However, the Ethics Code conflicts with this regulation at times and, in this case, Ethical Standards 9.04, Release of Test Data, and 9.11, Maintaining Test Security, stipulate the restrictions to disclosure (APA, 2010). Ethical Standard 9.04 states, The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. Furthermore, Standard 9.11 states, The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code. In essence, according to the Ethics Code, the psychologist can refuse to release information if release

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of the test data might cause an individual harm or to prevent misuse or misrepresentation of the data (van Gorp & Kalechstein, 2005, p. 71), clearly potential factors in providing the test material to the commander. To further complicate the matter, disclosures of test data, which include testing protocols, may violate copyright law and revelation of trade secrets (Bush & Lees-Haley, 2005). Consequently, the psychologist may be legally obligated to provide the test data to the senior commissioned officer, while at the same time prevented from doing so because of conflicting laws (i.e., copyright and trade secrets) and bound by Ethical Standards 9.04 and 9.11. In this case, the psychologist opted to take the most common and effective approach when asked by senior officers for things, which they may not understand are inappropriate. She educated the commander: She explained to him the types of questions being asked, why these questions were being asked, how they were being used in the assessment process as well as her professional duty and commitment to protect the integrity of the test items. (Kennedy et al., 2011, p. 77) The commander subsequently withdrew his request. This is an example of a typical type of order that the psychologist may actively address so as not to follow it. It arose out of the commander’s lack of knowledge about the psychological assessment process, the professional and ethical duties of the psychologist, and laws about test data. It was solved in a manner that permitted adherence to the Ethics Code, provided the commander the information he was looking for, and did not endanger the psychologist for not following an order. Less frequently, a senior commissioned officer will give a psychologist an order that is blatantly unlawful. Take the example of a force surgeon (a term for an individual in charge of a medical unit; not necessarily an actual medical surgeon) who ordered a junior psychologist to prescribe psychoactive medications in a combat zone because of the lack of a psychiatrist (Kennedy, 2009). When he attempted to explain to the surgeon that he was not

a prescribing psychologist and consequently was not competent to provide that service, the surgeon told him that “regular professional guidelines, ethics codes, and even U.S. law did not apply in the combat zone” (2009, p. 9). In this case, this is clearly an unlawful order as prescribing medications without an appropriate license is illegal. The surgeon violated military law by giving the order and the psychologist would be violating military law if he followed it. Unfortunately, the first line of defense (i.e., educate the senior officer) failed. The psychologist searched for an alternate way of meeting the needs of service members while not following the unlawful order. A recommendation was made to have one of a number of legal prescribers who were also in the combat zone take on this role (i.e., family physicians, physician assistants, nurse practitioners). Had that failed, however, this is a matter that would have to be taken up the chain of command (there are approved ways of going up the chain of command when necessary) or reported to the psychology consultant or specialty leader for intervention. Military psychologists have a great deal of latitude when asked for information or actions that may not be appropriate to provide. To successfully navigate these waters and in accordance with Knapp, Gottlieb, Berman, and Handelsman’s (2007) ethical decision-making process, military psychologists should (a) have a good understanding of the Ethics Code, as well as military regulations and laws; (b) maintain a consultation relationship with a senior member of the military psychology community and a local military lawyer to assist in clarification of conflicts and creative ethical problem solving; and (c) maintain visibility with the commanders of the service members they are evaluating and treating to optimize the chances of compromise and positive outcomes when dilemmas arise.

Case Example: Guantanamo Bay Although public opinion varies widely regarding military activities at Guantanamo Bay (GTMO), it is undeniable that it has presented a singular environment regarding the practice and evolution of police and military psychology during a time of war. Consequently, a discussion of GTMO in the context of the duties performed by both types of 135

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psychologists may assist in illustrating not only the roles of psychologists but also the intersection of those roles with psychological ethics. Within GTMO, police psychological principles, termed operational psychology in this environment, are being applied to such issues as interrogation consultation (Dunivin, Banks, Staal, & Stephenson, 2011) and clinical military psychologists are providing traditional mental health care (Kennedy, Malone, & Franks, 2009). The detention facility in GTMO has existed since shortly after September 11, 2001. This initially opened in January 2002 as Camp X-ray, which historically had been a camp for Haitians who could not be kept with the general population of refugees in the 1990’s. These aging outdoor cells were hastily repaired, and administrative and medical buildings and tents were erected and used for all detainees until April 2002. In April, a better constructed facility was opened, which included improved facilities (e.g., recreational areas, in-cell toilets, etc.). The evolution of the camp since April 2002 resulted in approximately nine separate facilities (including two modern multimillion dollar prisons modeled after two U.S. facilities), plus three detainee medical clinics, a detainee hospital, and a separate behavioral health unit (Cucullu, 2009; Kennedy, Malone, et al., 2009). Psychologists have been involved with the detention operation at GTMO since its first days, initially assigned as mental health providers to the detainees and to the military personnel assigned there. This psychology mission quickly expanded into one of both traditional clinical care and consultation to interrogation. In the summer of 2002, a military psychologist who had been assigned as a clinician for approximately a month was reassigned to consult to interrogation teams to improve the amount of actionable intelligence coming from the detainees in GTMO (James, 2008). This clear dual-role predicament (i.e., clinician and interrogation consultant for the same population of detainees) and subsequent problems related to reports of abusive interrogation strategies (Committee on Armed Services, 2008; Gelles, 2007; Mayer, 2008) prompted the psychological community to address practice issues related to operational psychologists. 136

Before discussing how these issues have been addressed, it is necessary to discuss the debate regarding psychologist involvement in supporting military and intelligence interrogations. Within the APA, there are significantly polarized camps related to this issue. On the one hand, there are concerns about these practices with the primary arguments centering around (a) the presence of psychologists lending approval or legitimacy to the interrogation process, which some fear is abusive or tantamount to torture; (b) the risk of psychologists experiencing behavioral drift or overidentification with the intelligence agency; (c) problems centering around defining abuse and torture; (d) problems related to legal rights of detainees; (e) concerns that even if psychologists observe abuse and report it, they will not have the authority to make a difference; and (f) concerns that psychologists will fear reporting abuse because of issues of power and rank inherent to the military. In contrast, other psychologists believe that there is significant benefit from psychologists consulting to interrogations because (a) having an individual bound by a clear code of ethics in a position to monitor and report problems is a protective factor for both the process and the detainees; (b) psychologists have reported concerns that have been acted on and resulted in changes to the process; (c) psychologists understand rapportbuilding approaches and their efficacy and work to actively promote those methods; (d) police psychologists have been engaged effectively in this role for decades in a legal, ethical, and effective manner providing both a precedence and useful guiding principles; and (e) there is no justification for prohibiting psychologists from working in an area simply because the system is not yet perfect—military psychologists can be an active part of that change. (For more comprehensive coverage of this debate, please see Galvin, 2008; Kennedy & Williams, 2011.) To address the concerns, however, the first initiative was to establish a task force to provide guidance to psychologists working in these settings (Behnke, 2006). The Task Force on Psychological Ethics and National Security (PENS Task Force) issued 12 statements (see Table 5.2) to guide the work of psychologists in high-risk,

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national security environments (APA, 2005) and APA reaffirmed its stance against torture (APA, 2007, 2008a). Some felt that the PENS Task Force was biased, however, particularly given the number of military and intelligence members on the task force (e.g., Olson, Soldz, & Davis, 2008). Others felt that without the military presence on the task force, informed decisions could not be made. Despite these disagreements, the PENS Task Force recommendations have been implemented by operational psychologists and used in conjunction with the Ethics Code and other pertinent resources (see Table 5.1; Kennedy & Williams, 2011) to guide practice. The other primary means of addressing these problems focused on a policy change in APA as well as changes to the Ethics Code. These changes are discussed in more detail in the context of a description of the duties of the variety of mental health professionals who work in GTMO and a depiction of some of the ethical decision making used at the facility.

Police and Operational Psychology Activities at GTMO Police psychologists have long been tackling the thornier ethical dilemmas faced by those psychologists consulting to intelligence and military organizations in support of the fight against terrorism. The single most publicized role of these psychologists in facilities such as GTMO is that of consultation to interrogation. In military and intelligence organizations, the police psychology function of consulting to an interrogation is performed by a subspecialty of psychology known as operational psychology, as psychologists in these environments have other operational duties that are distinct from police and public safety psychologists. Operational psychology has been defined as “the application of the science and profession of psychology to the operational activities of law enforcement, national intelligence organizations, and national defense activities” (Kennedy & Williams, 2011, p. 4) and also may include such duties as counterintelligence and

TABLE 5.2 12 Statements Concerning Psychologists’ Ethical Obligations in National Security–Related Work The Statements 1. Psychologists do not engage in, direct, support, facilitate, or offer training in torture or other cruel, inhuman, or degrading treatment. 2. Psychologists are alert to acts of torture and other cruel, inhuman, or degrading treatment and have an ethical responsibility to report these acts to the appropriate authorities. 3. Psychologists who serve in the role of supporting an interrogation do not use health care–related information from an individual’s medical record to the detriment of the individual’s safety and well-being. 4. Psychologists do not engage in behaviors that violate the laws of the United States, although psychologists may refuse for ethical reasons to follow laws or orders that are unjust or that violate basic principles of human rights. 5. Psychologists are aware of and clarify their role in situations where the nature of their professional identity and professional function may be ambiguous. 6. Psychologists are sensitive to the problems inherent in mixing potentially inconsistent roles such as health care provider and consultant to an interrogation, and refrain from engaging in such multiple relationships. 7. Psychologists may serve in various national security–related roles, such as a consultant to an interrogation, in a manner that is consistent with the Ethics Code, and when doing so psychologists are mindful of factors unique to these roles and contexts that require special ethical consideration. 8. Psychologists who consult on interrogation techniques are mindful that the individual being interrogated may not have engaged in untoward behavior and may not have information of interest to the interrogator. 9. Psychologists make clear the limits of confidentiality. 10. Psychologists are aware of and do not act beyond their competencies, except in unusual circumstances, such as set forth in the Ethics Code. 11. Psychologists clarify for themselves the identity of their client and retain ethical obligations to individuals who are not their clients. 12. Psychologists consult when they are facing difficult ethical dilemmas.

Note. From Report of the APA Presidential Task Force on Psychological Ethics and National Security (pp. 4–8), by the American Psychological Association, 2005, Washington, DC: Author. Copyright 2005 by the American Psychological Association. 137

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counterterrorism consultation (see Kennedy et al., 2011). Consequently, this term is used for the remainder of this section. The operational psychologists performing interrogation consultation are Behavioral Science Consultants (BSCs), members of teams often referred to as “biscuit” (Behavioral Science Consultation Team [BSCT]). By regulation, they provide consultation to interrogations and detention operations (Department of the Army, 2006, 2010) and are “not assigned to clinical practice functions, but to provide consultative services to support authorized law enforcement or intelligence activities, including detention and related intelligence, interrogation, and detainee debriefing operations” (Department of the Army, 2010, p. 4; see also Kennedy, Malone, et al., 2009). BSCs’ professional conduct and standards of competence are guided by the Ethics Code (APA, 2010), PENS Task Force findings (APA, 2005), military instruction (Department of the Army, 2006, 2010), and pertinent literature on ethical decision making (e.g., Barnett & Johnson, 2008; Stephenson & Staal, 2007). In addition, the BSCT instruction mandates routine ethical analysis and compliance with professional ethics codes, state licensure guidelines, and military law and instruction. The newest version of the instruction orders the establishment of an ethics panel for BSC personnel (Department of the Army, 2010). In the role of consultant to interrogation, there are risks associated with the organization making unrealistic and conflicting demands on the psychologist. Although media reports have focused on abusive interrogations, the reality is that the requests, which while atypical when compared with traditional clinical psychology practice, are more mundane. Stephenson and Staal (2007), for instance, presented a case of an operational psychologist who was asked to perform guard duty for two detainees with high intelligence value for whom he would be consulting the next day, given the need for other staff to sleep. The two most publicized concerns about operational psychologists consulting to interrogations appear to be (a) issues related to the disclosure of

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medical or mental health information and (b) abuse and torture (Galvin, 2008). Consequently, I look at both of these as scenarios for ethical decision making. Dunivin et al. (2011) presented a case of a BSCT psychologist who was asked by the intelligence group to provide medical information about a detainee that the interrogator would then be able to use to guide future interrogations. In this case, the most prominent ethical dilemma is that of multiple relationships, namely, a role associated with a health care provider (i.e., access and use of medical information) in addition to that of operational psychologist (consultation to interrogation). The Ethics Code provides guidance regarding multiple relationships and the PENS Task Force Report clarifies this general guidance and comments directly against mixing these roles in this circumstance. To apply Ethical Standard 1.03, the psychologist would educate the intelligence team making this request to guide the boundaries of the relationship for the future, and refuse the request. Operational psychologists understand that there are times that refusing this type of request might equate to a lost opportunity to gather intelligence, but maintaining appropriate and ethical boundaries are also critical to the process. The topics of abuse and torture have dominated headlines regarding wartime detention facilities, but the reality is that ethical decision making in these instances is straightforward. This fact was exhibited in 2003 by Mike Gelles, a psychologist working for the Naval Criminal Investigative Service, who witnessed what he considered to be an abusive interrogation and who subsequently reported his concerns up his chain of command (Mayer, 2008). This act resulted in both media coverage of the problem and widespread changes to the process. APA is clear regarding its stance on abuse and torture (APA, 2007, 2008a), and service members are required by military regulation to report any instance of such (DoD, 2006) whether they observe it or it is reported to them by a detainee. Despite these positive benefits of psychologist involvement, in 2008 APA membership passed a resolution making it a violation of APA policy for psychologists to work in wartime detention facilities unless they are treating service members or are

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working “directly for the persons being detained or for an independent third party working to protect human rights” (APA, 2008b, p. 2). This change was focused not only on operational psychologists/BSCT but also on detainee mental health providers. In a somewhat confusing twist however, APA policies do not affect the Ethics Code, rendering this change unenforceable and leaving it to individual psychologists to decide whether to deploy to a wartime detention facility.

Clinical Military Psychology Activities at GTMO Within this environment of many different types of mental health professionals working with a variety of goals, questions have arisen about appropriate and ethical roles for clinical psychologists in GTMO (see Howe, 2003). In some ways, GTMO has become a symbol of the concerns regarding the clashing of institutional demands and professional psychology ethics. Some authors have criticized the work of both clinical psychologists and psychiatrists in GTMO, accusing them of providing medical information to interrogators (Bloche & Marks, 2005) to exploit psychological vulnerabilities (Okie, 2005). Other authors have raised concerns about such issues as the fact that mental health providers do not reveal their identities to their detainee– patients (Gravitz, 2009), using pseudonyms instead because of concerns for personal safety and for safety of family members. Still others raise the concern as to whether true informed consent to psychological treatment is possible in any prison hospital setting (Rigg, 2002; Weinstein, 2002). Questions about GTMO are unique in that the facility is less public than other organizations where psychologists may experience institutional conflicts (i.e., schools, forensic settings). In addition, there were highly publicized incidents of abuse in another military prison (i.e., Abu Ghraib). Issues involving the legal status of detainees in GTMO also complicate the picture. This environment becomes complicated for all medical professionals. This does not mean, however, that creative decision making cannot resolve apparent differences between the Ethics Code and institutional policies, although issues in

GTMO have raised questions in the minds of some psychologists as to when, if ever, it becomes inappropriate for a psychologist to work within a given institution. In this atmosphere of challenges, mental health providers, to include psychologists, psychiatrists, and psychiatric technicians, have been providing mental health care for the detainees of GTMO (DoD, 2006). According to Kennedy, Malone, et al.(2009), this care is given by providers who have no intelligence function. This is not to say that the mental health mission, which requires development of rapport and forming a therapeutic relationship, does not at times conflict or intersect with the intelligence mission. For example, Kennedy and Johnson (2009) reported an instance of a detainee-patient providing his treating psychologist information of potential intelligence value. This created a significant dual agency problem for the psychologist, who was a military officer with an obligation to the public safety and the military mission but who also had a commitment to the detainee, who was a mental health patient. To address the conflict between the Ethics Code (Ethical Standard 4.01, Maintaining Confidentiality) and the institutional demands (safety and public protection), the psychologist opted to try to preserve the anonymity of the detainee from intelligence personnel while necessarily disclosing the information. The information was provided to a third party in authority per law and military regulations, and in accordance with Ethical Standards 1.02 and 1.03, an explanation of the Ethics Code and the potential implications of disclosing the detainee’s name to intelligence personnel also was provided. This individual did not deem the identity of the detainee to be required by intelligence personnel for effective use of the information. This permitted the treating psychologist from essentially effecting an interrogation of the detainee-patient, while the psychologist also met obligations required by law and military regulations. Although conflicts between the intelligence and clinical missions are an infrequent concern, Kennedy, Malone, et al. (2009) reported that the primary challenges in treating detainees in GTMO

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included building adequate rapport, finding private locations to conduct therapy and evaluation, tackling issues surrounding informed consent and matters of more routine mixed agency (e.g., involuntary pharmacologic treatment), achieving adequate cultural competency (Kennedy, 2011; Kennedy, Jones, & Arita, 2007), and addressing the stigma among the detainee population of receiving mental health care. CONCLUSION In 1980, Brodsky wrote, “With each breakthrough in psychological knowledge, new and profound ethical and practical problems arise. As fields of study and practice develop, they diversify” (p. 63). Without doubt, the continued expansion of psychological practice into police and public safety organizations and the military has presented new ethical challenges. In that same light, however, it is evident that psychological consultation roles in the interest of national security have gained a place of prominence in these agencies. Much like the psychological testing inventions and acute stress treatments of World War I, the dramatic expansion of psychology training and clinical psychology as a result of World War II (see Kennedy & McNeil, 2006; Kennedy et al., 2010), and the lives saved as a direct result of the implementation of psychological negotiation concepts spurred by the Munich Olympics tragedy; the terrorist attacks of September 11, 2001; and the fight against terrorism have resulted in significant changes to the practice of psychology. Once again, a national crisis has resulted in a burst of research, process improvement, and other professional psychology activities, which are actively reshaping the field and increasing the value of psychological consultation.

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Weinstein, H. C. (2002). Ethics issues in security hospitals. Behavioral Sciences and the Law, 20, 443–461. doi:10.1002/bsl.504 Wiskoff, M. (1960). Ethical standards and divided loyalties. American Psychologist, 15, 656–660. doi:10.1037/h0046396 Young, J., Harvey, S., & Staal, M. (2011). Ethical considerations in the conduct of security clearances. In C. H. Kennedy & T. J. Williams (Eds.), Ethical practice in operational psychology: Military and national intelligence applications (pp. 51–68). Washington, DC: American Psychological Association. Zelig, M. (1988). Ethical dilemmas in police psychology. Professional Psychology: Research and Practice, 19, 336–338. doi:10.1037/0735-7028.19.3.336 Zonana, H. V. (1997). Legal regulation of psychiatric practice in the military. In R. G. Lande & D. T. Armitage (Eds.), Principles and practice of military forensic psychiatry (pp. 452–468). Springfield, IL: Charles C Thomas.

CHAPTER 6

COMPETENCE Thomas F. Nagy

The work of psychologists embraces an increasingly diverse range of settings requiring education and training to achieve proficiency. These areas include psychotherapy, school psychology, research, teaching, clinical supervision, forensics, and industrial and organizational consulting, to name a few. Competence in any of these professional areas may be seen as an elastic concept, ranging from a minimal level of capability to the expert level, and including mastery of both knowledge and skills (Abeles, 1998). Defining, achieving, and maintaining competence is the subject of this chapter.1 Epstein and Hundert (2002) provided a comprehensive definition of competence as “the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values, and reflection in daily practice for the benefit of the individual and community being served” (p. 226). And Epstein (2007) explained an important developmental aspect of competence as being “gained through deliberate practice and reflection on experience” (p. 388). By maintaining their competence, psychologists maximize the odds of making positive changes in the lives of those with whom they interact and minimize the chances for harm (Nagy, 2011). An example of minimizing harm would be the psychotherapist who fails to recognize the seriousness of a potentially dangerous situation and to take some preemptive action—such as when her depressed

patient discloses his intent to harm his former manager at work who has recently terminated his employment. In such situations, the psychologist normally would be required to break confidentiality and notify the intended victim or the local police department to protect the patient from acting on his hostile impulses. Failure to do so might constitute incompetence on the part of the treating therapist and could result in harm or injury to the identified third party and the patient as well.2 The concept of competence not only includes therapists or clinical supervisors, who provide services to clients and patients or consult with organizations, but also extends to those who do research and publish their results. The reporting and interpreting of data has major implications for psychologists as well as the general public. Incompetent research resulting in errors or fabrications in published materials not only harms the knowledge base by imbuing it with inaccuracies, but also could have negative effects on others—for example, psychologists who rely on current research in their daily work and the individuals and groups whom they serve. This chapter focuses on the concept of competence and how it applies in at least a fundamental way to the various roles played by psychologists. Other chapters in this book go into greater depth in many of the specific areas and roles that are introduced in this chapter. This chapter covers the moral

1

Some of the content for this chapter derives from the author’s book Essential Ethics for Psychologists: Understanding and Mastering Core Issues (Nagy, 2011).

2

Individual states vary concerning laws relating to confidentiality and their exceptions and what steps psychologists must take when the threat of harm to a third party is revealed to the treating therapist.

DOI: 10.1037/13271-006 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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basis for competence, two general ethical principles relating to competence, bias and prejudice, general concepts about achieving and maintaining competence, therapy, assessment, clinical supervision, teaching, maintaining boundaries with patients, students, and trainees, research and publication, use of technology and telehealth, transitioning to new areas of competence, and ethical transgressions— exceeding one’s competence comfort zone. THE MORAL BASIS FOR COMPETENCE Understanding the moral principles that underlie a code of conduct helps psychologists to interpret the ethical standards. The foundational ethical theories and moral principles that guide the practice of psychology are discussed in more detail in Chapter 1 of this volume. Although the standards are numerous, and fairly specific, they still cannot address every situation and professional role played by psychologists. The General Principles contained in the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) is helpful in this regard. These principles articulate unenforceable, aspirational guidelines that describe the general values underlying the standards in the Ethics Code. The high standards described in the General Principles are best understood by considering that human behavior in a moral sense can be broadly classified into various categories. According to Beauchamp and Childress (2001) there are four categories of moral actions: (a) actions that are right and obligatory (e.g., telling the truth), (b) actions that are wrong and prohibited (e.g., committing murder), (c) actions that are optional and morally neutral—neither obligatory nor wrong (e.g., performing common daily activities), and (d) actions that are optional but morally meritorious and praiseworthy (e.g., donating a kidney to a needy patient who is unknown to the donor). This last category does not necessarily pose an exceptionally high threshold, as Beauchamp and Childress also made the case that “not all supererogatory acts are exceptionally arduous, costly, or risky” (p. 41). They pointed out that the line between what is mandatory and what is optional is not always apparent. 148

Psychologists would do well to continually aim for morally meritorious and praiseworthy conduct rather than to focus their sights on simply avoiding incompetence. This last category is largely the domain of the General Principles and addresses behavior best described as supererogatory. The word supererogatory derives from the Latin super-erogare (i.e., to pay out over and above what is required) and refers to a class of actions that are not “required” but go beyond the call of duty (e.g., a good Samaritan) (Blackburn, 2005). Supererogation has four defining principles, according to Beauchamp and Childress (2001): a supererogatory act (a) is optional—neither required nor forbidden by common-morality standards, (b) exceeds what the common morality expects or demands, (c) is intentionally undertaken to promote the welfare of others, and (d) is morally good and praiseworthy in itself (not merely undertaken from good intentions). As applied to the Ethics Code, supererogatory acts primarily are presented in the General Principles section of the code (see the following section). But first we will address the concept of a floor and a ceiling in the house of ethics—how minimal standards and lofty goals each have a place in this document.

Ethical Floor and Ceiling The Ethics Code’s floor and ceiling both relate to moral values as they can be applied to psychological work. The Ethical Standards constitute the floor— they describe minimal levels of performance that are expected from the ethical psychologist. There is no choice about compliance; the ethical standards require psychologists to engage in certain behaviors in the course of carrying out their work and specifically prohibit others. For example, the therapist who treats a man who is addicted to a chemical substance must first have a minimal level of competence (e.g., education and training) before beginning to treat the patient. It would not be sufficient for her to be welltrained as a psychotherapist but not trained in the treatment of addictions per se, as the Ethics Code requires compliance with the standards addressing the attainment of mastery before accepting such patients. If she lacks the proper training, she runs the risk of harming the patient by using inappropriate

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interventions or strategies, or, at best, not providing an intervention that is beneficial to the patient. At the same time, psychologists are required to take reasonable steps to avoid harming their patients, students, and others with whom they work, as stated in Standard 3.04, Avoiding Harm, in a section entitled “Human Relations.” This prohibition against inflicting harm on others requires psychologists to avoid behaving in a way that would likely have an adverse impact. And when harm to another is foreseeable and unavoidable, they must take steps to minimize it. The psychologist in the media who spontaneously makes negative and inaccurate comments concerning the lifestyle or values of gays or lesbians is failing to avoid harm to these individuals. His lack of competence in media presentations and ignorance of the facts may result in damaging comments that may be heard by a large audience—on radio, television, or the Internet—possibly contributing to increased antipathy for members of these minority groups. The ceiling of the Ethics Code resides within the General Principles. These principles are behavioral objectives on which psychologists set their sights but are not required to attain. They also are to be used in ethical decision making when the ethical standards fail to provide adequate guidance or advice about what to do in a specific situation. These five General Principles constitute the moral basis and the aspirational goals of all psychologists who wish to go beyond complying with the minimal standards set by the Code of Conduct (i.e., enforceable ethical standards). Ethical questions often arise during the normal course of a psychologist’s work—teaching, consulting, carrying out research, and so on. Those psychologists who attempt to discover their supererogatory obligations, however, are more likely to actively seek out the ethical questions hidden in their professional activities (Knapp & VandeCreek, 2006). In doing so, they may find the General Principles particularly useful, even though the language is lofty, sometimes vague, and lacking in the kind of specific directives that are more commonly found in the ethical standards (e.g., musts and must-nots). The five General Principles are Principle A, Beneficence and Nonmaleficence; Principle B,

Fidelity and Responsibility; Principle C, Integrity; Principle D, Justice; and Principle E, Respect for People’s Rights and Dignity. The areas of psychological competence are best represented in Principles A and D and are examined in the section Two General Ethical Principles Relating to Competence.

How Supererogatory Values Help A psychologist who understands the supererogatory values contained in the General Principles (the ceiling of ethical conduct) will be better able to use the Code of Conduct for ethical decision making even when specific standards do not exactly address the encountered situation that raises an ethical question. Psychologists are not expected to merely comply with stated rules to avoid sanctions from an ethics committee or licensing board. Hopefully, they also will develop a deeper understanding of the moral underpinnings for the ethical standards, such as those described in the General Principles, for guidance in ethical decision making, particularly when ethical rules conflict, or laws and ethical standards are incompatible. Case Example 1 A psychotherapist is ambivalent about offering treatment to a 17-year-old young man with autistic disorder, because he has had little training in diagnosing or treating individuals with this pervasive developmental disorder. By reflecting on the risk of harm versus the probability of providing help to the young man, given his lack of experience, the therapist takes into account General Principle A, Beneficence and Nonmaleficence. And by honestly appraising the boundaries of his competence and limitations of his expertise he honors the spirit of Principle D, Justice. These overarching principles set the ethical tone for standards pertaining to competence. After considering them, as well as the relevant ethical standards, the therapist decides to refer the adolescent to another therapist experienced in treating this disorder. 149

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TWO GENERAL ETHICAL PRINCIPLES RELATING TO COMPETENCE In this section we examine the two General Ethical Principles that primarily address competence: Principle A, Beneficence and Nonmaleficence, and Principle D, Justice.

General Ethical Principle A: Beneficence and Nonmaleficence The first General Principle is Principle A, Beneficence and Nonmaleficence. Beneficence means to do good, rendered from the Latin, and nonmaleficence means to avoid harming others, in the course of carrying out one’s professional work. These concepts have roots dating back to the Hippocratic oath in the 4th century BCE, when medical doctors codified the competing demands of helping their patients and avoiding harming them. The following two examples from clinical practice illustrate how these concepts have a bearing on competence. The first scenario addresses a classic challenge faced by therapists who may experience a sexual attraction to a client or patient. Case Example 2 A male therapist attempts to balance how to competently establish a working alliance with a friendly female patient, while, at the same time, avoiding developing a personal friendship or romantic relationship with her, lest he lose his objectivity and ultimately his competence. The patient mistakes the therapist’s empathy and warmth for feelings of friendship and even love, and begins to behave in a flirtatious manner. However, the therapist does not respond to her seductiveness, choosing, instead, to address the topic of interpersonal boundaries in the treatment setting. Ultimately, he avoids harming his patient by finding equilibrium between the personal relationship (e.g., having friendly feelings for the patient) and the professional one (e.g., maintaining sufficient objectivity to maintain his competence and serve as an agent of change for her). Preserving this 150

critical balance is part of the artistry and science of psychotherapy, in spite of an occasional patient’s wish that it might be otherwise. The next scenario addresses a training setting in which three individuals are involved in a professional relationship: supervisor, supervisee, and patient. Case Example 3 A clinical supervisor must balance providing training for her supervisee with maintaining the welfare of the patient receiving treatment. In a particularly challenging situation, such as a suicidal patient with a personality disorder and alcohol dependency, it may appear as though the patient would be better served by consulting a licensed practitioner rather than a trainee. However, with competent supervision of the therapistin-training the treatment will hopefully progress satisfactorily. However, if the supervisor is negligent in performing her duties—meets less often for supervisory sessions or fails to pay attention to emergent risks that are being disclosed by the patient—she may contribute to harming both the therapist-in-training and the client. The therapist–trainee is being harmed by receiving substandard supervision and the patient is being harmed by receiving inadequate treatment by the trainee, and may be at increased risk for committing suicide. Principle A also reminds psychologists of their obligation to be mindful of problems with their own physical and mental health, and how they could affect others. Psychologists are subject to the same human frailties as anyone else. The competence of an otherwise-excellent supervisor, teacher, or management consultant could be significantly affected by a chronic medical condition, medication, sleep deprivation, or major life stress, such as the death of a family member, divorce, or financial adversity. Consider the following example in which a health problem strongly affects the physiological and

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psychological well-being of a psychologist and interferes with her competence. Case Example 4 A psychotherapist with chronic back pain must take daily medication to mitigate her suffering that unfortunately dulls her mental acuity and cognitive functioning. She finds that her effectiveness is impaired in carrying out diagnostic testing and simply listening carefully to her more challenging therapy clients. In particular, she struggles to be alert enough to provide treatment to a single mother with depression who is having difficulty parenting her alcoholic son. The therapist knows that she has an ethical obligation to monitor the extent to which her medications detract from her competence to provide treatment, or engage in any other psychological work, for that matter. She considers various options in dealing with her more challenging patient, such as (a) terminating and referring the patient to another therapist or (b) accommodating in some other way, such as having shorter therapy sessions, scheduling her patient only at a time of day when she is most alert (e.g., mornings), altering the times of taking her medication, taking brief naps during the day, or pursuing some other means. In coping with such a health problem, the psychologist would not find suggested courses of action in either Principles A or D or in the ethical standards, except in a general way. Consulting these two sections of the Ethics Code may prompt the psychologist to be vigilant about matters of her own mental and physical health, to note when her professional competence might be declining, and to take appropriate and timely action. Maintaining sound mental health and sufficient emotional competence to practice is covered in Chapter 7 of this volume.

General Ethical Principle D: Justice The fourth General Principle, Justice, often has application in the legal arena, such as when a

psychologist is asked to testify about his or her psychological assessment of divorcing parents who are litigating about child custody, or when a psychologist delivers a report to the court about a defendant’s competence to stand trial. Justice derives from the Latin root justitia, meaning justice, or equality, and it has been defined as follows in legal settings: fairness, moral rightness, and a scheme or system of law in which every person receives his or her due from the system, including all rights, both natural and legal (see http://dictionary.law.com). This principle has a bearing on competence, and it prompts psychologists to be aware of their own biases and prejudices in the course of their work, as these can lead to unjust practices. It also asks psychologists to make certain that they do not exceed the boundaries of their competence and the limitations of their expertise. Because these concepts are not always readily apparent, they may be difficult for psychologists to grasp. Prejudices and biases may stem from one’s earliest days, involving family of origin, ethnicity, cultural conditioning, specific life events, sense of humor, and other factors—much of which may unconsciously affect the psychologist’s adult thoughts and actions. The boundaries of competence are not always easily noted either, as psychologists sometimes find themselves being “nudged” beyond their comfort zone, in clinical and consulting cases, supervision, forensic situations, and other areas, without adequate reflection about the risks they are encountering. BIAS AND PREJUDICE A lack of impartiality may come from holding unfounded assumptions about a particular individual or group that affect how the psychologist teaches, designs and conducts research, evaluates, or provides treatment for a person. These unfounded assumptions can profoundly affect competence, resulting in judgments, decisions, interventions, and other actions that harm others, either by what they accomplish or fail to accomplish. This issue is addressed in Section 3 of the Ethics Code, by Standard 3.01, Unfair Discrimination. What we might term competence in human diversity, which prohibits psychologists from engaging in unfair discrimination, can be formed on 151

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the basis of the following factors: age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law. Therapists willing to become more knowledgeable about these important factors in their patients’ lives not only avoid prejudice but also go beyond providing services that meet minimal standards by proactively augmenting their clinical skills and their ability to be truly helpful to others. Those striving for very high levels of competence also may experience better outcomes as well as a sense of continuing professional improvement over time.

Age Developmental issues manifest themselves continuously throughout life, requiring psychologists to maintain their knowledge and skills commensurately. Those who diagnose, provide treatment, teach, or do research with people from infancy, early childhood, adolescence, adulthood, and later life must not presume competence without proper education, training, supervision, or other life experiences. They continuously enhance their skills by means of individual or peer group consultation, attending workshops, reading journals that focus on issues relevant to the age group being treated, and being up to date on APA publications, such as Guidelines for Psychological Practice With Older Adults (2004) and Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline (1998).

Gender Gender may be considered to be a subculture unto itself, with its own range of genetic predispositions, physiology, perceptions, cognitions, and behavior patterns conditioned since birth by family and culture. The competence of a researcher could be compromised by unwittingly introducing gender bias into any phase of an investigation, including formulation of the research hypothesis, collection of data, and even interpretation of the results. Competence of a teacher, supervisor, or therapist can be impaired by gender bias consisting of unwarranted assumptions about the inherent nature of males and females. These assumptions can affect grading academic performance, psychological 152

assessment, carrying out psychotherapy, and the very nature of their relationships—including developing a multiple role relationship concurrent with the professional one that could impair competence (e.g., business relationship, friendship, romantic relationship). It is an ongoing task to enhance one’s knowledge of the opposite sex by remaining current on the research, attending seminars, observing publications from the APA such as the lengthy document Guidelines for Psychological Practice With Girls and Women (2007b), and other means.

Sexual Orientation An essential component of psychological competence is having awareness of and accepting the broad variety of sexual orientations and preferences. A systematic bias or fear of homosexuals (or heterosexuals) may impair a psychologist’s work in much the same way that gender bias does. A psychologist’s vulnerable or panicky feelings, anger, avoidant or hostile behavior, or other signs of a homophobic response diminish competence and adversely affect the working relationship. The APA publication Guidelines for Psychotherapy With Lesbian, Gay, and Bisexual Clients contains 16 recommendations concerning diagnosis, treatment, family relationships, social prejudice and discrimination, risks and challenges of being gay, health matters, obligations of the psychologist working with gay clients and patients, and other matters (APA, Division 44, Committee on Lesbian, Gay, and Bisexual Concerns Task Force, 2000). This document helps therapists, consultants, and researchers to be aware of their own potential for bias for or against gays or lesbians, prompting them either to limit their professional contacts or to obtain supervision, consultation, psychotherapy, or other rehabilitative experience to enhance their competence in working with these minorities.

Race, Ethnicity, National Origin, and Language Ignorance or prejudice about race or national origin of immigrants or first-generation Americans can impair a psychologist’s ability to work competently. The extensively diverse population in some regions of the United States may pose significant challenges

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in learning about the values, norms, social customs, idiosyncrasies, attitudes about mental health, and other attributes of those from other cultures. As an example, one might consider the therapist working with a Latino man who intends to bring a family member into the consulting office with him. This might seem to be an unusual practice to a North American psychologist with conventional values. However, the personal boundaries among Latinos are typically more inclusive of others, and it might be quite natural to include a sibling or even a close friend. On the other hand, the management consultant working with a Japanese corporate executive who consistently avoids eye contact should remember that such a behavior is not indicative of rudeness or disrespect. Quite to the contrary, in the Japanese culture, avoidance of eye contact is more likely to represent a sign of respect accorded to an authority figure. Being enlightened about such cultural differences is the focus of the APA publication Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists (APA, 2003). Although psychologists certainly are not expected to develop proficiency in the native tongue of every client or student from a foreign country, they at least may show the inclination to learn certain fundamentals and customs, such as greetings or important nonverbal interactions. Demonstrating such a willingness has the potential of assisting in the relationship and enhancing the professional service being offered.

Religion A pervasive prejudice regarding religion on the part of an investigator, teacher, consultant, or therapist can detract from objectivity and competence. Whether the bias is against Jews, Muslims, Christians, or any other faith, the psychologist holding such views risks carrying out poorly conducted research, substandard teaching or training, and incompetent consulting or psychotherapy. Possessing an innate curiosity and being willing to learn about the religious teachings of one’s patients, supervisees, or students may help the psychologist to have better understanding and empathy for them as well as deliver superior services.

Prejudice based on an individual’s religious faith is particularly relevant for those psychologists who assess or provide treatment to members of the clergy. A positive bias could just as easily affect competence as a negative one. This could result in inaccurate assessments, psychological reports that omit important conclusions and recommendations, and treatment that fails to address the more difficult aspects of a patient’s behavior and dynamics because of a therapist’s positive bias about the patient. For example, a devoutly Catholic psychologist with a bias who is asked to evaluate a priest accused of molesting children may not be able to carry out an objective assessment and, as a reslt, may misperceive or deliberately minimize signs of psychopathology when interpreting test results or writing a psychological report.

Disability To competently serve, teach, or investigate those with physical or mental impairments, psychologists must be aware of the array of factors and special needs unique to each disability. People with special needs include those with sensory impairments (e.g., blind or hearing impaired), chronic pain or degenerative diseases, HIV/AIDS, spinal cord or other severe injuries, fatal illnesses, or other conditions impairing daily functioning. People with special needs also include those with mental disorders, such as mental retardation, pervasive developmental disorders (e.g., Autism spectrum disorders), schizophrenia, dementias, or other brain disorders from head injuries or illness (e.g., stroke, heart attack). Remaining competent in working with such specialized populations requires participating in ongoing education and remaining up to date on the current research.

Socioeconomic Status Psychologists must sometimes acquire special skills for working with those from lower or higher socioeconomic groups. An example would be the therapist who must adjust his treatment objectives and strategies to suit the needs of a woman living in a housing project who has been physically abused by her husband. She may have an urgent need for protection and safe refuge, along with her children, and may need to move to a woman’s shelter. This patient may have little interest in developing psychological 153

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insight into the causes of her problems that fails to address her immediate needs. It may constitute incompetent practice for the therapist to disregard the pressing necessities of life in favor of focusing on history taking or developing psychological insight. In fact, by disregarding such exigencies, the therapist may run the risk of jeopardizing the very safety of the patient he is attempting to help. Researchers investigating those of lower or higher socioeconomic status should take steps to educate themselves about attributes of these groups that might affect the validity of the results. Such steps might include familiarizing oneself with dialects, values, dress, nonverbal cues, interpersonal style, relationships, and prejudices of the group being studied—all of which could affect the research hypothesis, experimental design, data gathering, interpersonal relationship with the investigator, or other aspects of the study. Failure to pay attention to these factors could have direct consequences on the investigation and ultimately the knowledge base by making a contribution that is biased, distorted, or inaccurate in some other way. One such example of incompetence in a research setting follows, in which the investigator is initially unaware of his blind spots that result from a traumatic experience. Case Example 5 A male researcher, who recently experienced a painful and costly divorce, has been investigating gender roles in marriage. He currently is gathering data for his study, interviewing husbands and wives and rating short essays that they have written on the topic of marital satisfaction. He finds that he is becoming increasingly impatient and irritable while listening to the wives describe their perception of their roles within the marriage and consistently is rating their written essays with a negative bias, as confirmed by his coinvestigator. He slowly arrives at the conclusion 3

that he may be unable to competently and objectively gather data and interpret results at this time. This is because he is suffering from depression because of his recent divorce and has residual angry feelings at his ex-wife that he has generalized to the female participants in his research project. He decides to withdraw from the data gathering temporarily and begin psychotherapy to address his mood disorder and resentment. Fortunately this investigator had sufficient selfinsight to benefit from consultation with his coinvestigator and to terminate his involvement with the project. He also had the good judgment to seek needed treatment rather than to just wait for his depression to “pass.” The topic of ethics in research is thoroughly addressed in Volume 2, Chapter 16, in this handbook. GENERAL CONCEPTS ABOUT ACHIEVING AND MAINTAINING COMPETENCE Psychologists who practice and consult generally complete doctoral studies at a regionally accredited institution (e.g., university or professional school of psychology) and then have a period of professional supervised experience or internship. Then they must pass the Examination for Professional Practice in Psychology (the same content in all 50 states and Canadian provinces, but with different passing scores) and show evidence of a thorough knowledge of the state laws regulating clinical practice.3 After completing these steps, one holds the license to publicly claim the title psychologist and offer professional services to consumers for a fee (e.g., individual or group therapy, assessment, clinical supervision of trainees, forensic activities, management consulting). Licensing boards can ensure only that psychologists meet the minimal standards of competence, but they do not ensure excellence. Professional judgment on the part of psychologists

The APA allows its members to claim a doctoral degree from a nonregionally accredited institution only if it serves as the basis for licensure in the state. A psychologist who moves to another state, at some point, may no longer claim the doctoral degree in the new state if his or her degree is from a nonregionally accredited institution of learning. It is possible for a professional school of psychology or university to be licensed or accredited by a particular state but at the same time, fail to meet the standards of the regional accrediting body, such as the North Central Association of Schools and Colleges, the Western Association of Schools and Colleges, and so on.

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always remains an essential ingredient in the ongoing quest for superior mastery of psychological skills. Those who work in academic or health care settings as teachers, researchers, or administrators or in some other nonclinical capacity normally do not require a psychology license. Although they may not directly offer clinical services to the public for a fee, they must be mindful of maintaining competence in their chosen area.

Vanity Credentials Credentials, degrees, certifications, and honors should be awarded on the basis of academic or other work that has been performed and appropriately evaluated by a legitimate entity. At times one may observe vanity credentials listed on resumes, curriculum vitae, the Internet, or promotional materials extolling the supposed skills and knowledge of the psychologist, when, in reality the psychologist’s work was never reviewed adequately and the primary requirement for receipt of the credential was the payment of a fee.

Maintaining Competence Those holding a license to practice psychology generally are required by their home state to maintain and upgrade their knowledge and skills during each renewal period of their license. This maintenance normally consists of accruing a certain number of credit hours by attending lectures and workshops on psychological topics, participating in online webinars, reading books and articles, or participating in other experiences that are coordinated with mandatory continuing education programs (e.g., hospital grand rounds presentations). In addition, many psychologists maintain their skills by regularly consulting with peers—that is, other clinicians, fellow supervisors, researchers, management consultants, and teachers. When these peer-to-peer consultations, whether one on one or in groups, are carried out in a collaborative and compassionate manner, they can be extremely helpful and enhance competence. Participating in such consultations also may increase self-awareness on the part of clinicians, encouraging therapists to have a reflective practice, striking an adequate balance between humility and confidence and a desire to seek out feedback on

performance. This is discussed more fully in Chapter 19 of this volume dealing with professional liability and risk management. Maintaining sound mental health is an inherent part of competence, requiring a degree of selfawareness about the normal human experiences that may affect how one carries out work. This includes such things as personal life transitions and stresses (e.g., birth of a child, deaths of family members or friends, divorce), changes in mood, the impact of physiological disorders (e.g., illness, chronic pain conditions), medication side effects (e.g., impaired cognitive functioning), and other experiences that compromise one’s ability to work effectively. Psychologists may be subject to the same frailties as others when suffering emotional distress, including dependency on alcohol and other chemical substances, poor professional boundaries with clients and patients, compulsive sexual behavior, and excessive sensation seeking or risk taking. They also may suffer from untreated personality disorders or other conditions yet procrastinate in getting treatment, even though their competence is being diminished. Any preexisting condition may become exacerbated as the daily work of psychologists takes its toll. This may include secondary posttraumatic stress disorder (PTSD) from listening to graphic details of patients’ traumatically abusive experiences or the stress of having too many challenging patients at one time—such as suicidal patients, children being molested by family members, or those with borderline personality disorder who require extra attention or emergency hospitalizations. How one navigates these difficult waters was addressed by Norcross and Guy (2007), who affirmed that psychologists must learn to leave their work at the office and embrace life habits that are restorative in nature, including seeking consultation or psychotherapy. Part of being self-aware about one’s competence may include having a lifestyle that promotes good mental health—adhering to the advice that we give to our patients. This includes the following therapeutic habits: (a) adequate sleep, (b) regular physical exercise, (c) regularly engaging in play or fun activities (e.g., hobbies, social activities), (d) nurturing the relationship with one’s significant other, (e) engaging in friendships and other social activities, and (f) any 155

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other activities and life habits that are critical for sustaining good mental health. These matters are addressed more fully in Chapter 7 of this volume, dealing with emotional competence and well-being. THERAPY Psychotherapy has been defined as a method of working with patients and clients to assist them to modify, change, or reduce factors that interfere with effective living (Fabrikant, 1998). According to a metastudy of 50 publications, carried out by Grencavage and Norcross (1990), there are six common factors in psychotherapy: (a) the development of a therapeutic alliance, (b) the opportunity for catharsis, (c) the acquisition and practice of new behaviors, (d) patient positive expectations, (e) beneficial therapist qualities, and (f) provision of a rationale for the patient’s problems. A detailed review of common factors in psychotherapy may be found in the conclusions and recommendations of APA’s Division 29 Task Force on empirically supported therapy relationships (Ackerman et al., 2001). The APA and the Council of Specialties in Professional Psychology (CSPP; initially sponsored by the APA and the American Board of Professional Psychology [ABPP]) have identified two levels of competent practice. Those offering psychological services may achieve the following levels of competent practice: (a) proficiency (i.e., possessing adequate knowledge and skills to practice psychology), and (b) specialty (i.e., possessing competence in a particular area of psychological practice).

Proficiency Proficiency was defined by the APA (1995) as a “circumscribed activity in the general practice of professional psychology or one or more of its specialties.” Attaining proficiency consists of meeting the following three criteria: (a) distinctiveness, described as a body of knowledge and professional application relevant to one or more parameters of practice; (b) acquisition of knowledge and skills, described as a core of psychological knowledge and skills, including specific methods for how psychologists typically acquire same; and (c) parameters of practice, described as the substantial, specific, and 156

distinctive psychological knowledge and skills providing the bases for service with respect to at least one of the essential parameters of practice. These parameters include the following: (a) specific population, (b) psychological, biological, or social problem, and (c) procedure and techniques.

Specialty A specialty is defined by the CSPP as “a defined area of professional psychology characterized by a distinctive pattern or configuration of competent services to specified problems and populations” (see the CSPP website: http://cospp.org). It is based on broad and general education and training in the science and practice of psychology, and it requires the acquisition of advanced knowledge and skills from an accredited doctoral program (and possibly additional organized sequence of education and training in postdoctoral programs), followed by an examination designed to assess competence, independent of the state licensing exam. An important organization related to specialties is the American Board of Professional Psychology (see http://abpp.org), incorporated in 1947. It provides the following rationale for specializing in its mission statement: to increase consumer protection by examining and certifying psychologists who demonstrate competence in approved specialty areas. Currently, 13 specialty areas are recognized by ABPP: (a) clinical child and adolescent psychology, (b) clinical health psychology, (c) clinical neuropsychology, (d) clinical psychology, (e) cognitive and behavioral psychology, (f) counseling psychology, (g) couple and family psychology, (h) forensic psychology, (i) group psychology, (j) organizational and business consulting psychology, (k) psychoanalysis in pychology, (l) rehabilitation psychology, and (m) school psychology (CSPP, 2009). Each specialty area has its own formal definition, required levels of specialty training (doctoral or postdoctoral level), and specialty board certification (e.g., source of board certification, such as the American Board of Group Psychology for group psychologists).

Certification in Substance Abuse Treatment The APA Practice Organization’s College of Professional Psychology (COPP) certifies licensed

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psychologists in the treatment of those with alcohol and other psychoactive–substance use disorders. This is useful for therapists verifying their expertise to third-party payers (e.g., health insurance, Medicare) when treating chemically dependent patients (APA, Practice Organization, 2010). To become certified, candidates for such certification must have treated alcohol and other substance use disorders as a licensed psychologist for at least three years, must provide health services in psychology, and must pass COPP’s examination.

Prescription Privileges Few states currently permit psychologists to prescribe medications as an adjunct to rendering clinical services, although there has been active lobbying on the part of some psychologists to change this situation. In 1997, the COPP submitted a proposal to the APA Council of Representatives presenting a rationale for such a change (Bricklin, 2000). In what might be seen as a premature move, it also proposed to catalyze psychologists’ interest in prescribing by overseeing the development of an examination that would be offered in states and Canadian provinces to grant prescriptive authority whenever the laws changed to permit such activities. As a result, COPP developed the Psychopharmacology Examination for Psychologists, which will constitute the final hurdle for those wishing to prescribe. Candidates for the exam must also possess a doctoral degree in psychology, provide health services in psychology, possess a currently valid license in good standing to practice psychology independently, and must successfully complete a postdoctoral program of education in an organized program of intensive didactic instruction.

Evidence-Based Practice, 2006). This evolved from a similar concept developed by the Institute of Medicine 5 years earlier and has as its purpose to “promote effective psychological practice and enhance public health by applying empirically supported principles of psychological assessment, case formulation, therapeutic relationship, and intervention” (Institute of Medicine, 2001, p. 147). The APA task force considered “best available research” to include scientific results derived from intervention strategies, assessment, clinical problems, and patient populations in both laboratory and field settings, as well as clinically relevant results of basic research in psychology and related fields. As of this writing, the majority of treatments that qualify as evidence-based practice in psychology are cognitive— behavioral in nature, ranging from 60% to 90% of available interventions (Norcross, 2004). Eight components of clinical expertise are described in the report: ■

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Psychotherapy: Evidence-Based Practice Evidence-based practice refers to therapeutic interventions offered by psychologists that integrate science and practice, a concept that has become an important goal in current health care systems and health care policy. This practice was defined in 2006 by the APA Presidential Task Force on EvidenceBased Practice as the integration of the best available research with clinical expertise, within the context of patient characteristics, including culture, values, and preferences (APA, Presidential Task Force on

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Assessment, diagnostic judgment, systematic case formulation, and treatment planning (e.g., accurate diagnosis, setting appropriate treatment goals and tasks) Clinical decision making, treatment implementation, and monitoring of patient progress (e.g., skill and flexibility, tact, timing, pacing, framing of interventions, balancing consistency of interventions with responsiveness to patient feedback, monitoring progress) Interpersonal expertise (e.g., forming a therapeutic relationship, encoding and decoding verbal and nonverbal responses, creating realistic and positive expectations, empathy) Continual self-reflection and acquisition of skills (e.g., capacity to reflect on one’s own experience, knowledge, hypotheses, emotional reactions, and behaviors; awareness of limits of knowledge, skills, and biases affecting one’s work) Evaluation and use of research evidence in both basic and applied psychological science (e.g., having an understanding of research methodology, validity, and reliability, being open to data, clinical hypothesis generation, and the capacity to use theory to guide interventions) Knowledge of the influence of individual, cultural, and contextual differences on treatment 157

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(e.g., individual, social, and cultural variables, including age, development, ethnicity, culture, race, gender, sexual orientation, religious commitments, and socioeconomic status) Use of available resources as needed (e.g., seeking consultation; recommending adjunctive or alternative services when needed; cultural sensitivity) Formation of a cogent rationale for clinical strategies (e.g., a planful approach to the treatment of psychological problems; reliance on the therapist’s well-articulated case formulation concerning the client or patient, reliance on relevant research supporting the effectiveness of a certain treatment, if it exists)

An opposing view presented by Westen and Bradley (2005) raises the question of overreliance on evidence-based practice, arguing that empirically supported therapies often focus predominantly on brief, focal treatments for specific disorders (e.g., major depressive disorder) as defined by the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 1994). Westen and Bradley stated that evidence-based practice should consist of more than a list of empirically supported therapies for discrete disorders. They believe that a true metric for the effectiveness of therapy should be how its outcomes compare favorably to the outcomes obtained by experienced clinicians, not whether it survives a test of the null hypothesis (i.e., that it works better than nothing, or better than something intended to fail). In deciding when or whether to use evidencebased therapies, the psychologist ultimately should develop a professional rationale to support his or her decision. One should be able to cite outcome or process literature or other professionally accepted literature in making such a decision, aware that patient demographics, diagnosis, clinical setting, length of anticipated treatment, financial resources, and other factors are contributing to the decision.

Practice Guidelines APA began developing practice guidelines in 1993, covering a range of topics applying to those offering direct services to consumers as well as those who carry out research. The criteria for these practice guidelines were established by the Committee on Professional Practice and Standards (a committee of the APA Board of Professional Affairs). The first attribute cited is “Respect for Human Rights and Dignity”—underscoring the guidelines’ sensitivity to cultural, individual, and role differences among psychological service providers and their client populations, including but not limited to age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, and socioeconomic status (APA, 2002). Practice guidelines are intended to be aspirational in nature—that is, they provide suggestions, advice, and recommendations, but they do not establish rules or regulations to which psychologists must adhere. They offer help and practical guidance in best practices, but they do not raise or lower the bar established by the Ethics Code. Instead, they address many more specifics and details that any ethics code ever could, or should. Although psychologists generally would not be penalized or sanctioned for failure to comply with a particular practice guideline, they should be cautious about deviating from it and have a well-developed rationale for doing so in their clinical and forensic work. The practice guidelines are published by APA, APA divisions, or APA committees, and many of them are available online (see http://www.apa.org/ practice/guidelines/index.aspx). These guidelines are revised periodically, reflecting changes in the American culture and demographics, laws, and the nature of psychological practice. They are listed in chronological order, including the date of their adoption by APA.4 ■

Specialty Guidelines for Forensic Psychologists (APA, 1991)5

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Additional resources that psychologists might find useful are Statement on the Disclosure of Test Data (APA, 1996); Statement on Services by Telephone, Teleconferencing, and Internet (APA, 1997); Criteria for Evaluating Treatment Guidelines (APA, 2002a); Criteria for Practice Guideline Development and Evaluation (APA, 2002b); Criteria for the Evaluation of Quality Improvement Programs and the Use of Quality Improvement Data (APA, 2009a); and APA Disaster Response Network Member Guidelines (APA, 2011).

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The Specialty Guidelines for Forensic Psychologists (APA, 1991) were being revised when this book went to press and are expected to be completed by February 2012 (personal communication with Randy Otto, April 25, 2011).

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Guidelines for the Evaluation of Dementia and AgeRelated Cognitive Decline (APA, 1998) Guidelines for Psychological Evaluations in Child Protection Matters (APA, 1999) Guidelines for Psychotherapy With Lesbian, Gay, and Bisexual Clients (APA, Division 44, 2000) Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists (APA, 2003) Guidelines for Psychological Practice With Older Adults (2004) Guidelines Regarding the Use of Nondoctoral Personnel in Clinical Neuropsychological Assessment (APA, 2006) Record Keeping Guidelines (APA, 2007b) Guidelines for Psychological Practice With Girls and Women (APA, 2007a) Guidelines for Child Custody Evaluations in Family Law Proceedings (APA, 2009)

Professional organizations and entities other than the APA also have developed practice guidelines that inform practitioners about accepted standards of practice. These are commonly referred to as treatment guidelines or clinical guidelines. Examples include the American Academy Pediatrics’ Screening for Suicide Risk in the Pediatric Emergency and Acute Emergency Care Setting (2007) and the American Psychiatric Association’s Practice Guideline for the Treatment of Patients With Alzheimer’s Disease and Other Dementias (2007). Many of these practice guidelines can be found at the website of the National Guideline Clearinghouse, an initiative of the Agency for Healthcare Research and Quality (see http://www.guideline.gov/associations). Some of these entries include thorough reviews of research, and others represent consensus guidelines, summarizing expert opinions in the field.

Complementary and Alternative Medicine Psychologists and other health care professionals increasingly are offering therapy experiences that are outside the realm of conventional medicine, as described by the National Institutes of Health (NIH) National Center for Complementary and Alternative Medicine (NCCAM; see http://nccam.nih. gov/health/whatiscam/overview.htm). These include

complementary medicine (interventions that are used in addition to conventional medicine) and alternative medicine (interventions that are used in place of conventional medicine). Integrative medicine combines treatments from conventional medicine, complementary medicine, and alternative medicine that have evidence of safety and effectiveness, such as using hypnosis for pain control, nausea, or other symptoms. The NCCAM is a federal agency for scientific research whose mission is to explore complementary and alternative healing practices and interventions. In addition to studying whole medical systems, such as homeopathic medicine, naturopathic medicine, traditional Chinese medicine, and Ayurveda, it also studies the following four domains: (a) mind–body medicine (e.g., patient support groups and cognitive behavioral therapy, meditation, prayer, art therapy); (b) biologically based practices (e.g., herbs, foods, vitamins); (c) manipulative and body-based practices (e.g., chiropractic, osteopathic manipulation, massage); and (d) energy medicine, consisting of biofield therapies (e.g., qi gong, Reiki, therapeutic touch) and bioelectromagnetic-based therapies (e.g., electromagnetic fields). Mental health providers who are competently trained to use these interventions must provide patients with adequate information about safety and effectiveness in advance, including information about the means for evaluating effectiveness and monitoring potential harm. Patients should be informed of more conventional treatments of known effectiveness because these may pose less of a risk. This information should be provided regardless of the patient’s enthusiasm for participating in such a treatment or indifference to receiving thorough informed consent. Providing such informed consent supports patient autonomy, protects patients from harm and exploitation, and protects practitioners from complaints or grievances by a patient who feels that he or she has been harmed through the use of a nonvalidated technique or feels that he or she has paid for a useless intervention promoted by the psychologist.

Remaining Within One’s Boundaries of Competence The first ethical standard in Section 2 of the Ethics Code, Competence, Standard 2.01, clearly states that 159

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psychologists must practice within their boundaries of competence, whether doing therapy, research, teaching, supervising, management consulting, or any other professional activity. The metrics for competence stated in this standard are formal education, training, supervision, consultation, continuing education and independent study, and professional experience. Deciding how much training is enough before employing a new technique or strategy is an important matter of professional judgment on the part of the psychologist. Certainly, the neophyte therapist who has attended a 2-hour seminar on biofeedback training would not likely be considered competent to begin treating patients with this modality. Additionally, evidence suggests that mental health professionals are not immune to faddism— considering the inappropriate use of psychosurgery in the 1940s and 1950s and facilitated communication in the 1970s and 1980s. Furthermore, improper use of hypnotic techniques for treating adults with repressed memories of childhood abuse in the 1980s and later is another example of questionable competence. Fortunately, as time went on, therapists became more prudent and competent in using hypnosis in both diagnosing and treating adults with repressed memories of childhood trauma. We could argue that venturing beyond one’s area of competence is something that therapists may do, to some extent, every time they spontaneously develop a creative metaphor or novel strategy when working with a particularly unusual or challenging patient. A therapist may decide that the empirically based approach may not fully address the needs of a particular patient, at a particular stage of treatment, who is dealing with a particular symptom or dilemma. As a result, the therapist may employ a novel or imaginative intervention. The Ethics Code was not intended to stifle the use of creative therapeutic approaches that the therapist might not have studied in a journal or book. Rather, its intent is to remind therapists to always reflect on the possible attendant risk of harm when a novel strategy or tactic is employed and to secure informed consent in advance of treatment (more information can be found in Chapter 12 of this volume). If using an 6

unusual therapeutic intervention, the therapist bears the responsibility to inform clients and patients in advance and to avoid actions that could be harmful to or exploitative of them. In the author’s view, these two ethical concepts—providing informed consent and avoiding harming or exploiting others— accounts for the vast majority of the 89 ethical standards making up the Ethics Code (Nagy, 2011). An extreme and tragic example of an ill-founded therapeutic intervention that was far outside the standard of care involved two Colorado practitioners in 2000. The two “therapists” were Connell Watkins, an unlicensed and nonregistered practitioner, and Julie Ponder, a licensed marriage and family therapist from California. The two women carried out an intervention with a 10-year-old girl, Candace Newmaker, whom they determined suffered from attachment disorder, and devised a treatment strategy that was fatal (Advocates for Children in Therapy, 2003). As the child’s mother and a pediatric nurse practitioner looked on, the two therapists provided the young child with a supposedly corrective “rebirthing experience.” They required her to assume a fetal position on the floor, wrapped her up tightly in a flannel sheet, piling many pillows on top, and added their own weight on top—a combined total of 673 pounds. In spite of panicky cries from the child that she could not breathe, the therapists continued the treatment until she fell silent, 50 minutes into the session. They waited an additional 20 minutes, urging the child not to be a “quitter” in the rebirthing process. When they finally checked on her, she had suffocated, and all attempts to revive her were unsuccessful. To be sure, rebirthing therapy, the way Watkins and Ponder applied it, may have been innovative, but no institutional review board would have approved such a dangerous intervention if it had been submitted as a clinical research protocol, and no research existed that would support exposing participants to such a traumatic and risky experience.6 At times, a psychotherapist may ethically venture beyond his area of competence, when other more competent therapists may not be available, as addressed in Standard 2.01(d), Competence. This situation

This was excerpted from the author’s book Essential Ethics for Psychologists: Understanding and Mastering Core Issues (Nagy, 2011).

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invokes the general principle of Beneficence and Nonmaleficence—to help but at the same time to avoid harming recipients of their services. Consider the psychologist practicing in a rural area of Missouri who receives a telephone call from an anxious mother of an adolescent girl who is losing weight, has drastically reduced her intake of food, is exercising for 3 hours daily, has amenorrhea, has losses of consciousness, and frequently goes online to learn about more effective ways to lose weight. This psychologist may be unskilled in treating anorexia in adolescents but recognizing the health risks, may agree to meet with the woman and her daughter and serve as the first contact in facilitating medical care for the adolescent. Hopefully, the psychologist will refer the woman and her daughter to a nearby hospital or local family practitioner for evaluation and treatment. If there are no other treatment options locally, the psychologist may ethically provide treatment to the girl and her family if he increases his competence—for example, relying on telephone or online consultation with those knowledgeable about the disorder, conducting independent study of available literature and resources, attending workshops and seminars on the topic later on, and pursuing any other means to increase his knowledge and skills. In nonemergency situations in which practitioners may be in short supply, potential patients may seek services for which the therapist lacks adequate training. How far out of his or her competence comfort zone a therapist may venture is a question that must be addressed in these situations. Case Example 6 A psychologist is contacted by a 14-year-old girl who has a strong desire to learn hypnosis for improving her study skills in school. He is tempted to accept this patient, even though he has no formal training in hypnosis. He has read several journal articles including hypnotic scripts but never had face-to-face training, supervision, or consultation. However, he is aware of relaxation techniques and diaphragmatic breathing. He wonders if he should accept this patient for hypnosis simply because she is highly

motivated and holds strong beliefs about its effectiveness. Administering hypnosis in this situation would be an example of overestimating the psychologist’s clinical skills to satisfy a patient’s request. In this case, the psychologist was competent to provide nonhypnotic interventions that likely would help improve the girl’s study skills without risking the use of hypnosis, for which he was not trained, and incurring any untoward effects that might result from it. Consider the following example of a nonemergency situation in an underserved area. Case Example 7 A psychologist is contacted by the wife of a 59-year-old man who is experiencing minor problems of memory in language and daily activities. The psychologist has never treated an individual with mild cognitive impairment before and is unskilled in differentially diagnosing this disorder from a mood disorder with cognitive–emotional features or a medical condition. She knows that there is a multidisciplinary clinic specializing in the treatment of incipient dementia in a city that is 125 miles away, and she wonders if she should attempt to treat the patient herself or simply refer him to that clinic for a comprehensive evaluation. She decides to telephone the neurospychologist on staff at the clinic for advice. Both agree that a diagnostic assessment at the clinic would be best as the first step and that pending the outcome, the local psychologist could serve as a therapeutic resource to the man and his wife in combination with any treatment he might receive at the clinic. In an emergency, when other treatment options are scarce, a psychologist may ethically intervene until the emergency is resolved, as discussed in Standard 2.02, Providing Services in an Emergency. An emergency may consist of a natural disaster (e.g., an earthquake or tornado), could include an incident of domestic violence (e.g., spouse battering, 161

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child molestation, or elder abuse), or could emerge suddenly within the treatment setting of ongoing psychotherapy. Case Example 8 A therapist begins treating a Vietnam War veteran and discovers after several sessions that he was a prisoner of war (enduring many months of interrogation and torture), currently suffers from nightmares and panic attacks, is alcohol dependent, and intends to commit suicide to end all his suffering. The treating therapist has never treated a patient with such severe PTSD symptoms or imminent suicidality, and she does not consider herself competent to do so at this time and wishes to withdraw from her role as his therapist. She has already developed a beginning therapeutic alliance with the patient, however, and may be able to serve as a temporary resource, particularly if he has never been in treatment before. She sees her obligation as providing treatment to reduce the risk of suicide, if possible, while attempting simultaneously to locate a more suitable therapist or treatment facility. She also may seek a voluntary or involuntary hospitalization for the patient, refer him to a therapist who has experience with suicidal patients or those with severe PTSD symptoms if she can, or take some other step that would preserve his safety and well-being. She plans to end her role as the primary treating therapist after the patient has had an adequate number of sessions for processing transition and termination and has successfully transitioned to the new therapist or facility.

Enhancing Competence in Therapists Sometimes psychologists claim special areas of competence after completing a course of study, training, supervision, or consultation; however, it is not always clear which criteria must be met before 162

publicly making such a claim. Self-assessment can be helpful, as described by Belar et al. (2001) in clinical health psychology by presenting a template for self-assessment and a list of activities that may be completed to reach the goal of competence. Psychologists claiming areas of competence in addition to their license or academic degree should consult the APA or the professional literature to become informed about criteria to be met, including clinical experience, academic coursework, professional training, consultation, or other experiences. The erosion of competence over time rarely is monitored specifically by licensing boards or ethics committees unless the therapist receives complaints from a patient or third party. Yet it may well be true that subtle changes in therapists impair their competence or blunt their diagnostic and treatment skills simply as a function of age, life experience, or other factors. Such erosion of skills may be more apparent with major life transitions, such as the death of a therapist’s parent or spouse, or chronic pain. But therapists also should be aware of nuanced changes in their behavior that can serve as red flags of diminished competence, such as becoming careless in professional duties, taking unwarranted shortcuts, failing to write clinical notes or complete insurance papers, procrastinating in returning important phone calls or e-mails, being repeatedly late for appointments, making scheduling errors, experiencing difficulty remaining focused on a patient during the therapy hour, forgetting important patient disclosures from previous sessions, failing to maintain confidentiality with other treating health care providers, and other lapses. One way to help therapists obtain evidence of their ongoing competence is to administer an outcome measure periodically to patients (Reese, Nosworthy, & Rowlands, 2009). By soliciting feedback on a regular basis, the therapist has access to additional data about the progress of treatment. Quantifying the seriousness of depression by administering a depression inventory at regular intervals may help the therapist know whether behavioral homework assignments are more beneficial to the patient than reading a self-help book on depression. Some ways of soliciting feedback may include asking questions about the patient’s perception of the treatment and the degree of satisfaction

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about the therapy relationship, as described by Burns (2005). Burns recommended obtaining a patient’s written feedback after every single therapy session to maximize the efficiency of treatment and to help therapists become aware of any shortcomings. It is possible that psychologists (and other health care professionals) have a tendency to be overly optimistic about their ability to help others and less sensitive to their limitations (DeAngelis, 2003). According to research by Okiishi et al. (2006), the reality is that some psychologists do outperform others. They found “super shrinks” and “underperforming shrinks” when examining 71 psychotherapists. The top seven therapists had a lower dererioration rate (5%) compared with the bottom seven therapists (11%) and had significantly higher treatment gains, possibly representing the difference between “just-good-enough” competence and “excellence.” There was no evidence that therapists at the low end of the distribution were behaving unethically (e.g., engaging in contraindicated multiple relationships or allowing prejudice to interfere with their competence) or that they were likely to be reported to or disciplined by a licensing board. If we conceive of ethical conduct as being more than “risk management” (avoiding being disciplined) but also as including the aspirational or supererogatory values of striving for our highest ethical ideals, we maximize our potential for having the best outcomes while continually enhancing competence. Maintaining and enhancing competence when working in new areas of practice where established standards do not exist poses its own set of problems. This includes such domains as telehealth, performance enhancement (e.g., sports psychology), parenting coordination (assisting high-conflict postdivorce parents to fulfill their obligations to their child while complying with court-ordered recommendations), prescribing medication, and any of the alternative medicine interventions for which standards may be lacking. It is especially important to develop strategies for monitoring patient outcomes in these situations. As an example, LeVine (2007) described her experiences as a prescribing psychologist in New Mexico, relying on case studies, consultations with primary care physicians, and detailed records for monitoring patient progress.

Terminating and Referring Case Example 8 introduces the topic of determining when treatment should be ended. Standard 10.10, Terminating Therapy, informs us that psychologists should terminate therapy when it is reasonably clear the that client or patient no longer needs treatment, is not likely to benefit from having further sessions, or actually is being harmed by continuing. Examples of harm include (a) continuing treatment that is no longer needed (e.g., the therapist inappropriately introduces new topics), causing the patient with meager resources to continue paying for sessions that are not needed, and (b) fostering dependency and undermining patient autonomy in the individual who is able and ready to make the transition to independent functioning but delays doing so because of the therapist’s reluctance to end treatment. When it is time to terminate treatment, the therapist has an ethical obligation to provide pretermination counseling (unless the patient declines) and to address a variety of topics that may persist (Knapp & VandeCreek, 2006). (More information can be found in Chapter 16 of this volume.) The therapist may wish to study the patient’s entire clinical record in preparation for reviewing treatment to date, as well as individual topics with the patient. This review may include evaluating the progress that has been made in treatment, reviewing any remaining goals that might be better achieved with the help of a different therapeutic modality (e.g., a therapist with a different theoretical orientation better suited to the patient, a therapist specializing in pain management, marital therapy, group therapy, mindfulness meditation training), and addressing any issues that relate to the patient’s life after therapy has ended. Terminating treatment with a patient who moves out of state may pose a set of unique problems for the therapist. Motivated by a desire to be helpful to a patient who interrupts treatment by moving, the therapist may use a variety of resources to locate a new psychologist (e.g., going online in search of licensed practitioners in the new city, contacting the state Psychological Association’s Information and Referral Service of the new locale, searching a directory such as the National Register of Healthcare 163

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Providers in Psychology; see http://www.national register.org). But how many psychologists would further investigate whether a potentially new treating therapist in another city was impaired, had recently received a complaint from the local licensing board, or had his or her membership suspended by the APA because of a serious ethics violation? There is much that a therapist attempting to refer a patient moving to a new city cannot know about the psychological resources there, the most significant of which is the level of proficiency of supposedly competent therapists who are in practice. The therapist who makes a referral to a new psychologist and should have known about his ethical or professional violations of the past (e.g., boundary violations such as sex with a patient) could incur liability if the new therapist harms the referred patient in the course of treatment. It may be wise to share responsibility with the patient seeking treatment in another part of the country, rather than assume full responsibility for such a referral. There are times when termination counseling may be dispensed with and treatment may end suddenly because of the emergent risk of harm to the therapist. This situation may occur when a therapist has been threatened by a patient or by someone else with whom the patient has a relationship (e.g., spouse, family member, friend). Patients have been known to stalk their therapists (e.g., send a barrage of unwanted e-mails or voice mail messages, wait for them in parking lots at the end of the day), seek out their residences and monitor their activities on a weekend, and even damage their therapists’ automobiles or other property (Knapp, 2007; Tishler, Gordon, & Landry-Meyer, 2000). A therapist is not obliged to continue offering therapy if her safety becomes jeopardized, and it would not be considered abandonment for the therapist to terminate treatment in response to a threat of harm or actual harm to herself, her family, or her possessions. (More information about dealing with life-endangering patients can be found in Chapter 14 of this volume.) It may even be appropriate for the therapist to contact the local police department or retain an attorney to consider legal alternatives, such as involuntary hospitalization, a restraining order against the patient, or some other measure, as well as the inherent risks of each course of action. Such action would require careful consideration of 164

ethical and legal regulations balancing patient confidentiality concerns with therapist safety. In the face of a direct threat against the therapist (e.g., menacing e-mails), the Tarasoff duty-to-warn requirement does establish some precedent when a credible threat to a third party is disclosed in therapy and the therapist must then contact the intended victim and the police (see Tarasoff v. Regents of University of California). When the party threatened is the therapist, he or she obviously is aware of the threat but may still use his or her legal option of notifying the police. It is important always to have full awareness of current legal statutes in one’s home state in anticipation of such emergencies. ASSESSMENT Instruments of assessment commonly used by psychologists fall into the following five categories: (a) cognitive and neuropsychological testing; (b) social, adaptive, and problem behavior testing; (c) family and couples testing, (d) personality testing; and (e) vocational testing (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education [AERA, APA, & NCME], 1999). Competence in using these instruments as well as other forms of assessment is addressed by a document entitled The Standards for Educational and Psychological Testing. It consists of a glossary, three sections (Test Construction, Fairness in Testing, and Testing Applications), and 264 standards, and it provides the highest standards in the sound and ethical use of tests as well as comprehensive criteria for the evaluation of tests, testing practices, and the effects of test use (AERA, APA, & NCME, 1999). This document is somewhat unusual because its standards are prescriptive only—there are no consequences for violating them because there is no entity responsible for enforcing them. (More information on psychological assessment can be found in Volume 2, Chapter 4, this handbook.) Competent assessment includes using tests in an appropriate manner and being well informed of a test’s purpose and limitations, including reliability, validity, normative statistics, and other information

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that would inform its use. The following case presents an example of incompetent assessment, including the use of the wrong test for the job. Case Example 9 A psychotherapist who was skilled at providing therapy to highly successful businessmen was retained by the attorney of a divorced man who was litigating for a more favorable custody arrangement of his young daughter. The attorney asked the psychologist to evaluate his client and assess his parenting abilities. Unfortunately, the psychologist was not as skilled in matters of assessment as he was in providing treatment. He selected the Wechsler Adult Intelligence Scale (WAIS-IV) as the sole basis for evaluating the man in the hopes of demonstrating his superior mental capacity and then, by inference, showing that he would have the potential to provide better parenting than his ex-wife for their daughter. Such an assessment did reveal the man’s high full-scale intelligence quotient, but it failed to uncover his low capacity for empathy in parenting and proneness to intense anger reactions, two factors that would likely affect a decision to award custody. By selecting an intelligence test for the purpose of evaluating a father’s parenting ability and overall mental health and arguing that the results supported a change in custody, the psychologist actually could contribute to a child’s being placed with the less capable parent. In this hypothetical case, the opposing counsel’s psychologist addressed the flaws in selecting the WAIS-IV as the primary instrument for evaluating parenting competency, and the court ordered a new evaluation. Competent assessment includes providing adequate informed consent before beginning the evaluation (except in legally mandated situations, when consent is implied as in routine education testing or in decisional capacity situations), selecting the appropriate test (most recent edition), only using a test for which the psychologist has adequate knowledge and

training, ensuring proper test conditions, scoring appropriately or selecting a reputable scoring service, and explaining the results to the client in a manner that he or she can comprehend. When interpreting results, psychologists must consider various test factors such as the client’s test-taking abilities and other characteristics—situational, personal, linguistic, and other cultural differences that might affect psychologists’ judgments or the accuracy of their interpretations (Standard 9.06, Interpreting Assessment Results). Interpretation also includes releasing the client’s actual test data to the client, if requested, as long as there is little or no risk of harm. The conditions for releasing test data are addressed by Standard 9.04, Release of Test Data, and by Federal Law, in the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Ethics Code regulates who may competently administer psychological tests, and clearly prohibits psychologists from delegating professional tasks to unqualified persons (e.g., clerical persons, untrained supervisees). It also requires those who develop tests and other assessment techniques (e.g., structured clinical interview) to use appropriate psychometric procedures and current scientific or professional knowledge for test design, standardization, validation, elimination of bias, and recommendations for use (see Standard 9.05, Test Construction). CLINICAL SUPERVISION Although the topic of supervision is covered in detail in Chapter 13 of Volume 2 in this handbook, some basic concepts are addressed here. Clinical supervision of the therapist-trainee is the final hurdle for aspiring psychologists before taking the licensing exam and increasingly is being addressed as a professional activity unto itself requiring specific training (Falender & Shafranske, 2004; Haynes, Corey, & Moulton, 2003; Thomas, 2010). A state licensing board or ethics committee also can mandate supervision in cases in which the psychologist, a licensed practitioner, has violated an important ethical or legal rule. Competence in supervision is addressed by the Association of State and Provincial Psychology Boards, which lists the following seven 165

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general areas: organized sequence of training, breadth and depth of training, hour requirement, supervision, supervisor qualifications, training sequence, and setting (see http://www.asppb.org). Thomas (2010) described two examples of common supervisory errors that may negatively affect the professional relationship. The first one involves going beyond the normal boundaries of supervision by being overly inquisitive about the trainee’s private life (e.g., focusing on his family of origin, sexual history, and other matters that go well beyond topics that the trainee expects to confront according to informed consent at the outset). The second includes quietly and implicitly altering the supervisory relationship by transmuting it into psychotherapy (e.g., gathering inappropriate history during the supervisory hour, encouraging inappropriate selfdisclosure and catharsis). TEACHING Those engaged in teaching at the high school, college, and graduate levels and beyond are guided by all of the General Principles of the Ethics Code, but the following four principles are particularly relevant: Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; and Principle E, Respect for People’s Rights and Dignity. (More information can be found in Volume 2, Chapter 12, this handbook.) Section 7 of the Ethics Code, Education and Training, contains seven ethical standards, many of which pertain directly to competence. Also included in these standards are the general themes of informed consent and avoiding multiple role relationships (e.g., sexual relationships with students and supervisees, the dual role of student and mandated group therapy participant).

Accuracy in Describing Education and Training Programs and in Teaching Competent teaching includes providing accurate descriptions at the outset about the content and nature of the learning experiences to be encountered, as stated in Standard 7.02, Description of Education and Training Program, and 7.03, Accuracy in Teaching. This may include informing 166

students, trainees, or workshop participants about the didactic and experiential aspects of the course, training goals and objectives, and requirements that must be met for satisfactory completion. Teachers also must offer a course syllabus that accurately portrays the subject area to be covered and the nature of course experiences. Teachers are obligated to present psychological information and knowledge in an accurate fashion, separating their bias or personal views from factual representations, as needed.

Assessing Performance Competent teaching and training includes competently assessing the learning that has been acquired. According to Standard 7.06, Assessing Student and Supervisee Performance, psychologists must establish a timely and specific process for providing feedback to students and trainees, and this process must be disclosed at the outset. This same standard requires teachers to base their evaluations on actual performance, not on such extraneous factors as friendly feelings, sexual attraction, or prejudice based on cultural or gender identity or other personal variables that may influence objectivity.

Avoiding Harmful Multiple Role Relationships Many standards in the Ethics Code address multiple role relationships and the potential for damage that may accompany some of them. In particular, Standard 7.05, Mandatory Individual or Group Therapy, helps teachers, professors, and supervisors avoid a unique form of harmful multiple role relationships with students. Some training programs require students to participate in individual or group therapy as a part of their graduate education experience. This standard was created to ensure that faculty who evaluate students’ academic performance never concurrently play the role of individual or group therapist to the same individual(s). The roles of professor and group therapist are so discretely different, requiring differing informed consent and competencies, that they must never be played by the same individual at the same time. This standard also clearly mandates that students may select a therapist who is not personally affiliated with the academic institution.

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MAINTAINING BOUNDARIES WITH PATIENTS, STUDENTS, AND TRAINEES Therapists, teachers, and supervisors have an ethical responsibility to maintain and model appropriate boundaries in their professional roles. There can be a heightened risk of impaired competence as well as harm and exploitation when a psychologist introduces a secondary role, such as business partner, coauthor, employee, friend, or lover. For example, the professor who develops special affection for a particular student may no longer be objective in evaluating or grading her, to the detriment of other students in the class or program. The topics of maintaining boundaries and avoiding harmful multiple relationships are explored in detail in Chapters 9 (dealing with boundaries) and 11 (dealing with sexualized relationships) of this volume, but they are introduced here as they pertain to competence. Not all multiple roles are harmful, and what may be acceptable in one role likely may be inappropriate in another. A professor might invite a group of students to her home for a barbecue at the end of the semester, but a psychotherapist would not normally engage in such social activities with current patients. A supervisor might possibly agree to coauthor a journal article or a book with someone with whom he has just completed a year of supervision. A therapist who has just terminated treatment with a patient, however, would be unlikely to do so, depending on the probability that the former patient might relapse and desire additional treatment and other factors. A general rule for psychologists maintaining optimal competence and objectivity is to be cautious about initiating or accepting a secondary or tertiary role in addition to their primary professional one. This does not prohibit psychologists from developing friendly feelings, and it does not lengthen the list of unethical acts by declaring that every supervisor who has lunch with his supervisee has necessarily committed an unethical act. Rather, it raises the key question of “whose needs are being met?” by introducing an additional role (e.g., social) to the primary professional one. When the psychologist is the one whose needs are primarily going to be gratified by introducing a secondary role, he must be

cautious about implementing an additional role to the primary one. The literature is filled with examples of exploitation and its harmful aftereffects to those in a subordinate position by psychologists who have participated in a sexual relationship with them, whether or not the psychologist was in love, was a sexual predator, or had some other motive (Gabbard, 1989, 1995; Holroyd & Brodsky, 1977; Pope, 1994, 2000; Pope, Sonne, & Holroyd, 1993; Pope & Vasquez, 2007; Pope & Vetter, 1991; Thomas, 2010). (More information on this topic can be found in Chapter 11 of this volume.) Psychologists in a professional relationship are ultimately responsible for deciding about the ethicality of engaging in a multiple role relationship, whether they or others have chosen to initiate it. A student, patient, or supervisee may not have the professional competence, professional experience, or objective judgment to make a decision about beginning a secondary relationship in addition to the primary one. And the Ethics Code and state or federal law regulate only the behavior of the psychologist, not that of patients, students, or supervisees—unless they happen to be members of the APA or are licensed mental health providers. Kitchener (1988) developed three guidelines for helping psychologists determine when commencing a multiple-role relationship would increase the probability of harm and, hence, should be avoided. They are as follows: (a) as the incompatibility of expectations increases between roles, so will the potential for harm; (b) as the obligations associated with different roles diverge, the potential for loss of objectivity and divided loyalties increases; and (c) as the prestige and power differential between the professional’s and consumer’s roles increase, so too does the potential for exploitation. According to Kitchener’s guidelines, psychologists should avoid engaging in the questionable relationship (e.g., anticipated multiple role) as the risk of harm increases. Others have addressed the decision-making process concerning embarking upon a multiple role relationship (e.g., business media presentation, coauthorship, friendship, sex) in different ways (Gottlieb, 1993; Gutheil & Gabbard, 1993; Sonne, 2006; Younggren & Gottlieb, 2004). 167

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RESEARCH AND PUBLICATION The Research and Publication section of the Ethics Codes contains more standards than any other section. Because this topic is fully explored in Volume 2, Chapters 16 through 20, this handbook, competence in research receives less attention in this chapter.

Research The ethical standards addressing research include the following topics: obtaining institutional approval for carrying out research; obtaining informed consent from research participants; providing equitable options to clients, patients, students, and other subordinate research participants; offering inducements for participating in research; using deception; debriefing research participants; using animals humanely in research; reporting research results; and a relatively recent addition, sharing research data for verification by other investigators. Providing informed consent to research participants who are deciding whether to become involved is one of the most important phases of research. It finds its genesis in four of the five General Principles: Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; and Principle E, Respect for People’s Rights and Dignity. Transgressions in research are commonly reported in the Newsletter of the Office of Research Integrity, a branch of the U.S. Department of Health and Human Services (see http://ori.hhs.gov). One of the most destructive ethical transgressions related to research involves fraud. The following excerpt is an example of research fraud that was committed by a psychiatry research assistant whose project was funded by a National Institute of Mental Health (NIMH) grant: Case Example 10 ORI [Office of Research Integrity] found that Ms. _______________, a former research assistant, Department of Psychiatry at the University of Illinois at Chicago, engaged in scientific misconduct in clinical research supported by a grant from NIMH by fabricating data in the records of 41 patients, including dates on which she claimed to have conducted 168

interviews in certain clinics, fabricating patient consent forms and questionnaires from patients participating in the project, and submitting false information in “Study Daily Logs” that recorded each day’s events. For 3 years beginning December 7, 1998, Ms. _______________ is prohibited from serving in any advisory capacity to the PHS, and her participation in any PHS-funded research is subject to supervision requirements. Research fraud, including the fabrication of data or research results as reported here, may occur at the finest academic institutions, as graduate students and faculty members fall prey to the pressures to publish, are careless about data collection, are overcommitted with academic responsibilities, or have some other motive to commit fraud. Competence in conducting research and reporting results is of utmost scientific importance. The research outcomes contribute to the knowledge base in psychology, potentially affecting those who do clinical work, supervise, teach, and do management consulting as well as those working in any area of psychology.

Publication Competence in publishing is largely grounded in Principle C, Integrity, with an emphasis on honesty, truthfulness, and striving to keep promises and avoiding unwise or unclear commitments. The ethical standards concerning publishing address plagiarism, publication credit, and publication one’s data or results as original work more than once. Plagiarism and publication credit appeared in an early form in the first edition of the Ethics Code (APA, 1953). Assigning publication credit for a journal article when multiple authors are involved can be a complex task—deciding how to acknowledge the relative merit of contributions made by each author. And when students collaborate with faculty, or when a significant power differential emerges because of academic rank, abuses have occurred with the lower ranking author being relegated to secondary authorship even though the student might have made the primary contribution. When an article is based on the student’s doctoral disserta-

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tion, in a multiple-author article, the ethical standard requires that the student be listed as the principal author. (More information about competence in scholarship can be found in Volume 2, Chapter 15, this handbook.) USE OF TECHNOLOGY AND TELEHEALTH Psychologists are increasingly turning to computer technology for a variety of reasons—computer scoring for psychological assessment, managing the business aspects of their practice (e.g., billing), record keeping (as regulated by some state laws), conducting research (e.g., engaging research participants and gathering data by using the Internet), providing online information on a variety of topics, and even offering clinical services via videoconferencing. (More information on these topics can be found in Volume 2, Chapters 10 and 18, this handbook.) The Ethics Code rarely seems to address competence in these areas, and the words information technology, computer, online, website, and e-mail are nowhere to be found in the 2002 edition. However, it does discuss “electronic transmission” in four standards (3.10, Informed Consent; 4.02(c), Discussing the Limits of Confidentialtiy; 5.01(a), Avoidance of False or Deceptive Statements; and 5.04, Media Presentations) as well as in the Introduction and Application Section. Future revisions of the code are likely to include standards that address competent rendering of psychological services that are assisted by technology.

Computers in Clinical Work For many years, computers have assisted clinicians in providing biofeedback training to patients suffering chronic pain, headaches, Reynaud’s syndrome, and other maladies. Recent clinical research on neurofeedback, also known as EEG biofeedback, is helping in the development of interventions for patients with behavioral problems, such as attention deficit hyperactivity disorder, learning disorders, and certain sleep problems. Computer systems, including personal digital assistants and cellphones, are being used for patients who desire to log symptoms as they occur throughout the day as well as therapeutic responses as learned in psychotherapy, for those suffering

eating disorders, obsessive–compulsive disorder, depression, and anxiety disorders, to name a few. More recently clinicians have been turning to computers to create virtual reality worlds for hospitalized patients with serious burns who must undergo painful debridement and changes of dressing as a part of treatment (Hoffman, Patterson, & Carrougher, 2000). Virtual reality systems also are being used to treat a variety of anxiety disorders such as phobias—fear of flying, fear of enclosed spaces, and so on. Competent training and ongoing consultation, as needed, is important as a prerequisite for carrying out these novel applications using computer technology. As the potential for benefiting patients is vastly increased by means of using powerful instrumentation, such as computers that create authentic virtual reality experiences, so too may the potential for harming patients increase as well. Behavioral telehealth refers to the use of technology to deliver mental health care, including transmissions channels (telephone lines or high-speed connections) and devices (telecommunication devices such as telephones, computers, modems, videophones, etc.; Maheu, Pulier, Wilhelm, McMenamin, & BrownConnolly, 2005). Maheu et al. (2005) included a broad array of terms to be mastered when referring to telehealth activities—e-counseling, cybercounseling, cybertherapy, teletherapy, telemental health, telepsychiatry, e-therapy, and behavioral e-care. The use of telephones, e-mail, videoconferencing, and other means of electronic communication by psychologists can indeed be useful for those who live in remote areas; are ill, elderly, disabled, or institutionalized (e.g., prisoners); or otherwise are unable to have face-to-face psychological treatment. (More information on the ethical issues related to telehealth can be found in Volume 2, Chapter 10, this handbook.)

Other Areas Competence in the courtroom is an area in which psychologists rarely have had much formal education before they receive their first subpoena, although there is an increasing trend to include law-related courses in graduate training. There is much to learn about being an expert witness, fact witness, or percipient treating expert, and how to competently discharge those responsibilities in a judicial procedure. 169

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Before venturing into the forensic arena, psychologists should attend workshops or take courses. Psychologists who are interviewed by journalists in the print or electronic media, or who regularly appear on radio, television, or the Internet are well advised to seek education and training in these areas. (More information on dealing with media psychology can be found in Volume 2, Chapter 11, this handbook.) TRANSITIONING TO NEW AREAS OF COMPETENCE Sometimes psychologists wish to change their area of practice, such as (a) the psychotherapist who wishes to move into the field of management consulting, or vice versa; (b) the group therapist who wishes to specialize in sports psychology and performance enhancement; (c) the researcher working in a university setting who desires to assess or treat patients; (d) the neuropsychologist who wishes to specialize in forensic psychology; or (e) the clinician who wishes to add hypnosis or biofeedback training to her repertoire. Each of these situations requires the psychologist to acquire a basic body of skills and knowledge before attempting to assume the new responsibilities. In some cases, the change might require additional coursework, supervised professional experience, and a written examination, such as in the case of the researcher turned licensed practitioner. In other cases, the psychologist may simply need additional study and training, extensive consultation with a psychologist already proficient in the new area, or other education experiences addressing current issues relevant to competence, such as in the case of the licensed neuropsychologist wishing to specialize in forensics. The range of professional competence within psychology is sufficiently broad that expertise in one area does not necessarily readily translate into another. Someone may be adept at treating certain personality disorders but have little awareness of the highly adversarial nature of the forensic setting or how to best serve as an expert witness in rendering courtroom testimony before a judge and a jury. A psychologist contemplating passage into new territory is wise to consult not only those already experienced but also the appropriate APA division for guidance about how to best go about this transition. 170

ETHICAL TRANSGRESSIONS—EXCEEDING ONE’S COMPETENCE COMFORT ZONE Practicing outside one’s area of competence can be a distressing experience for both the psychologist and client or patient. This situation may emerge unpredictably, such as the scenario in Case Example 8. Other situations in which practicing beyond one’s area of competence may occur follow: ■

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Being the sole practitioner in a rural area and being expected to treat anyone seeking your services, regardless of your education, training, supervision, or clinical experience Taking a brief workshop or training session in a new modality of treatment and attempting to employ it with a particularly challenging patient without consultation or supervision Suffering a physical disorder (e.g., chronic pain) or mental disorder (e.g., major depression) and attempting to continue fulfilling your psychological duties Using, scoring, and interpreting a psychological test on which you have little or no experience or training and for which you have never read the manual Being in a deposition or providing court testimony and encountering a clever attorney who induces you to make statements or judgments about an individual that you cannot support Being encouraged by an attorney who has hired you to take positions of advocacy on behalf of her client when you may feel uncertain about doing so Supervising a trainee in an area in which you yourself are not proficient Becoming overly friendly with a supervisee and losing your ability to provide objective and competent supervision Being overly enterprising in the business aspects of developing your independent practice, and claiming competence in assessment and treatment when you lack adequate knowledge and skills Dealing with situations best described as outliers, such as being proficient in marital therapy but never having encountered a raging and potentially violent husband in your office, face to face Paying research participants too much money as an inducement, resulting in coercing their

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engagement in the protocol and possibly biasing the data Teaching a course or seminar in which you carelessly make inaccurate statements, misstate the research, overgeneralize, oversimplify, minimize, exaggerate, spin, or otherwise distort the information that you present Transitioning to a new area of competence such as the psychotherapist who wants to begin a specialty in management consulting, but fails to take coursework, do the requisite study, or obtain consultation or supervision.

It is clear that there are many reasons why a wellintentioned and ethically observant psychologist might stray beyond the boundaries of his or her competence, as discussed above. There are consequences for both the client and as discussed above the psychologist when this happens.

Consequences for the Client or Patient Sometimes individuals may feel or be harmed by a psychologist who exceeds her boundary of competence, particularly when they have suffered a tangible loss due to an improper technique or procedure. This can be a financial loss, such as continuing to pay for ongoing treatment with an incompetent therapist instead of being referred elsewhere, or some other type of loss that is experienced as harmful or destructive. One example would be a court-ordered psychological evaluation of divorcing parents who are in litigation for child custody (as described in Case Example 9 earlier in this chapter). Lapses in competence might include any of the following: using inappropriate means of assessment, spending significantly more time assessing one parent than the other, making obvious omissions in the assessment procedure, making errors in scoring and interpreting tests, making inaccurate statements in a psychological report, or making inaccurate statements in a deposition or court proceeding. The psychologist who performs in a substandard manner may negatively affect the outcome of a custody settlement—harming both the child and the parent. The child might be harmed if placed with the less competent parent and subjected to abusive or neglectful parenting. The more

competent parent may be harmed by an unwarranted unfavorable decision by the court resulting in a reduction in visitation rights or loss of physical or legal custody. Child custody evaluations are inherently stressful for parents, children, extended family members, and other participants. They can lead to ill feelings and strained relationships among parents who, in most cases, will be working together to raise the children after a court decision is made. For this reason, in addition to carrying out the evaluation competently and accurately, a good psychologist will try to minimize harm by having a thorough informed consent process that is ongoing throughout the evaluation, including explaining decisions clearly; ensuring that collateral contacts understand how their information will be used; and, in general, making an effort to minimize the stress of the process. As a result, the parents will understand the steps in the process and the reasons why things are being done the way they are, and they will feel secure that their concerns will be heard. Another example would be the male therapist who has a difficult ongoing life stress and then becomes overinvolved with a challenging patient, such as a young, flirtatious woman diagnosed with borderline personality disorder. Consider the therapist who has recently experienced a difficult and painful divorce and now succumbs to the seductiveness of his new patient, develops a sexual relationship with her, stops treating her but continues the relationship, and then ends the romantic relationship some months later. He diminished his competence the moment he acted on the sexual attraction, even though his intent may not have been to exploit the patient in any way. By becoming sexually involved, he has severely eroded his objectivity and ability to competently treat her. By discontinuing treatment, he has truncated her therapy in the interest of pursuing the love affair and likely has severely damaged her ability to trust future therapists or treatment settings. By finally ending the sexual relationship and rejecting her, he gives the former patient reason to feel betrayed, angry, depressed, and even suicidal. Even if this scenario had turned out otherwise— with no sexual relationship—the potential still exists for impaired competence when the psychologist internally responds to feelings of sexual attraction. 171

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Although not necessarily unethical, natural feelings of sexual attraction for a patient can alter treatment if not properly addressed. The therapist may feel his role quickly shifting into that of friend, potential lover, or even voyeur, with attendant private fantasies and loss of objectivity. Such private distractions transform the therapy sessions into social chitchats, with ever-diminishing psychotherapeutic impact, as the psychologist’s detachment and competence falter and his full range of therapeutic interventions is no longer available to him. The patient may be unaware that this is happening and may never file a complaint. It is the therapist, feeling distracted by a sexually attractive patient, who bears a moral obligation to reflect on this situation and take appropriate steps— such as consulting with a peer or a therapist, seeking additional training, reading, or some other means of addressing the dilemma.

Consequences for the Psychologist Incompetence frequently is cited by disgruntled clients, patients, and supervisees as one of the major reasons for bringing a grievance, such as initiating a lawsuit against the psychologist, initiating a complaint with the APA Ethics Office (if the psychologist is a member), or initiating a complaint with the state licensing board. (More information about these actions can be found in Chapter 18 of this volume.) Complaints filed with the APA Ethics Committee generally are handled by correspondence, by seeking information from the complainant and then requesting responses from the complaintee. Ultimately, the Ethics Committee may impose a directive, a saction, or a punitive order on the psychologist found to be in violation, depending in part on the nature and severity of the violation and the degree of harm perpetrated on others. CONCLUSION It is clear that competence embraces a broad range of factors that are interconnected. These include a psychologist’s personality, physical health, mental health, life experience, academic training, supervision, professional experience, and continuing education. It is a dynamic construct, not a static one, constantly subject to metamorphosis throughout various stages of life. This dynamism invites the ethical 172

psychologist to maximize and maintain professional competence by continuously engaging in self-monitoring for each of the professional roles that he or she plays while carrying out his or her work.

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Gottlieb, M. C. (1993). Avoiding exploitive dual relationships: A decision-making model. Psychotherapy: Theory, Research, Practice, Training, 30, 41–48. doi:10.1037/0033-3204.30.1.41 Grencavage, L. M., & Norcross, J. C. (1990). What are the commonalities among the therapeutic common factors? Professional Psychology: Research and Practice, 21, 372–378. doi:10.1037/0735-7028.21.5.372 Gutheil, T. G., & Gabbard, G. O. (1993). Misuses and misunderstandings of boundary theory in clinical and regulatory settings. American Journal of Psychiatry, 150, 188–196. Haynes, R., Corey, G., & Moulton, P. (2003). Clinical supervision in the helping professions: A practical guide. Pacific Grove, CA: Brooks/Cole-Thomson. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191. 110 Stat. (codified as amended in scattered sections of 42 U.S.C.) Hoffman, H. G., Patterson, D. R., & Carrougher, G. J. (2000). Use of virtual reality for adjunctive treatment of adult burn pain during physical therapy: A controlled study. Clinical Journal of Pain, 16, 244–250. doi:10.1097/00002508-200009000-00010 Holroyd, J. C., & Brodsky, A. M. (1977). Psychologists’ attitudes and practices regarding erotic and non-erotic physical contact with patients. American Psychologist, 32, 843–849. doi:10.1037/0003-066X.32.10.843 Institute of Medicine. (2001). Crossing the quality chasm: A new health system for the 21st century. Washington, DC: National Academies Press. Kitchener, K. (1988). Dual role relationships: What makes them so problematic? Journal of Counseling and Development, 67, 217–221. Knapp, S. J. (2007). Stalking: An occupational risk. The National Psychologist, 16(2), 15. Knapp, S. J., & VandeCreek, L. D. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. doi:10.1037/11331-000 LeVine, E. (2007). Experiences from the frontline: Prescribing in New Mexico. Psychological Services, 4, 59–71. doi:10.1037/1541-1559.4.1.59 Maheu, M. M., Pulier, M. L., Wilhelm, F. H., McMenamin, J. P., & Brown-Connolly, N. E. (2005). The mental health professional and the new technologies: A handbook for practice today. Mahwah, NJ: Erlbaum. Nagy, T. (2011). Essential ethics for psychologists: Understanding and mastering core issues. Washington, DC: American Psychological Association. doi:10.1037/12345-004 Norcross, J. C. (2004). Empirically supported treatments: Context, consensus, and controversy. The Register Report, 30, 12–14. 174

Norcross, J. C., & Guy, J. (2007). Leaving it at the office. New York, NY: Guilford Press. Okiishi, J. C., Lambert, M. J., Egget, D., Nielson, S., Dayton, D. D., & Vermeersch, D. A. (2006). An analysis of therapist treatment effects: Toward providing feedback to individual therapists on their patients’ psychotherapy outcome. Journal of Clinical Psychology, 62, 1157–1172. doi:10.1002/jclp.20272 Pope, K. (1994). Sexual involvement with therapists: Patient assessment, subsequent therapy, forensics. Washington, DC: American Psychological Association. doi:10.1037/10154-000 Pope, K. (2000). Therapists’ sexual feelings: Research, trends, and quandaries. In L. Szuchman & F. Muscarella (Eds.), Psychological perspectives on human sexuality (pp. 603–658). New York, NY: Wiley. Pope, K., Sonne, J., & Holroyd, J. (1993). Sexual feelings in psychotherapy: Explorations for therapists and therapists-in-training. Washington, DC: American Psychological Association. doi:10.1037/10124-000 Pope, K., & Vasquez, M. (2007). Ethics in psychotherapy and counseling: A practical guide (3rd ed.). San Francisco, CA: Jossey-Bass. Pope, K., & Vetter, V. (1991). Prior therapist-patient sexual involvements among patients seen by psychologists. Psychotherapy: Theory, Research, Practice, Training, 28, 429–438. doi:10.1037/0033-3204.28.3.429 Reese, R., Nosworthy, L., & Rowlands, S. (2009). Does a continuous feedback system improve psychotherapy outcome? Psychotherapy: Theory, Research, Practice, Training, 46, 418–431. doi:10.1037/a0017901 Sonne, J. L. (2006). Nonsexual multiple relationships: A practical decision-making model for clinicians. Retrieved from http://kspope.com/site/multiple-relationships.php Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976). Thomas, J. (2010). The ethics of supervision and consultation: Practical guidance for mental health professionals. Washington, DC: American Psychological Association. doi:10.1037/12078-000 Tishler, C. L., Gordon, L. B., & Landry-Meyer, L. (2000). Managing the violent patient: A guide for psychologists and other mental health professionals. Professional Psychology: Research and Practice, 31, 34–41. doi:10.1037/0735-7028.31.1.34 U.S. Department of Health and Human Services, Office of Research Integrity. (1999, March). Case summaries. ORI Newsletter, 7(2), 8. Westen, D., & Bradley, R. (2005). Empirically supported complexity: Rethinking evidence-based practice in psychotherapy. Current Directions in Psychological Science, 14, 266–271. doi:10.1111/j.0963-7214.2005.00378.x Younggren, J., & Gottlieb, M. C. (2004). Managing risk when contemplating multiple relationships. Professional Psychology: Research and Practice, 35, 255–260. doi:10.1037/0735-7028.35.3.255

CHAPTER 7

EMOTIONAL COMPETENCE AND WELL-BEING Leonard J. Tamura

The importance of competence in the education, training, credentialing, and practice of psychologists has been receiving increasing attention, particularly in recent years (Kaslow, 2004; Kenkel, 2009; Nelson, 2007; Roberts, Borden, Christianson, & Lopez, 2005; Rodolfa et al., 2005; Rubin et al., 2007). Competence in general is discussed in more detail in Chapter 6 of this volume, but it can be noted that competence has been described as essential to ethical practice and is related to everything that the psychologist does (Barnett, Doll, Younggren, & Rubin, 2007). In a similar vein, Fisher (2003) has described competence as the lynchpin that enables psychologists to fulfill other ethical obligations. Despite this mounting focus and agreement on the centrality and importance of competence, there has been some diversity of opinion regarding an exact definition of competence. One frequently cited definition, however, is that of Epstein and Hundert (2002) who described professional competence as “the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, value, and reflection in daily practice for the benefit of the individual and community being served” (p. 226). They elaborated that competence includes cognitive, integrative, relational, and affective–moral functions. Likewise, in reviewing a number of definitions of competence, Barnett et al. (2007) identified the common components of “knowledge; skills; and the attitudes, values, and judgment needed to effectively implement and use them” (p. 510). In further describing what is involved in professional judgment,

the authors noted that special care should be taken to avoid things that could degrade judgment, such as emotional distress. So, although some of the details in these definitions of competence may differ, the importance of emotions and emotional well-being to the concept of competence is consistent. Pope and Brown (1996) more specifically highlighted this when they identified three important facets of competence as intellectual competence, competence in doing, and emotional competence. EMOTIONAL COMPETENCE So, what does this emotional facet of competence, or simply emotional competence involve? Emotional competence refers to psychologists’ awareness of all of the ways in which their emotional experience and functioning affects, both positively and negatively, their professional judgment and the performance of their job duties, as well as the capability to manage their emotional experience and functioning to maximize the benefit and minimize any harm for those with whom they work. Discussions of emotional competence frequently focus on psychologists as psychotherapists. However, inasmuch as our emotional experience and functioning can affect our judgment and job performance regardless of the context, this is an equally important concept for psychologists whose primary work involves assessment, research, and teaching. In discussing some of the responsibilities involved in emotional competence, Pope and Brown

DOI: 10.1037/13271-007 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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(1996) stated that “emotional competence requires therapists to monitor their evolving capacity to perform the tasks of their profession, their need for personal support, breaks or rest and replenishment, and professional resources” (p. 138). Additionally, they noted that while intellectual competence generally grows over time with education, ongoing learning, and experience, emotional competence can vary throughout one’s career, is vulnerable to the effects of a variety of life experiences, and actually can decrease over time.

Ethical Implications of Emotional Competence The importance of emotional competence ethically can be seen directly in the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010). Principle A, Beneficence and Nonmaleficence, reads in part, “Psychologists strive to be aware of the possible effect of their own physical and mental health on their ability to help those with whom they work” (p. 3). Additionally, Standard 2.06, Personal Problems and Conflicts, of the Ethics Code states the following: (a) Psychologists refrain from initiating an activity when they know or should know that there is a substantial likelihood that their personal problems will prevent them from performing their work-related activities in a competent manner. (b) When psychologists become aware of personal problems that may interfere with their performing work-related duties adequately, they take appropriate measures such as obtaining professional consultation or assistance and determine whether they should limit, suspend, or terminate their work-related duties. (APA, 2010, p. 5) A more in-depth discussion of concerns related to impairment and substandard professional functioning can be found in the section Distress and Impairment: Professional Competence Problems later in this chapter. At this point in our discussion of ethics, we should remember the perspective of 176

positive ethics described by Knapp and VandeCreek (2006): We should not see ethical guidelines as simply minimum standards to be met, but rather they are a means to assist us in achieving a goal of excellence in all areas of practice, including emotional competence. With this perspective in mind, in exploring the ethical importance of emotional competence, in addition to these broad statements found in the Ethics Code, a number of specific areas can be examined: interpersonal functioning and patient care, self-care, ethical decision making and behavior, and multicultural considerations. Of course, these are not discrete areas, but they overlap and are interrelated; however, it may be helpful to consider them individually. Interpersonal functioning and patient care. For a psychologist to practice competently and ethically, the ability to relate to others in an effective and helpful way is essential. In attempting to provide a conceptual framework for the construct of competency in professional psychology, Rodolfa et al. (2005) identified six foundational domains, which are “the building blocks of what psychologists do” (p. 350). One of these foundational domains is labeled relationships. The area of interpersonal functioning has been identified as an essential area of focus in assessing competence (Kaslow, Rubin, Bebeau, et al., 2007). Additionally, the Mutual Recognition Agreement (MRA), which was established in Canada to standardize the competencies required of entrylevel psychologists across all jurisdictions, identified interpersonal relations as one of the five fundamental areas of competency (Canadian Psychological Association, 2001). Emotional competence is essential in establishing and maintaining effective and meaningful relationships. In an attempt to further define behaviorally and operationally the foundational competencies identified by Rodolfa et al. (2005), Fouad et al. (2009) produced a set of competency benchmarks. These benchmarks described more specifically the component skills required for each of the foundational competencies and included behavioral anchors. In the section relating to the competency domain of relationships, a section on affective skills

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is included. For the most elementary and fundamental level of competence, this section contains behavioral anchors such as awareness of one’s internal emotional experience and the demonstration of emotional maturity. Additionally, Standard 2.06 of the Ethics Code acknowledges that psychologists’ personal problems can interfere with or even prevent competent practice. For psychologists who practice psychotherapy, however, optimum emotional functioning is essential and fundamental to effective work. From a broad perspective, the person of the therapist is seen as an essential factor or instrument in the psychotherapeutic process (e.g., Aveline, 2005; Bugental, 1964; Elman, 2007; Guy, 1987). Additionally, in discussing the therapist variables that influence therapeutic efficacy, Beutler, Machado, and Neufeldt (1994) identified emotional well-being as an important factor and noted that several reviews of the literature are consistent in finding that therapist adjustment and emotional health are related to positive treatment outcomes. As Knapp and VandeCreek (2006) noted, “The quality of psychological work is affected by personal factors. Psychologists can better identify and understand the emotional nuances of psychotherapy when they can identify and understand their own emotions” (pp. 66–67). More specifically, many years of research have confirmed that therapist characteristics and aspects of the therapeutic process related to the therapist’s emotional competence are significant factors in treatment success (Lambert & Bergin, 1994). Metaanalytic research has confirmed a consistent relationship between therapeutic alliance and positive treatment outcome (Horvath & Symonds, 1991; Martin, Garske, & Davis, 2000). Gurman (1972) studied the relationship between therapist mood patterns and the quality of the therapeutic relationship and found that “facilitative therapists are more aware of and willing to report nuances in their own emotional experiences and thereby are more able to identify, accept, and respond nondefensively to changes in both the intensity and meaning of their patients’ feelings” (p. 170). Likewise, research has demonstrated a strong correlation between therapist empathy and positive therapy outcome (Bohart, Elliott, Greenberg, & Watson, 2002; Orlinsky &

Howard, 1986). Feshbach (1997) has described empathy essentially as a shared emotional response and suggests that emotional responsiveness or the ability to experience and be aware of one’s own emotions, is an important underlying component factor in empathy. Self-care. Principle A and Standard 2.06 of the Ethics Code state that psychologists must be aware of the status of their physical and mental health as well as personal problems and the potential impact these have on their work. Beyond an awareness of potential problems, however, many authors have discussed the need for psychologists to proactively take steps to prevent problems from occurring in the first place. In this context, self-care is an important if not essential activity for competent and ethical practice (APA, Advisory Committee on Colleague Assistance [ACCA], 2005; Barnett, 2007; Norcross & Guy, 2007). A more in-depth discussion of self-care appears in the section Preserving and Enhancing Well-Being and Emotional Competence. In terms of the ethical implications of self-care, however, because of the critical role that self-care plays in preventing or minimizing the impact of personal (including emotional) problems on professional work, some have gone so far as to state that psychologists have an ethical mandate to engage in selfcare (Barnett, 2007; Barnett, Johnston, & Hillard, 2005; Knapp & VandeCreek, 2006; Norcross & Guy, 2007). In fact, both the American Counseling Association’s (2005) Code of Ethics and the Feminist Therapy Code of Ethics (Feminist Therapy Institute, 2000) specifically describe engaging in self-care as an ethical obligation. Additionally, Pope and Vasquez (2005) have identified seven themes with regard to negative consequences that frequently arise as a result of neglecting self-care. The ethical implications of these problems are obvious. These themes include the following: disrespecting clients, disrespecting work, making more mistakes, lacking energy, becoming anxious and afraid, using work to block out unhappiness, pain and discontent, and losing interest. We know that poor self-care can lead to poor performance as a psychotherapist. Although we do not have data on this, the converse possibility is that 177

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those psychologists who practice exceptionally good self-care will have a greater chance of being exceptionally good at therapy, testing, teaching, research, or whatever professional activities they engage in. Ethical decision making and behavior. Ethical decision making is discussed in Chapter 4 of this volume, but emotional competence is a significant factor in understanding how ethical decisions are made and subsequent behaviors are chosen. For many years, discussions regarding the processes of making moral judgments and ethical decisions have focused heavily on cognitive reasoning and rationality (Haidt, 2001; Rogerson, Gottlieb, Handelsman, Knapp, & Younggren, 2010). These conceptualizations, however, seem to fail to describe how people actually make these judgments and decisions (Haidt, 2001; Kahneman, 2003). Additionally, they also fail to account for the discrepancy that has been found between ethical knowledge and behavior. In other words, although most clinicians know what they should do ethically in certain situations, when asked what they would do, they often report that they would do less than what they know is ethically required (Bernard & Jara, 1986; Bernard, Murphy, & Little, 1987; Smith, McGuire, Abbott, & Blau, 1991). In contrast with these models that stress the primacy of reasoning, others have argued that moral judgments and ethical decisions have their basis in a much more intuitive process (Haidt, 2001; Rogerson et al., 2010). These theories are formed on the basis of a dual process or two-system view of cognitive processing that distinguishes between fast, effortless, and emotional intuition and slow, controlled, and effortful reasoning (Kahneman, 2003). Although Haidt (2001) cautioned that we should not conceptualize the distinction between intuition and reasoning as equivalent to the contrast between emotion and cognition, our emotional responses are a significant part of the intuitive process (Kahneman, 2003; Rogerson et al., 2010). Knowing more accurately how ethical decisions are made, and the factors that influence one’s choice of behavioral response, are important in making sound ethical choices and avoiding common mistakes. Furthermore, awareness of the centrality of 178

emotions as a critical part of this process is equally important. Betan and Stanton (1999), following on earlier research regarding the discrepancy between ethical knowledge and behavior (Bernard & Jara, 1986), also investigated the impact of the subjects’ emotional responses in the ethical decision-making process. They concluded that “psychologists are making inadequate decisions about ethical dilemmas in part because they are not well attuned to the influential role of emotions, values and contextual concerns in ethical discourse” (p. 299). They went on to state that those who are more aware of personal emotions and values may be better able and willing to intervene ethically. Awareness of competing factors can enable one to override barriers, as well as to integrate emotional sensitivity with rational analysis of a dilemma. (p. 299) In a similar vein, Knapp and VandeCreek (2006) noted that self awareness and sensitivity to emotional reactions can facilitate ethical responses. Conversely, in the same way that well-modulated and integrated emotions can facilitate the decisionmaking process, uncontrolled emotional experience can negatively affect it. Intense emotions can interfere with the cognitive processes that are essential to effective problem solving (Knapp & VandeCreek, 2006). Multicultural considerations. Although awareness of and sensitivity to individual and cultural diversity has been identified as a foundational competency in and of itself (Rodolfa et al., 2005), multicultural considerations at the same time are seen as overarching factors and are related to every aspect of professional psychology (APA, 2003; Daniel, Roysircar, Abeles, & Boyd, 2004; Gallardo, Johnson, Parham, & Carter, 2009; Kaslow, 2004; Kaslow, Rubin, Bebeau, et al., 2007). Information on multicultural competence overall is covered in more detail in Chapter 8 of this volume, but with regard to emotional competence specifically, a discussion about multicultural factors is essential. Despite the fact that cross-cultural emotional universalities do exist, in considering psychologists’ evocation, awareness, management, and utilization of their

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emotional responses, it is important to acknowledge that cultural differences exist as well (Mesquita & Frijda, 1992; Safdar et al., 2009; Scherer & Wallbott, 1994). Therefore, there is not one single model of what emotional competence looks like, and psychologists’ individual and cultural factors must be taken into consideration. Furthermore, discussions of multicultural competence frequently reference the need for psychologists to be aware of the influence of culture on their unique perspective as well as their own biases and assumptions (e.g., APA, 2003; Daniel et al., 2004). Negative attitudes and prejudice can occur on an unconscious level even in individuals who disavow prejudiced beliefs (Greenwald & Banaji, 1995). When one considers this, combined with the discussion regarding intuitive cognitive processing, it can be seen that emotional competence can be a critical factor in both ethical and clinical decision making in a multicultural context. Therefore, as a result of the unconscious and automatic nature of these processes and their potential impact on the therapeutic relationship, it is possible that psychologists may appear outwardly to be practicing ethically in every way (e.g., informed consent, billing procedures, appropriate boundaries, etc.), but because of their lack of awareness, in fact may be providing less than optimal or even substandard services to patients of a different cultural background. In discussing the importance of the empathic relationship to the psychotherapy process, Pedersen, Crethar, and Carlson (2008) identified a key variable that they called affective acceptance that they defined as the development, emotional acknowledgment, or awareness of both culturally learned assumptions and a network of comemberships across cultural boundaries (i.e., the way that people share some things culturally with each other yet do not share other things) that include both cultural patterns of similarity and difference. (p. 61) Deficits with regard to multicultural competence certainly can result from a lack of training. At the same time, however, factors related to emotional

competence, such as lack of self-awareness, defensiveness, and resistance to self-reflection, also can lead to problems in this area. THREATS TO EMOTIONAL COMPETENCE The goal for emotional competence is to strive for maximum positive functioning, not just the minimum standard or avoiding impairment. Specific ways to maximize and increase emotional competence are described in the section Preserving and Enhancing Well-Being and Emotional Competence later in this chapter. Nevertheless, it is important that we remain aware of the very real ways in which our emotional competence can be compromised. The vast majority of the literature on self-care and emotional competence deals with impairment (or lack of competence) and little exists on emotional excellence or flourishing as a psychologist. Perhaps this reflects, in part, the fact that psychologists cannot be excellent unless they also avoid impairment, or it may demonstrate how devastating incompetence can be for psychologists (and their patients, students, or colleagues). A number of factors can have a negative impact on one’s emotional well-being and functioning, and threaten emotional competence. These factors include lack of reflection and self-assessment, personal factors and experiences, professional factors and experiences, work related factors, and barriers to help seeking and self-care.

Lack of Reflection and Self-Assessment To develop and maintain competence in any area of psychology, the ability to be self-reflective and assess oneself is essential. This is so important a skill that it has been identified as a foundational competency domain (Rodolfa et al., 2005). Coster and Schwebel (1997) have noted that well-functioning psychologists are associated with high levels of self-awareness and self-monitoring. After all, absent outside input, without the willingness to look at oneself and the ability to accurately assess one’s strengths and weaknesses, it would be impossible to ascertain whether one is functioning competently. It is unlikely that you will find an answer to a question that you don’t ask. In this regard, emotional competence is no different from any other area of competence. To be able 179

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to maximize the benefit and minimize any negative impact of one’s emotional experience and functioning on their professional judgment and job performance, one must first be aware of and thoughtful regarding their emotional experience and functioning (Barnett et al., 2005). Additionally, self-reflection and self-assessment in all areas of competence are especially critical in a field such as psychology. In psychology, the licensing process involves an initial assessment of education, experience, and knowledge. Beyond this, and apart from voluntary activities such as board certification, individuals generally are not reevaluated, and their competence is not assessed by outside parties ever again. Some licensing jurisdictions do try to address this situation through requirements for participation in continuing education, but the efficacy of those practices has been questioned (Bickman, 1999). Not only have reflection and self-assessment been identified as foundational to competent practice, it has been acknowledged that they should be taught beginning with graduate training and practiced continually throughout one’s professional life (Kaslow, Rubin, Forrest, et al., 2007; Roberts et al., 2005). Unfortunately, the profession of psychology has been judged to be lacking in its focus and emphasis on, and teaching of, these important practices (Belar et al., 2001; Kaslow, 2004; Kaslow, Rubin, Bebeau, et al., 2007). Furthermore, adding to the problem with regard to emotional competence, having emotional challenges can impair one’s ability to engage in accurate self-assessment. As Bennett et al. (2006) noted, “One of the paradoxes is that you are more likely to engage in denial when you are emotionally compromised, thus making it more difficult to identify your vulnerable state” (p. 64).

Personal Factors and Experiences A number of personal factors and experiences can affect psychologists’ emotional functioning. Some of these factors might be thought of as developmental and related to one’s personality, upbringing, and choice to become a psychologist. Other factors can be seen as external and related to a variety of experiences and transitions that everyone goes through in life. 180

One developmental factor relates to the psychologist’s family of origin. Numerous studies have described therapists as coming from families with a great deal of stress, trauma, and dysfunction. For example, some studies have found among psychotherapists high rates of childhood abuse (Elliott & Guy, 1993; Feldman-Summers & Pope, 1994; Pope & Feldman-Summers, 1992; Racusin, Abramowitz, & Winter, 1981), parental substance abuse (Elliott & Guy, 1993; Racusin et al., 1981), and family members with physical and/or behavioral problems (Racusin et al., 1981). Compared with physicists, male psychotherapists reported significantly more parental absence as a result of illness, death, divorce, or separation, and more parent–child role reversal (Fussell & Bonney, 1990). Compared with women of other professions, female psychotherapists reported more dysfunction and conflict in their families of origin (Elliott & Guy, 1993). Although some of these studies do have methodological problems, such as the possibility that psychologists may be more sensitive to dysfunctional family dynamics and therefore report them more readily than others, they nonetheless show that a background of family dysfunction exists for many psychologists. In the context of these findings of high rates of trauma and family dysfunction in the history of psychotherapists, some authors have wondered about the relationship of these factors to the motivations for choosing to become a therapist. Viewed from a more negative perspective, Guy (1987) has referred to what he called “dysfunctional motivators” underlying the choice for a career in psychotherapy. One of these he labeled emotional distress, where the career choice of psychotherapist is seen as representing an attempt to heal oneself and work through emotional trauma (Goldberg, 1986; Guy, 1987; Henry, Sims, & Spray, 1971). Another potential dysfunctional motivator is the desire to address or gratify unresolved personal needs, such as assuaging deep-seated feelings of loneliness and isolation (Goldberg, 1986; Guy & Liaboe, 1986a; Henry, Sims, & Spray, 1973). The desire for power also has been mentioned as a potential negative motivation for some seeking to become psychotherapists (Guy, 1987; Storr, 1979). Finally, the choice of a career in psychotherapy has been seen as an attempt to work

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through problems stemming from dysfunction in one’s family of origin (Elliott & Guy, 1993; Fussell & Bonney, 1990; Guy, Tamura, & Poelstra, 1989; Racusin et al., 1981). In this regard, in response to alcoholism, abuse, and other trauma, the future therapist may become parentified and adopt a caretaking role in the family (Elliott & Guy, 1993; Racusin et al., 1981). As O’Connor (2001) stated, psychotherapy as a profession then allows a continuance of the caretaking role, as well as the potential for mastery of chaotic environments, more generally. In essence, the mental health professional may be drawn to the role in part because they have been well prepared for it. (p. 346) Despite the consistent finding of a greater incidence of family dysfunction and trauma in the backgrounds of therapists, not all of the data support the conclusion that this leads to dysfunctional motivations in choosing the career of psychotherapy. Murphy and Halgin (1995) compared clinical psychologists with social psychologists and specifically inquired about their motivation and important factors in their career choice. They once again found a higher rate of personal problems and family distress in the histories of the clinical versus social psychologists. They did not, however, find that a history of family problems was a significant factor in the choice of career for the clinical psychologists. This information was obtained solely by self-report, so problems related to social desirability in the responses as well as the possible existence of unconscious motivations were not addressed in this study. In a similarly positive vein, some have argued that the difficulties and challenges found in the histories of many therapists actually can serve a positive function. For example, several authors have described the concept of the wounded healer and suggested that the painful childhood experiences that therapists have gone through allow them to better identify and empathize with their clients (Farber, 1983a; Goldberg, 1986; Guy, 1987). Additionally, in as much as therapists are able to heal their old wounds, either through practicing psychotherapy, their own treatment, or both, they can then serve as positive models of success

for their patients as well (Elliott & Guy, 1993; Goldberg, 1986; Guy, 1987; O’Connor, 2001). It is possible that by the time they enter the field of psychology, many students already have resolved their personal issues (Knapp & VandeCreek, 2006). Also, Elliott and Guy (1993) found that despite a higher incidence of childhood trauma and family dysfunction, in their current functioning, female psychotherapists demonstrated less personal distress when compared with women in other professions. Despite the potential for these positive factors to exist, they are in no way guaranteed. It is clear that factors related to unresolved problems stemming from any of these dysfunctional motivators could pose a serious threat to one’s emotional competence. An additional personal potential threat to emotional competence involves other aspects of the psychologist’s personality that may or may not be related to childhood experiences. Storr (1979) discussed the problems involved with psychotherapists with “obsessional characters.” Likewise, Knapp and VandeCreek (2006) stated the following: Unfortunately, some of the personality traits that helped psychologists get through their doctoral programs may undermine their satisfaction with their personal lives and their long-term professional success. To get through or succeed in graduate school, students need to defer gratification, put in long exhausting hours (often to the point of impairing physical well-being), and place their careers above their personal lives. For most students, this is a temporary sacrifice until they can get their professional careers started; for a few others, it starts or reinforces a lifestyle that places them at risk for burnout or depression. (p. 67) Another potentially problematic therapist personality characteristic is inflexibility. Hellman, Morrison, and Abramowitz (1987) found that therapists with more rigid personalities experienced more stress in response to patients’ expression of negative affect and suicidal threats than their less rigid counterparts. Clinicians who are generally inflexible are also more at risk for burnout (O’Connor, 1995). 181

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In addition to these developmental and personality factors, other personal threats to emotional competence can be found in the external stressors that all psychologists experience. The basic reality is that psychologists experience the same stresses in life that everyone else does. Significant and stressful life experiences and events—such as family and relationship problems, divorce, the death or illness of a loved one, physical illness or disability, mental illness, legal problems, and financial difficulties— all can and do affect psychologists (Barnett et al., 2005; Bennett et al., 2006; Guy, 1987; Knapp & VandeCreek, 2006). Additionally, personal stressful experiences can have heightened meaning and impact during times of transition, such as marriage, pregnancy, moving, or changing jobs (Bennett et al., 2006; Guy, 1987; Pope & Brown, 1996). All of these personal stressors have the potential to interfere with one’s professional functioning resulting in problems with competence, including and perhaps especially emotional competence (Barnett et al., 2005; Bennett et al., 2006; Knapp & VandeCreek, 2006).

Professional Factors and Experiences Although a profession as a psychologist can be very rewarding (Guy, 1987; Kramen-Kahn & Hansen, 1998; Norcross & Guy, 2007; Norcross, Karpiak, & Santoro, 2005), a variety of difficult and stressful aspects and experiences are associated with the work as well (Knapp & Keller, 2004). In particular, the practice of psychotherapy is a unique undertaking. It can be an extremely intimate interpersonal encounter, yet at the same time, it is an unnaturally one-sided relationship (Guy, 1987). Therapists encounter, experience, and empathize with their clients’ powerful and painful emotions, but they must take care to contain, manage, and modulate their own emotional reactions in the best interest of the client (O’Connor, 2001). The professional stresses experienced by the therapist are many; suicidal threats and behaviors by clients, fear of malpractice suits or licensing complaints, and working with individuals with chronic difficulties who show little to no improvement, just to name a few (Barnett et al., 2005; Pope & Tabachnick, 1993; Sherman & Thelen, 1998). Additionally, all of this work is done 182

in relative isolation. It is no wonder that Norcross and Guy (2007) emphatically stated that “practicing psychotherapy is often a demanding and grueling enterprise” (p. 35). All of these factors can and do affect our emotional functioning and therefore can serve as potential threats to our emotional competence. The section Preserving and Enhancing WellBeing and Emotional Competence later in this chapter discusses strategies for anticipating these stresses, preventing them from compromising our emotional functioning, and reducing their impact if and when they do. No doubt, many competent psychologists are trained to anticipate these events and know how to handle them or know how to access a support system when the optimal response is not obvious. At the same time, not everyone will have had this training, and none of us are perfect, so it is important to discuss these challenges openly. Therefore, we will now consider more specifically the professional side of the stressors that psychologists experience. They can be thought of in two broad categories: the impact of therapy on the therapist and patient behaviors. As is discussed in the section Prevalence of Distress and Impairment: Professional Competence Problems later in this chapter, therapists consistently report experiencing a number of emotional problems, including depression, anxiety, and emotional exhaustion (Deutsch, 1985; Mahoney, 1997; Pope & Tabachnick, 1994; Thoreson, Miller, & Krauskopf, 1989). Many studies have simply documented the existence of these problems among therapists but have not necessarily drawn a causal link between them and the practice of psychotherapy. Other studies, however, have postulated that some aspects of the profession may leave therapists at greater risk for the development of emotional disorders (Orr, 1997). In two different surveys of psychiatrists, the respondents did attribute, at least partially, emotional difficulties they were experiencing to the practice of psychotherapy (Bermak, 1977; Looney, Harding, Blotcky, & Barnhart, 1980). Beyond the more general feelings of anxiety, depression, and emotional exhaustion that may be related to the practice of psychotherapy, of concern also are other specific emotions that are evoked in therapy. In a survey of psychologists, Pope and

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Tabachnick (1993) found that significant numbers reported feelings of fear (up to 97%) and anger (up to 89%) related to clients for a variety of reasons as well as feelings of sexual attraction (up to 87%) toward clients. The experience of these uncomfortable feelings also results in a significant amount of shame, guilt, and anxiety for therapists, which contributes to a reluctance to acknowledge or discuss them (Pope, Sonne, & Greene, 2006). Left unaddressed, however, these feelings can have a negative impact on the therapist, the client, and the therapeutic process (Pope et al., 2006; Pope & Tabachnick, 1993). An additional area of concern regarding the impact of therapy on the therapist relates in particular to therapists who treat individuals with a history of trauma. Repeated exposure to detailed and graphic accounts of horrific events as well as the powerful emotions that are experienced by the trauma survivor can exact a toll on clinicians over time. As Pope and Brown (1996) noted, these clients are individuals “who may be despairing, terrified, sexually aroused, enraged, violent, frantic, or experiencing other intense feelings or impulses” (p. 121). The result is that the therapist can develop a constellation of symptoms similar to posttraumatic stress disorder that has been referred to variously as vicarious traumatization (Pearlman & Saakvitne, 1995), compassion fatigue, and secondary traumatic stress (Figley, 1995). It is felt that these difficulties occur, in part, as a result of the therapist identifying and empathizing with the trauma victim. Ironically then, the most effective and empathic clinicians are often most at risk for these problems (Figley, 1995). Additionally, such factors as therapists having a personal history of trauma, having a higher number of trauma survivors in their caseload, and having a higher level of exposure to graphic details all place them at greater risk for experiencing vicarious traumatization (Brady, Guy, Poelstra, & Brokaw, 1999; Little & Hamby, 1996; Norcross & Guy, 2007; Pearlman & MacIan, 1995). Another source of stress for therapists is the effect that conducting psychotherapy has on their personal relationships. As is discussed in the section Prevalence of Distress and Impairment: Professional Competence Problems later in this

chapter, numerous surveys have found that therapists often acknowledge relationship problems (e.g., APA, ACCA, 2007; Deutsch, 1985; Thoreson et al., 1989). These data on the prevalence of relationship difficulties among psychotherapists do not demonstrate that practicing therapy is the sole cause, but several authors have noted that it may be a factor. The practice of psychotherapy can be an emotionally demanding enterprise, and it can leave therapists emotionally depleted, with little left for their families (Guy & Liaboe 1986a; Henry et al., 1973; Storr, 1979). Some therapists have indicated that practicing psychotherapy can interfere with their ability to be natural and spontaneous with friends (Farber, 1983b). Furthermore, because of the bounds of confidentiality, therapists often are unable to discuss their work with their family and close friends, thus depriving those relationships of a potential source of connection as well as support for the therapist (Storr, 1979; Tamura, Guy, Brady, & Grace, 1994). A number of patient behaviors have the potential to impact psychologists’ emotional well-being and thereby threaten their emotional competence. Pope and Tabachnick (1993) found that more than 50% of the therapists in their sample had felt so much fear regarding a client that their eating, sleeping, or concentration was affected. Many writers have reported that suicidal patient behavior is the most stressful experience that therapists encounter in their work (Chemtob, Bauer, Hamada, Pelowski, & Muraoka, 1989; Deutsch, 1984; Farber & Heifetz, 1981; O’Connor, 1998). In a national survey of psychologists, Pope and Tabachnick (1993) found that 97% of the respondents acknowledged feeling afraid that a client might commit suicide. Unfortunately, these fears are not unfounded. Studies of the incidence of patient suicide have found that approximately one fourth of psychologists (Chemtob, Hamada, Bauer, Torigoe, & Kinney, 1988; Pope & Tabachnick, 1993) and one half of psychiatrists (Chemtob, Hamada, Bauer, Kinney, & Torigoe, 1988) have had a patient die from suicide. Additionally, in a study of predoctoral psychology trainees and interns, 97% had experienced a patient who had expressed some form of suicidal ideation or behavior, 29% had a patient who attempted suicide, and 11% had a patient who 183

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actually completed suicide (Kleespies, Penk, & Forsyth, 1993). Not surprisingly, a patient committing suicide can result in significant emotional distress for clinicians. In one study of psychologists who had lost a patient to suicide, 49% reported clinically significant symptoms of stress following the event (Chemtob, Hamada, Bauer, Torigoe, & Kinney, 1988). In another study, many therapists reported experiencing severe distress following the suicide of one of their patients (Hendin, Haas, Maltsberger, Szanto, & Rabinowicz, 2004). The distressing reactions that have been reported included intrusive symptoms of stress similar to those found in trauma victims (Chemtob, Hamada, Bauer, Kinney, & Torigoe, 1988; Chemtob, Hamada, Bauer, Torigoe, & Kinney, 1988; Kleespies & Dettmer, 2000), including shock, grief, guilt, failure, anxiety, shame, and depression (Hendin et al., 2004; Kleespies & Dettmer, 2000; Kleespies et al., 1993). Another behavior that can be extremely distressing to clinicians is the overt expression of anger and aggression by patients. In a survey of psychologists, Pope and Tabachnick (1993) found that 89% of the psychologists had felt afraid that a client would attack a third party and 61% actually had a client commit such an attack. Perhaps even more distressing is the thought that the therapist might be the target of violence by their patient. In the Pope and Tabachnick (1993) survey, 83% of the respondents expressed a fear that a client might physically attack them, and a large minority of therapists reported actually being physically attacked by patients (Guy, Brown, & Poelstra, 1990; Tryon, 1986). Guy et al. (1990) reported that a patient had attacked 40% of the psychologists they surveyed. The majority of these attacks (62%) occurred in a hospital setting, and 23% of them resulted in physical injury to the therapist. The emotional consequences of experiencing such an attack consisted of an increased sense of personal vulnerability and decreased feelings of emotional well-being and competence (Guy, Brown, & Poelstra, 1991). Beyond actual physical attacks, however, patient aggression can manifest itself in a number of other ways. When threats, verbal abuse, and harassment are included, the numbers rise significantly. The number of therapists reporting that 184

they have experienced one or more of these behaviors from patients ranges from 49% to 81% (Guy, Brown, & Poelstra, 1992; Pope & Tabachnick, 1993; Tryon, 1986). Threats included not only threats of physical violence toward the clinician, but also threats of property destruction and malpractice suits. Harassment in these studies included behaviors such as annoying and unwanted phone calls to the therapist’s home or office and the actual filing of malpractice and licensing complaints. In addition to threats and unwanted telephone calls, therapists also can be the target of even more significantly threatening and intrusive behavior on the part of their clients. Estimates of the numbers of therapists who have been a victim of stalking by clients range from 5.6% to 19.5% (Gentile, Asamen, Harmell, & Weathers, 2002; Purcell, Powell, & Mullen, 2005; Romans, Hays, & White, 1996). Although harassing telephone calls were reported frequently, other stalking behaviors described in these studies included clients loitering nearby; unsolicited letters, faxes, or e-mails; and being watched, approached, and followed by clients (Purcell et al., 2005; Romans et al., 1996). The emotional impact of stalking was found to be significant, with many clinicians reporting feelings of anxiety, anger, fear, stress, and worry as well as sleep disturbance (Gentile et al., 2002; Romans et al., 1996). Many clinician victims of stalking also reported lost time from work (Purcell et al., 2005; Romans et al., 1996). Additionally, in response to the stalking, all of the studies reported that many therapists made changes to their personal and professional lives, such as obtaining an unlisted phone number or home address and being more selective about the patients they see (Gentile et al., 2002; Purcell et al., 2005; Romans et al., 1996). Some clinicians went so far as to change their office or residence location, and 29% reported that they had considered leaving the profession as a result of their experience (Purcell et al., 2005). A final form of patient aggression involves sexual harassment. deMayo (2000) investigated trainees’ experiences with sexual harassment by surveying clinical supervisors. He found that 45% of the supervisors in his sample had had a supervisee report an

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incident of sexual harassment by a patient. These behaviors included patients making sexual remarks; brushing up against, touching, or grabbing; making sexually suggestive gestures; and exposing themselves to the supervisee. In a previous study, deMayo (1997) found that 53% of the female psychologists he surveyed had acknowledged at least one incident of sexual harassment by a patient. Although suicidal threats and behaviors and patient aggression are two of the top most stressful patient behaviors for clinicians, a number of other behaviors have been noted as quite stressful as well. These include apathy and lack of motivation on the part of the patient, premature termination, and passive aggressive behaviors (Deutsch, 1984; Farber, 1983c; Norcross & Guy, 2007). Additionally, certain patient diagnostic categories, in particular borderline personality disorder, have been noted to involve a large number of stressful patient behaviors (e.g., Baker, 2003; Norcross & Guy, 2007). Care must be taken not to blame the victim when working with individuals who are suffering from significant psychological difficulty and emotional distress. Nevertheless, the impact of these patients’ behaviors on the therapist, and the therapists’ emotional functioning, cannot be ignored.

Work-Related Factors A number of factors related to the risks, conditions, and pressures of working as a psychologist can serve as professional stresses and threaten one’s emotional competence. These include isolation, the threat of licensing complaints and malpractice suits, an institutional or agency work setting versus an independent practice, and other business aspects of a psychology practice, including financial concerns and managed care. As with the professional stressors discussed earlier, the goal is not to paint an unusually unpleasant picture of the practice of psychology. Competent psychologists are trained to embed themselves into protective social networks where they can compensate for the inherent isolation of their profession. However, candor requires an open discussion of these work-related stressors. Guy (1987) has described isolation as the “number one hazard” in the practice of psychotherapy. Additionally, both Bermak (1977) and Tryon (1983)

found that isolation was the number one complaint of the practitioners that they surveyed. Guy (1987) further noted that this experience of isolation can be both physical and emotional. With regard to the physical aspect of isolation, most therapists work in private settings designed to promote feelings of safety and security in their clients and to facilitate confidentiality and the therapeutic process. These very conditions, however, contribute to the experience of isolation in therapists (O’Connor, 2001). Interruptions from the outside world are minimized or nonexistent during the therapy hour, including the casual contact from family and friends that one might experience in other work settings (Guy, 1987). Therapists often experience long periods of time without contact with other professionals as well (Barnett et al., 2005; Guy, 1987). Even those who practice in a group environment may go for long stretches without meaningful contact with their colleagues. Regular workdays consisting of back-toback therapy sessions might even interfere with one’s ability to stay abreast of current events (Norcross & Guy, 2007). A final facet of isolation resulting from the therapist’s lack of contact with the world outside the consulting room is that it also reduces the amount of time that the therapist is able to spend with “ordinary” people who are not in crisis or experiencing emotional distress (Guy, 1987; Storr, 1979). Regarding the emotional experience of isolation, the nature of the therapeutic relationship is one in which both parties are focused on the needs of the client. As a result, therapists frequently must put aside addressing their needs to attend to what is in the best interest of the client. As Guy (1987) noted, “This furthers the sense of emotional isolation in the therapist who learns to forestall personal concerns for hours on end, as he or she focuses exclusively on the needs of patients” (p. 85). A related source of emotional isolation for psychotherapists relates to their emotional reactions in therapy. It is essential for the empathic understanding of clients that therapists are aware of their emotional reactions. Furthermore, the practice of psychotherapy can and frequently does evoke difficult and uncomfortable emotions in the therapist. Again, however, as the client’s needs are of primary importance in the therapeutic relationship, therapists 185

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may find that they have to suppress, contain, or moderate their emotions in the best interest of their client (Baker, 2003). The emotional control that is required of therapists in these situations, or “self-abnegation” as Storr (1979) called it, is potentially quite stressful to therapists and also may contribute to feelings of emotional isolation (Deutsch, 1984; Guy, 1987). Additionally, the ongoing practice of psychotherapy necessarily involves therapists’ repeated termination of client relationships. These recurring experiences of terminating what are often significant and meaningful relationships may elicit feelings of anxiety, sadness, and loneliness in clinicians (Guy & Brown, 1993; Martin & Schurtman, 1985). These feelings likely are felt alone and privately, thereby further contributing to feelings of emotional isolation by the therapist (Norcross & Guy, 2007). Fear and distress regarding licensing board complaints and malpractice suits are commonplace among therapists. One national survey of psychologists found that 66% of the respondents had feared that a client might file a formal complaint against them (Pope & Tabachnick, 1993). Other studies have found that between 14% and 23% of those surveyed reported a very high degree of concern regarding the possibility of a malpractice suit filed against them (Knapp, VandeCreek, & Phillips, 1993; Wilbert & Fulero, 1988). Despite these figures, the reality that an individual might be the target of a complaint or lawsuit is much lower than might be expected. A variety of sources have estimated that the chances that one will have to respond to a licensing board complaint are somewhere around 10% to 12% (Montgomery, Cupit, & Wimberley, 1999; Schoenfeld, Hatch, & Gonzalez, 2001). These data were obtained directly from psychologists, however. In contrast, Van Horne (2004) solicited data directly from psychology licensing boards in the United States and Canada and found over a 5-year period a consistent rate of complaints filed against 2% of licensees in the jurisdictions responding to her survey. The cause of the large discrepancy between these estimates is unclear, but it is possible that sampling error is a contributing factor and representative samples were not obtained from either psychologists or licensing boards. In most of the surveys of psychologists, members of professional 186

associations were solicited and participants were not drawn from all licensed psychologists. Additionally, in Van Horne’s (2004) survey of licensing boards, she obtained only a 50% to 60% response rate for each year. Regardless of these differences in the estimated incidence of complaints filed against psychologists, one fact is undisputed: The vast majority of the complaints that are filed are dismissed with no finding of a violation or discipline by the board (Schoenfeld et al., 2001; Van Horne, 2004). The likelihood of being the target of a malpractice lawsuit is similarly low. It is estimated that 2% or less of clinicians will face this challenge at some point in their careers (Dörken, 1990; Sherman & Thelen, 1998; Wilbert & Fulero, 1988). Despite these relatively low incidence figures, many clinicians still are affected by the fear of their occurrence. As is discussed in the section Prevalence of Distress and Impairment: Professional Competence Problems later in this chapter, worse than this fear is the emotional impact on those individuals who do have a complaint or lawsuit lodged against them, even if it eventually is resolved in their favor. Another work-related factor that is consistently associated with significant levels of stress experienced by psychotherapists is work setting. Study after study, the findings are consistent that clinicians who work in institutional and agency settings report more distress and symptoms of burnout than those who work in independent practice (e.g., Hellman & Morrison, 1987; O’Connor, 1995; Orlinsky & Rønnestad, 2005; Raquepaw & Miller, 1989; Rupert & Kent, 2007). Less flexibility, greater amounts of administrative activities and paperwork, lack of personal control, and lower salaries all have been offered as possible contributors to this discrepancy (Hellman & Morrison, 1987; Raquepaw & Miller, 1989; Rupert & Kent, 2007). The situation is not better for the private practitioner in every respect, however. A number of factors related to the business aspects of running a practice can be additional sources of considerable stress and dissatisfaction. Among the top concerns for those involved in independent practice, particularly fulltime practice, are financial and caseload uncertainties (APA, ACCA, 2007; Kramen-Kahn & Hansen, 1998; Norcross, Nash, & Prochaska, 1985; Sherman &

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Thelen, 1998; Tryon, 1983). A closely related stressor is that of managed care. Since its advent, managed care has dramatically affected the practice of psychology (Phelps, Eisman, & Kohout, 1998; Rupert & Baird, 2004). Although some practitioners choose not to participate in insurance reimbursement or managed care, a great number do (Murphy, DeBernardo, & Shoemaker, 1998). It is likely that the insecurities regarding caseload and financial fluctuation in private practice factor into the decision to participate in managed care for many. This choice brings with it a number of significant stresses, however. Between 70% and 80% of psychologists report that they believe that managed care has had a negative impact on their work (Murphy et al., 1998; Phelps et al., 1998). More specifically, some studies have identified managed care and practice-related pressures from insurance companies as the number one professional stressor experienced by the clinicians surveyed (Brodie & Robinson, 1991; O’Connor, 1998). Some of the specific sources of stress that have been cited include increased paperwork, external constraints on services, decreased fees, and ethical challenges (Murphy et al., 1998; Phelps et al., 1998; Rupert & Baird, 2004). To more accurately determine the impact of managed care on psychologists, Rupert and Baird (2004) compared independent practitioners who had high versus low managed care involvement. They found that the psychologists who had higher levels of managed care involvement also had higher levels of work-related stress and emotional exhaustion when compared with their colleagues who had low involvement with managed care. Concerns regarding finances and the pressures of managed care not only have been identified as a source of stress, but also have been described in some studies as more likely than other types of problems to negatively affect professionals’ functioning (APA, ACCA, 2007; APA, ACCA, California Psychological Association Colleague Assistance and Support Program [CLASP], 2009; Guy, Poelstra, & Stark, 1989; Sherman & Thelen, 1998). The implications for these factors potentially affecting one’s emotional competence are evident. When considering professional and work-related factors, it should be noted that the vast majority of the research examining the impact on psychologists

of the work they do has focused on the practice of psychotherapy. These threats to emotional competence, however, are relevant to psychologists practicing in other areas as well. For example, it is not hard to imagine depression, anxiety, or emotional exhaustion resulting in a psychologist working in academia who is under pressure to publish or in a researcher constantly working to secure grants or other funding. Many of the stressful behaviors manifested by patients also are likely to be demonstrated by students toward psychologists who are teachers. Neuropsychologists and other psychologists conducting assessments certainly are called on to evaluate individuals who have experienced horrendous trauma and devastating injuries. Not all psychologists conduct psychotherapy, but it is equally important to those individuals engaged in other aspects of psychological practice to be aware of the impact of their work on their emotional functioning.

Barriers to Help Seeking and Self-Care Although personal and professional factors and experiences can and do have a significant impact on psychologists’ emotional functioning, much of the negative impact of these stressors can be ameliorated by seeking help and taking care of oneself. Because we know how powerful and effective positive behavior can be in maintaining one’s emotional wellbeing, the barriers that prevent psychologists from engaging in them also must be seen as serious threats to emotional competence. The unfortunate truth of the matter is that psychologists often do not practice what they preach. They encourage their clients to seek psychotherapy, set limits, take breaks, exercise, make their family and relationships a priority, and take care of themselves in a host of other ways, yet they do not follow their own advice (Barnett & Hillard, 2001; Norcross & Guy, 2007; O’Connor, 2001). In a survey regarding the availability of colleague assistance programs (CAPs) in the United States and Canada, Barnett and Hillard (2001) found that 10 jurisdictions formerly had a program but no longer did at that time. It is a sad testament to reluctance of psychologists to seek help that seven of the 10 defunct programs cited as their reason for discontinuation “lack of use” (Barnett & Hillard, 2001, p. 206). 187

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Another ironic fact pointed out by Norcross and Guy (2007) is that mental health professionals are the experts on human behavior—that is, why people do and often do not do what they should. According to Norcross and Guy (2007), the problem is that mental health professionals consistently focus their attention on other people’s behavior, and thus research on the barriers to help seeking and self-care for therapists is sorely lacking. Although this research is minimal, it is not nonexistent, and some of the studies that have been conducted might provide some clues to this paradox that therapists have such a hard time following their own prescriptions. It often is noted that self-care should be a lifelong practice that spans one’s entire professional career (e.g., Baker, 2003; Knapp & VandeCreek, 2006; Norcross & Guy, 2007). As such, it stands to reason that education, discussion, and appropriate modeling regarding the stresses of psychology practice as well as the importance of developing lifelong self-care practices and habits should begin in graduate school and continue through internship. Unfortunately, this often does not appear to be the case. The specific research related to students and trainees will be discussed in more detail in a separate section. At this point, however, inasmuch as students and trainees are not exposed to vulnerable models and honest discussions about the stresses of professional practice, they may lack the preparation necessary to successfully deal with them. At the same time, if they are not taught and encouraged to practice self-care, if it is not modeled for them by the experienced practitioners they are exposed to, and if it is not supported both verbally and in the culture of the training environment, then this does not bode well for these students developing a careerlong pattern of self-care from the start. Another factor related to clinicians’ reluctance to seek help for themselves relates to their identification with the role of helper or caregiver. As therapists, our reason for being is to offer help and care to those seeking our services. For both ethical and clinical reasons, in the therapy hour, the client’s needs must take precedence over the therapist’s needs. Unfortunately, however, we may become overly identified with this role, and even outside of our position as therapist, continue to 188

see ourselves as the one who gives help, not the one who receives it. In a study of social workers, Siebert and Siebert (2007) examined the relationship between role identity and help seeking. They found that having a stronger identification with the caregiver role significantly decreased the likelihood that an individual would seek help for personal issues. Along these lines, Deutsch (1985) found one of the top reasons for not seeking help among the therapists she surveyed was the belief that they should be able to work out their problems on their own. Although it was not investigated in the Siebert and Siebert (2007) study, it would seem quite possible that identification with a caregiver role could lead a clinician to downplay or minimize the need for self-care activities. In fact, it has been suggested that adopting the role of the healer might lead to both decreasing one’s self-awareness of distress and increasing minimization and denial (Barnett, 1994; Barnett & Hillard, 2001; Good, Khairallah, & Mintz, 2009; Guy, 1987). Although role identification was not specifically investigated, two recent surveys of practicing psychologists found 22% and 43% of the respondents cited minimization or denial as a reason for not seeking help (APA, ACCA, 2007; APA, ACCA, CLASP, 2009). To further compound the problem, as Bennett et al. (2006) noted, those psychologists in denial are less likely to seek treatment for themselves. Therapists’ emotional reactions also may play a part in preventing them from seeking help. Shame, embarrassment, and guilt have been discussed as common emotional reactions to needing help (Barnett & Hillard, 2001). These emotions were found to be the number one barrier to help seeking in one survey conducted by ACCA (APA, ACCA, 2007). These feelings can be evoked as a result of both internal and external factors. On the internal side, individuals might feel shame, embarrassment, or guilt because they believe that as therapists they should be able to manage all of their personal problems effectively and completely. Regarding external influences, O’Connor (2001) noted that the difficulties that the profession has had in accepting and acknowledging problems of distress and impairment within its ranks have led to characterizations of

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those who are experiencing struggles as “bad apples” and fundamentally different from ourselves. (This dynamic will be discussed in more detail in the section Seeing Other as Impaired.) This characterization has resulted in a professional culture in which those who are in need of help are stigmatized (Barnett, 2007; O’Connor, 2001), which also contributes to feelings of shame, embarrassment, and guilt in those who are struggling. Another emotional reaction that serves as a barrier to seeking help is fear. Concerns about privacy and confidentiality in one’s efforts to address problems lead to numerous fears, including the experience of censure, discipline or licensing board actions, loss of status, or professional rejection (APA, ACCA, 2007; APA, ACCA, CLASP, 2009; Deutsch, 1985; Elman, 2007). As discussed in the section Preserving and Enhancing Well-Being and Emotional Competence later in this chapter, CAPs and others are making efforts to reduce the stigma associated with seeking help and to encourage psychologists to proactively consider ways to enhance their emotional competence. DISTRESS AND IMPAIRMENT: PROFESSIONAL COMPETENCE PROBLEMS Most threats to emotional competence certainly can be stressful, but they also can result in the subjective experience of distress or, worse, actual impairment in functioning. Before proceeding further in this discussion, clarification of the relevant terms and concepts is in order. The most commonly utilized term in the literature to describe diminished professional functioning has been impairment. Elman and Forrest (2007), however, have noted problems with the use of this term, particularly because of its use in the Americans With Disabilities Act (ADA; 1990). As a result, they have suggested using the term professional competence problems instead of impairment (Elman & Forrest, 2007). For the purposes of this section, their recommendation is followed as much as practical; however, for the sake of clarity and accuracy, the word impairment is used occasionally when discussing earlier writings that used this terminology.

In discussing the relationship between distress and professional competence problems, Barnett (1994) noted that these are not exclusive terms but rather factors that exist on a continuum on which a practitioner may experience a gradual progression from one to the other. Furthermore, ACCA (APA, ACCA, 2005) has outlined an expanded continuum, described as a developmental model as follows: Stress—Distress—Impairment—Improper Behavior—Intervention/Sanction In this schema, stress is seen as the result of the personal or occupational difficulties that one experiences, such as those that have been mentioned for psychologists. Distress refers to the state wherein this stress is not readily resolved (APA, ACCA, 2005) and involves one’s emotional responses to the ongoing stressors, challenges, and demands of one’s life (Barnett et al., 2005). Impairment describes the progression to a state at which, as the result of untreated distress, individuals are unable to adequately perform their minimum professional responsibilities (Knapp & VandeCreek, 2006), or their functioning is compromised to the degree that harm to the client or ineffective services is the result (APA, ACCA, 2005). For the psychotherapist, because of the importance of the person of the therapist to successful treatment, emotional deficits are a central factor in impairment (Guy 1987). As Barnett (2007) pointed out, “distress does not necessarily lead to impairment, but a lack of adequate attention to distress makes this possibility more likely” (p. 604). A discussion of the concept of burnout is warranted at this point. Freudenberger (1975) often is credited with coining the term, which he used to describe a state of depletion or exhaustion sometimes found in those who work in the helping professions. Since that time, there have been a variety of definitions of the concept, but as Norcross and Guy (2007) have noted, common among all of the definitions is the experience of emotional depletion. In the context of the ACCA model, burnout probably can best be seen as overlapping the distress and impairment portions of the continuum. In fact, Baker (2003) described burnout as the “terminal phase of therapist distress” (p. 21). Asay and 189

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Lambert (2002) stated that “when therapists become overstressed, fatigued, or ‘burned out,’ the first skill that suffers is their ability to empathize with the client and to express warmth and understanding” (pp. 545–546), resulting in a deterioration of their therapeutic effectiveness. At the same time, however, burnout is not a singular experience. Different subtypes of burnout have been discussed. Many therapists may function adequately most of the time and only experience what might be called periodic “brownouts” (Norcross & Guy, 2007). As with distress and professional competence problems, burnout is neither completely present nor completely absent in every case (Barnett, 2007), and functioning is always in a constant state of fluctuation (Good et al., 2009). At this point, impairment or professional competence problems should be differentiated from technical incompetence. As Kutz (1986) noted, impairment generally involves a decline from a previous higher level of functioning. In contrast, technical incompetence involves a lack of training or experience and individuals who do not have the knowledge, the technical skills, or both necessary to perform their job duties competently (Guy, 1987; Knapp & VandeCreek, 2006). Returning to the ACCA model, the final two points on the continuum are self-explanatory. Continuing to work while one is impaired easily can lead to improper behavior. Again, this progression from distress to impairment to improper behavior is not limited to those psychologists who practice psychotherapy. It is not hard to imagine psychologists with professional competence problems whose difficulties lead to improper behavior in the venues of teaching and research as well. Finally, improper behavior on the part of a psychologist, particularly if ongoing and egregious, likely will be reported to ethics committees, licensing boards, academic administrations, employers, and so on, often resulting in some form of intervention or sanction. The type of intervention or sanction will vary with the nature of the improper behavior and the sanctioning body, but it can include such consequences as censure, reprimand, mandatory treatment, loss of employment, or loss of licensure. 190

Prevalence of Distress and Impairment: Professional Competence Problems Obtaining accurate figures regarding the incidence of distress and problems with professional competence for psychologists has been difficult because the research in this area has been hampered by small sample sizes, the use of self-report measures, lack of consistent definitions of concepts (such as impairment), and lack of comparison groups (Elliott & Guy, 1993; Nathan, 1986; Smith & Moss, 2009). Nevertheless, the existing research does contain some useful and interesting information. Most of the threats to emotional competence can be stressful, and if experienced for extended periods of time without resolution, these threats can lead to distress. In the investigation of distress, a number of studies have examined the kinds of stressors that most frequently lead to the highest levels of distress for professionals. The stressors most often cited in the literature have been relationship difficulties, emotional and mental health problems, substance abuse, and physical illness or disability. Marital and relationship problems consistently appear high on the list of stressors that lead to the most distress, and in many studies are the most frequently reported problems (APA, ACCA, 2007; Bernstein, Brady, Lewis, & Schwebel, 1994; Deutsch, 1985; O’Connor, 1998; Thoreson et al., 1989). Other regularly mentioned sources of distress for clinicians include depression (APA, ACCA, 2007; Bernstein et al., 1994; Brodie & Robinson, 1991; Deutsch, 1985; Gilroy, Carroll, & Murra, 2002; Mahoney, 1997; O’Connor, 1998; Pope & Tabachnick, 1994; Thoreson et al., 1989), anxiety (APA, ACCA, 2007; Bernstein et al., 1994; Mahoney, 1997; O’Connor, 1998), isolation and loneliness (Mahoney, 1997; Thoreson et al., 1989), substance abuse (Brodie & Robinson, 1991; Deutsch, 1985; O’Connor, 1998), and physical illness or disability (Brodie & Robinson, 1991; Guy, Poelstra, & Stark, 1989; Henry et al., 1973; O’Connor, 1998; Thoreson et al., 1989). Keeping in mind that there is not a clear dividing line between distress and actual professional competence problems, if we turn our attention to competence problems, estimates of its prevalence are variable. Some researchers have

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focused on competence problems in general without association to a particular source of distress. Thoreson et al. (1989) investigated a number of problems experienced by psychologists that led to distress, including marital problems, depression, and alcohol, among others. In many cases, Thoreson et al. also noted that these problems were co-occurring, which, as Barnett et al. (2005) noted, is likely to compound the effects of the distress and increase the probability that problems with professional competence will occur. Among the psychologists that Guy, Poelstra, and Stark (1989) studied, 36.7% reported that their experience of personal distress decreased the quality of patient care, and 4.6% acknowledged that the distress was so serious that it resulted in inadequate patient care. Finally, a nationwide survey of psychologists found that 60% of the respondents acknowledged that at some time in their careers, they had worked when they were too distressed to be effective (Pope, Tabachnick, & Keith-Spiegel, 1987). Some studies have gone further to investigate the specific source of distress that led to impairment. Relating back to some of the most common sources of distress, for example, marital and relationship problems, research that investigated the degree to which these problems have led to actual problems with professional competence indicated that this occurs between 15.2% and 25% of the time (APA, ACCA, 2007; Bernstein et al., 1994; O’Connor, 1998). Stress and anxiety has been reported to lead to rates of competence problems between 11.6% and 23% of the time (APA, ACCA, 2007; Bernstein et al., 1994; O’Connor, 1998). According to O’Connor (1998), 60% of the psychologists that he surveyed that had acknowledged physical health problems also indicated that those problems caused some level of impairment in their work, and 20% of those surveyed by ACCA (APA, ACCA, 2007) reported their functioning being affected by a major medical condition. Substance abuse is a difficulty that frequently can lead to problems with professional competence. Prevalence rates for substance abuse among psychotherapists have ranged between 7% and 11% (Brodie & Robinson, 1991; Deutsch, 1985; O’Connor, 1998) compared with estimates of alcoholism in the general population that have ranged between 6% and 10% (Thoreson, Budd, & Krauskopf, 1986b). Again,

because of the difficulties with the extant research, accurate estimates are elusive. Nonetheless, Guy (1987) stated that it is likely that therapists suffer from diagnosable psychopathology and substance abuse at rates that are similar to if not greater than the general population. Although they did not cite figures, Skorina, Bissell, and DeSoto (1990) interviewed a number of psychologists who were in recovery from alcoholism and stated that many of those interviewed were, “by their own admission, impaired while working” (p. 250). Similarly, in their study of alcoholic psychologists who were involved in a recovery organization, Thoreson, Budd, and Krauskopf (1986a) stated that their subjects reported substantial previous alcohol misuse at work, which indicated considerable job impairment. Furthermore, Pope et al. (1987) found that 5.9% of their sample of psychologists had acknowledged doing therapy while under the influence of alcohol; Wood, Klein, Cross, Lammers, and Elliott (1985) reported that 4.2% of the respondents in their survey indicated that drugs or alcohol had interfered with their work; and Bernstein et al. (1994) found that 1.3% of those surveyed acknowledged being impaired by alcohol and 0.3% by drugs. Another specific problem that has been linked to problems with professional competence is depression. Respondents in several studies revealed that their experience with depression led to some level of impairment in their professional functioning. The rates that have been reported have been 13.5% (Bernstein et al., 1994), 14% (Gilroy et al., 2002), 27% (O’Connor, 1998), and 32.3% (Wood et al., 1985), although the latter estimate combined depression and burnout. A topic that deserves special attention with regard to this discussion of competence problems and depression is that of suicide by psychotherapists, which Orr (1997) has described as the “ultimate impairment” (p. 294). Estimates of the incidence of suicidal thoughts and attempts among psychotherapists vary widely (Brodie & Robinson, 1991; Deutsch, 1985; Gilroy et al., 2002; Pope & Tabachnick, 1994; Skorina et al., 1990; Steppacher & Mausner, 1973). In terms of the numbers of completed suicides by mental health professionals, Guy and Liaboe (1985) noted that estimates vary considerably and range 191

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from numbers that are similar to the general population to four and five times above that rate. They also noted, however, that most studies have been flawed by sampling and methodological problems and argued that an accurate estimate has yet to be determined. Some data have suggested that suicide rates for male psychologists may be higher than in the general population (Ukens, 1995). Another subject deserving special consideration in this discussion of competence problems is sexual misconduct. (More information on this topic can be found in Chapter 11 of this volume). Standard 10.05 of the Ethics Code, Sexual Intimacies With Current Therapy Clients/Patients, strictly prohibits sexual intimacies with current patients (APA, 2010). Furthermore, Standard 10.08, Sexual Intimacies With Former Therapy Clients/Patients, also prohibits sexual relationships with former patients in almost every situation (APA, 2010; Knapp & VandeCreek, 2006). Additionally, sexual relationships with students and supervisees that are in one’s department or over whom one has evaluative authority also are prohibited in Standard 7.07 of the Ethics Code (APA, 2010). The fact that these prohibitions are so strong and unequivocal are due, in part, to the potential for severe harm to and exploitation of these individuals who are in a vulnerable position in relation to the psychologist (e.g., Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1983; Lamb, Catanzaro, & Moorman, 2003; Pope, 1994). Because of its severity, the mere existence of such a transgression is seen as evidence of a professional competence problem (Wood et al., 1985). Guy (1987) stated the following: Due to the potential for the therapist to exploit clients to satisfy his or her own sexual needs and desires, it is generally regarded that therapists engaging in sexual misconduct are unable to provide competent care to that client. In part this is due to the belief that in order for a therapist to engage in a behavior so universally condemned by the profession, he or she would need to be experiencing emotional distress severe enough to cloud judgment and reduce impulse control. (pp. 206–207) 192

Sexual misconduct is not a singular phenomena and has many different causes. The underlying dynamics are quite different among, for example, the professional who is inadequately trained and lacks awareness of transference and countertransference, the practitioner whose judgment is impaired as a result of addiction, and the predator with underlying psychopathology, such as antisocial or narcissistic personality disorder (Schoener, 2004). As discussed in Chapter 11 of this volume, there is disagreement within the field as to whether those who engage in sexual misconduct should be afforded opportunities for rehabilitation or simply should be removed from the profession. These disagreements notwithstanding, the good news is that there are some indications that the rate of therapist sexual contact with patients appears to be declining over the years (Lamb et al., 2003; Pope, 1994). A final finding regarding malpractice suits is worth discussing again in the context of competence problems. Just as being the victim of a malpractice suit was one of the most distressing experiences for therapists, Sherman and Thelen (1998) found this experience also resulted in the greatest degree of impairment. Similarly, in the ACCA (APA, ACCA, 2007) survey, being named in a licensing board complaint was described as negatively affecting functioning by 85.7% of those who had experienced that event. Again, these events occur relatively infrequently, but when they do, they appear to have a significant negative impact on those who are involved in the complaints. Therapists should be mindful of the potential threats to their emotional competence should they experience a suit or a complaint. In fact, Schoenfeld et al. (2001) suggested that psychologists who are named in a complaint might be seen as a special category of impaired professional to highlight the additional support that they may need from their fellow professionals during this extremely stressful time. Unfortunately, the type of support that is so important to our colleagues in their time of need often is not forthcoming, and this brings us to an important dynamic related to considerations regarding distress and impairment. Rather than seeing distress and impairment on a continuum on which everyone is at risk, many professionals tend to view things in a dualistic either–or manner.

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Seeing Other as Impaired One of the factors that can interfere with clinicians seeking help when needed is overidentification with the role as the healer. It is possible that this same mind-set also can affect our view of our colleagues. Seeing ourselves as the well-functioning ones who provide help to those in need, can cause us to view our colleagues who are having difficulties as somehow different from us. We come to believe that others are the ones who are in danger of professional competence problems, whereas we are not. When asked about their colleagues’ level of distress and impairment, therapists consistently rate their colleagues as distressed and impaired at higher rates than they rate themselves (e.g., Bernstein et al., 1994; Brodie & Robinson, 1991; O’Connor, 1998). Care must be taken, however, in interpreting these data because the rates are not directly comparable. Although individuals in these surveys are each reporting on their own levels of distress and impairment, when rating their colleagues, they are referring to all of the colleagues that they know. Therefore, in responding, many individuals may be referring to the same distressed or impaired colleague or group of colleagues, artificially inflating the rates in comparison to the self-reported rates. Nevertheless, Brodie and Robinson (1991) commented on how readily the respondents in their survey judged the problems experienced by their colleagues as leading to impairment. In their survey, the problem judged least likely to be impairing was relationship problems, but even then, 50% of respondents saw relationships as impairing their colleagues functioning. More direct evidence of the fact that we are more likely to label the same problems as more impairing when experienced by our colleagues than ourselves is found in a study by O’Connor (1998). In his survey of psychologists for 15 commonly reported problems, respondents were asked to indicate whether they had experienced the problem and whether they had been impaired by it. They also were asked whether they were aware of a colleague who had experienced the problem and whether the colleague had been impaired by it. His analysis of the results found significant differences for all 15 problems: Colleagues’ problems were judged as more impairing than the same problem for the self.

This reluctance to see our own condition as compromised, while readily labeling others who are suffering the same problems that way, leads to a dangerous situation in which we see our colleagues who are struggling as different or separate from ourselves (Gabbard, 1994; Good et al., 2009). This situation is perilous because it fosters denial and impairs our ability to be aware of, monitor, and attend to problems that may be arising (Freudenberger, 1986; Good et al., 2009). As O’Connor (1998) stated, By denying that impairment can happen to them, or by demonizing those who become impaired, psychologists are able to deny the personal relevance of such concerns. Impairment becomes a problem of some special class of not so appealing individuals, rather than a problem that could strike most any of us, in the right circumstances. (p. 15) This situation is also problematic because, as O’Connor (1998) noted, it leads us to marginalize and ostracize those in our community who need the most help. Gilroy et al. (2002) related that the most frequent negative experience for clinicians experiencing depression was the sense of isolation and withdrawal they felt from colleagues. Furthermore, the authors concluded that these experiences were “not a byproduct of their faulty perceptions of their colleagues but a very real phenomenon” (p. 406). The distancing that occurs may contribute to the very consistent finding that we not only fail to offer direct support to our colleagues, but also fail to provide the support that would come from intervening with those who are in distress or impaired. Talking directly to impaired colleagues and encouraging and assisting them to find help may be one of the most supportive things that can be done. Prudie Orr, a pioneer in the area of colleague assistance, has credited the intervention that her colleagues performed with her as literally saving her life (APA, Advisory Committee on Impaired Psychologists, 1994). Unfortunately, rather than reaching out to our colleagues, the research is clear that quite often we prefer not to get involved. The majority of studies regarding intervention with distressed or impaired colleagues relate to substance abuse, primarily 193

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alcoholism. In a study conducted with recovering alcoholic psychologists, Thoreson et al. (1986a) found that 46% never had been confronted by a colleague despite evidencing in the workplace considerable signs and symptoms of their problems with drinking. Similarly, numerous other studies have found that a large number of psychologists fail to intervene with their colleagues despite knowing that their professional functioning has been impaired by substance abuse or other problems (Floyd, Myszka, & Orr, 1998; Good, Thoreson, & Shaughnessy, 1995; Skorina et al., 1990; Thoreson et al., 1986b; Wood et al., 1985). The principle of beneficence and nonmaleficence of the Ethics Code states in part that “psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons” (APA, 2010, p. 3). Furthermore, Standard 1.04, Informal Resolution of Ethical Violations, states that “when psychologists believe that there may have been an ethical violation by another psychologist, they attempt to resolve the issue by bringing it to the attention of that individual” (APA, 2010, p. 4). Therefore, not only is intervening with an impaired colleague the right thing to do from a caring standpoint, it also is ethically mandated (Good et al., 1995; Smith & Moss, 2009). Why, then, don’t we do so? Part of the reason may lie in a lack of understanding of the ethical responsibilities. A disturbing finding in the survey of psychologists by Pope et al. (1987) was that 14.2% of the respondents believed that it was either absolutely unethical, or ethical only under rare circumstances, to file an ethics complaint against a colleague. Additionally, in investigating the reasons that individuals did not confront their colleagues, Floyd et al. (1998) found that 22% of their sample related that they were unsure as to their professional responsibility in the matter. Even when aware of the ethical obligations, not all clinicians are inclined to follow them. Bernard et al. (1987) found that 26% of the professionals they surveyed admitted that they would do less than they knew was ethically required regarding confronting a colleague with a drinking problem. 194

The belief that the individual’s job performance was not affected, and a lack of tangible evidence of impairment, were the reasons most frequently cited in research explaining why professionals do not confront their colleagues who are distressed or experiencing competence problems (Floyd et al., 1998; Good et al., 1995). Additional reasons include fear of a response of anger, hostility, or other negative outcome; not believing it would do any good; believing it was none of their business; fears that it was too risky for themselves; and fear that it was too risky for the colleague (Brodie & Robinson, 1991; Floyd et al., 1998; Good et al., 1995). It has been suggested that the profession needs to respond to this problem, and a number of actions have been suggested (these are discussed later in this chapter). Regardless of what actions are taken in the future, given the current state of affairs, it is absolutely clear that, as Skorina et al. (1990) stated, “psychologists must do better for one another” (p. 251).

Those Who Do Seek Help In concluding this section on distress and problems with professional competence, it must be noted that it is not all bad news. A significant number of professionals do seek help. Some examples include Deutsch (1985) who found that almost one half of her sample had sought therapy for relationship difficulties, more than one fourth had sought therapy for depression, and 11% had taken medication for depression. Sixty-seven percent of the individuals identified as depressed in the study by Gilroy et al. (2002) sought psychotherapy, and 31% took medication. Of those who reported some form of personal distress in the survey by Guy, Poelstra, and Stark (1989), 70% responded in some active way to reduce the distress, including seeking individual therapy (26.6%), reducing client load (17.2%), seeking family therapy (10.7%), temporarily quitting (10%), taking medication (4.1%), attending self-help groups (3.4%), and being hospitalized (2.2%). Ninety percent of the professionals in Mahoney’s (1997) study of psychotherapists’ personal problems acknowledged having had personal psychotherapy. In O’Connor’s (1998) study, help seeking varied with the type of problem and ranged from a low of 33% for sexual contact to 100% for physical health and

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suicide attempt or ideation. In the research conducted by Elliott and Guy (1993) regarding childhood trauma in mental health professionals, 78% of their sample of therapists had received therapy. Finally, 55% of those surveyed by Wood et al. (1985) who identified themselves as impaired had sought help, although the nature of this help was not specified. It would be better if these percentages were even larger. Nevertheless, they do indicate that even though professionals demonstrate a reluctance to judge or label themselves as impaired, a large number still do seek help for their distress and many are able to recover to a state of well functioning (Thoreson et al., 1986a). STUDENTS AND TRAINEES Because developing and maintaining emotional competence involves lifelong practices that begin with entry into the profession, it may be helpful to examine more closely that entry point: education and training.

The Stress of Professional Training Many of the same sources of stress and distress that affect practicing professionals also affect students and trainees. Additionally, other unique stresses are related specifically to the circumstances and processes involved in graduate school and internship. When students are surveyed regarding their sources of stress, concern over finances consistently appears at or near the top of the list (APA, ACCA, 2006; APA, ACCA, American Psychological Association of Graduate Students [APAGS], 2009; Cahir & Morris, 1991; Nelson, Dell’Oliver, Koch, & Buckler, 2001). Additionally, relocation to pursue graduate training or internship, lack of social support, juggling multiple roles, constant evaluation, and other academic pressures all have been cited as stressful factors for students and trainees (APA, ACCA, 2006; APA, ACCA, APAGS, 2009; Barnett & Chesney, 2009; Dearing, Maddux, & Tangney, 2005; Goplerud, 1980; Nelson et al., 2001). Guy (1987) reviewed the literature and identified a number of additional stressors associated with graduate training, including the vague and ephemeral nature of psychotherapeutic

work; the stresses associated with the changes in personality, values, and perspectives that students often undergo; competition; and relationships with faculty.

Distress and Problems With Professional Competence One’s emotional response to ongoing stress can result in distress. Much of the research involving student distress yields results that are similar to those involving practicing professionals. In his survey of graduate students, Goplerud (1980) found frequent reports of anxiety (89%), depression (50%), sleep problems unrelated to studying (32%), periods of intense somatic symptoms (27%), and flare-ups of chronic illnesses (18%). A recent survey of graduate students was conducted by ACCA in conjunction with APAGS (APA, ACCA, APAGS, 2009). Similar to professional surveys, students described a number of problems that disrupted their functioning significantly, including finances (36%), anxiety (30%), family issues (20%), physical health issues (18%), depression (16%), and alcohol or other substance abuse (0.8%; APA, ACCA, APAGS, 2009). In addition, distressing factors specific to students or those in academia also reported in the ACCA–APAGS survey included poor work and school-life balance (29%), academic and coursework responsibilities or pressures (25%), and research responsibilities or pressures (12%; APA, ACCA, APAGS, 2009). Just as unresolved distress can lead to problems in professional functioning for practicing professionals, this also is the case for those in training. Forrest, Elman, Gizara, and Vacha-Haase (1999) conducted an extensive review of the literature on training programs’ experience with students who demonstrated professional competence problems. In summarizing the results, they noted that 66% to 95% of the academic or internship programs studied reported having at least one trainee with a significant problem, and that the annual rate of professional competence problems in students ranged from 4.2% to 4.6%. The most common difficulties identified were clinical deficiencies, interpersonal problems, problems in supervision, and personality disorders. Their conclusion was that every academic program or internship regularly deals with at least one trainee who has problems with professional competence. In another 195

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study of doctoral psychology programs, 89% of the respondents reported at least one case of “nonacademic, professional deficiency” (Procidano, BuschRossnagel, Reznikoff, & Geisinger, 1995, p. 429) among their students in the past 5 years. Limited clinical skills and personality or emotional problems were the most frequently cited deficiencies. VachaHaase, Davenport, and Kerewsky (2004) surveyed training directors in APA accredited academic psychology programs. Fifty-two percent of the programs reported that they had terminated a student within a 3-year period. The most commonly reported problematic behaviors included inadequate clinical skills, defensiveness in supervision, and deficient interpersonal skills. Finally, Huprich and Rudd (2004) found that 98% of the doctoral programs acknowledged having a student with competence problems within the past 10 years, compared with 68% for internships. Additionally, 65% of the doctoral programs reported currently having one or more such students, while 10% of the internship sites indicated that they had one current trainee with professional competence problems. The top five problems that were reported were adjustment disorder, alcohol problems, anxiety symptoms, depressive symptoms, and personality disorder. In comparing their findings with those of previous studies, Huprich and Rudd (2004) concluded that rates of professional competence problems among students and trainees have remained relatively stable over time and that they have continued to be pervasive.

Diversity and Competence Problems It also is important to keep in mind the impact of issues related to diversity when considering students’ problems with professional competence. Beyond some rather superficial investigation into whether race or gender was a factor in decisions regarding the identification of competence problems or termination of interns (Boxley, Drew, & Rangel, 1986; Tedesco, 1982), little research has been conducted in this area. Left to speculation, then, Kaslow, Rubin, Forrest, et al. (2007) concisely described some possible sources of concern: Trainers and professional supervisors might over- or under-identify problematic 196

behavior because of cultural naiveté, fear of appearing racist or sexist, difficulty in addressing the complexity involved in the intersection of cultural differences and competence problems, inverted positional power, differential standards based on conscious or unconscious bias, and/or fears of litigation. (p. 484) Obviously, these issues are complex and further research is critical; however, at the present time, being familiar with the existent literature on multicultural competencies is recommended as an essential step (Forrest et al., 1999). Simply put, an awareness of and attention to the importance of cultural differences must play an integral part in the process of identifying and responding to students who are believed to have problems with competence (Kaslow, Rubin, Forrest, et al., 2007).

Identifying and Addressing Professional Competence Problems Students with professional competence problems are a significant challenge that every program involved in the preparation and training of psychologists experiences. Unfortunately, however, it seems that these programs as well as individual administrators, instructors, and supervisors often find themselves ill prepared to deal with such situations when they do occur. In a survey of doctoral and internship programs, Huprich and Rudd (2004) found that 42% of the doctoral programs and 16% of the internships did not have a formal program or policy to deal with problematic trainees. Similarly, in another survey, 53% of the programs acknowledged not having a written policy or guidelines to deal with students who have professional competence problems (Vacha-Haase et al., 2004), despite the fact that the APA accreditation standards require such written policies (APA, 2009). Another difficulty in identifying and addressing student professional competence problems involves the lack of preparation that faculty and supervisors receive for undertaking this role. As can be seen from the data just mentioned, often there is no model for dealing with these problems (Elman, 2007). Additionally, as a result of the lack

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of attention that many training programs give to this area, many trainers are unfamiliar with the concept and do not even have a clear definition of what constitutes problems with professional competence (Gizara & Forrest, 2004). Furthermore, many individuals may experience a conflict between their educative, nurturing and advocacy roles and their evaluative role (Forrest et al., 1999). In one study of supervisors who have had to intervene with a trainee, the participants described feeling unprepared, isolated, and extreme emotional distress (Gizara & Forrest, 2004). This highlights the importance of emotional competence for the trainers in these programs. When these individuals encounter a student who has problems with professional competence, they need to be able balance their multiple roles. Furthermore, they need to be aware of how their own needs and preferences, including such factors as tolerance for conflict, affect their ability to confront trainees’ problems when they arise (Robiner, 2008). Similarly, in discussing the sometimes difficult task of combining both mentoring and evaluating roles, Rodolfa and Schaffer (2008) emphasized the need for faculty and supervisors to monitor their feelings and behaviors in relation to their students. Regrettably, this often does not happen, and supervisors assume that someone else will address the issue. The responsibility for dealing with trainees with competence problems is passed back and forth between academic programs, internship sites, and licensing boards, in what Johnson (2008) described as a game of “hot potato” (p. 589). Trainees’ peers are another potential source for identifying those with professional competence problems. They are likely to interact with these individuals more frequently and in more settings than faculty or supervisors do. Although research in this area is very limited, two studies did find that a high numbers of students (95% and 85%) reported knowing of at least one peer with problems in professional functioning (Mearns & Allen, 1991; Rosenberg, Getzelman, Arcinue, & Oren, 2005). A number of students in one survey indicated that they had directly confronted the colleague who was experiencing the problem (42%) or talked with faculty (26%; Mearns & Allen, 1991), but the most commonly reported response of students

was to gossip or consult with each other (Mearns & Allen, 1991; Rosenberg et al., 2005). The same ethical obligations to intervene in a more proactive and direct way with colleagues in the context of practicing professionals apply to students as well. Nevertheless, as found with practitioners, students also have reported that although they are aware of their ethical obligations, they are likely to actually do less than they know they should (Bernard & Jara, 1986). In the case of students, however, the responsibility for dealing with competence problems is clearly shared, and most would say primarily rests, with the training institutions. Unfortunately, many programs do not have clearly defined procedures and policies and do not adequately train and equip their faculty to deal with these problems. This results in a great deal of anger and frustration on the part of students toward faculty for either their lack of awareness or lack of response to the problems of their peers (Rosenberg et al., 2005). Of particular importance is what appears to be a lack of awareness on the part of faculty regarding the significant emotional impact that problematic peers have on students (Mearns & Allen, 1991). A final potential source for the identification of students with problems with professional competence is the student themselves. Ideally, students are aware of the potential for stress and distress to negatively affect professional functioning, and if they are practicing self-monitoring, then in many cases, affected students should be able to identify themselves as being at risk for competence problems. Unfortunately, this does not appear to be happening (Vacha-Haase et al., 2004). Despite evidence that students would welcome and prefer open discussions regarding problems with professional competence, these do not appear to be occurring with any frequency in training programs (Mearns & Allen, 1991; Rosenberg et al., 2005; Tindall, 2009). Furthermore, concerns regarding how students will be received by faculty as well as the potential impact on their standing in the training program are significant factors in students’ unwillingness to admit problems or seek help (Dearing et al., 2005; Holzman, Searight, & Hughes, 1996). One student described her experience of self-identifying and reporting to her training program that family problems were interfering with her professional 197

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functioning. She related that the program was unable to effectively deal with her situation, and she essentially was left to her own devices. She ended up petitioning the program for a leave of absence and created a program of remediation for herself. To her credit, she did this and ultimately resumed and completed her training (anonymous, personal communication, May 26, 2010).

Remediation or Termination When it is identified and acknowledged that a student has a professional competence problem, how is it dealt with? Although data regarding the actual practices of training programs are sparse, and the experience of the student just described notwithstanding, it appears that a common approach is to develop a plan of remediation for the student. A number of strategies have been described or proposed to assist in addressing trainee deficiencies, including personal therapy, repeating coursework or practica, increased advising, mentoring or supervision, personal growth groups, leave of absence, and mobilization of support systems (Forrest et al., 1999). Unfortunately, empirical data are lacking to support the efficacy of these practices (e.g., VachaHaase et al., 2004). The use of personal therapy to remediate trainee competence problems deserves special attention. The few studies that have been conducted in this area indicate that training programs use this remediation strategy the most (Forrest et al., 1999). Despite this fact, no empirical research demonstrates the effectiveness of psychotherapy in remediating problems with professional competence (Kaslow, Rubin, Forrest, et al., 2007). Standard 7.05 of the Ethics Code, Mandating Individual or Group Therapy, does allow training programs to mandate individual or group therapy. Furthermore, an exception to the prohibition against requiring students or supervisees to disclose personal information, such as psychological treatment, is described for cases that involve problems with competence in Standard 7.04, Student Disclosure of Personal Information. In its 1986 report, however, the APA Ethics Committee (APA, 1987) discussed the ethics of required psychotherapy for students, and identified six guidelines to promote 198

sound ethical practice relating to informed consent, dual relationships, choice of therapists, credentials of the therapist, limits of confidentiality, and financial obligations. When personal psychotherapy is chosen to address a trainee competence problem, a tension arises for the training program between protecting the student’s confidentiality and ensuring accountability and effective remediation. This tension is evident in the findings of Elman and Forrest (2004) who interviewed training directors of doctoral psychology programs regarding their experiences and practices in the utilization of psychotherapy to address student problems with professional competence. The majority of training directors utilized a hands-off approach that favored the protection of students’ confidentiality at the expense of their ability to obtain important information regarding the therapy and assurances of competence. Elman and Forrest provided a number of suggestions for improving the quality and effectiveness of psychotherapy as a remediation tool and concluded by stating that “training programs need to reduce their ambivalence about involvement in personal psychotherapy when it is used for remediation” (p. 129). When remediation is not effective, one might think that the only options left for the training program are to counsel students toward a voluntary withdrawal or terminate them from the program; even then, however, this is not an easy choice. In the Elman and Forrest (2004) study, four cases were described in which students were graduated with doctoral degrees despite the fact that training directors held serious concerns regarding their competence to practice. Fear of litigation, as well as the hope that another body such as the licensing board would serve as the gatekeeper, may contribute to a training program’s reluctance to terminate a student (Johnson, 2008; Vacha-Haase et al., 2004). Nevertheless, between 52% and 86% of training programs reported that they have dismissed at least one student every 3 to 5 years (Forrest et al., 1999). Common reasons for termination included poor academic performance, poor clinical performance, poor interpersonal skills, and psychological problems or emotional instability (Forrest et al., 1999).

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Training Concerns All of these considerations relate to the situation in which the student already has progressed from stress and distress to experiencing problems with professional competence. Ideally, students are prepared through the training and experiences in their academic program and internship to be aware of and prevent problems in their professional functioning and, in particular, their emotional functioning. To produce emotionally competent professionals, however, training programs need to provide specific training in a number of vital areas. They also need to encourage in students the development of habits and practices that will begin with training and continue throughout their professional careers. This section focuses on some of the topics that should be considered in this regard. A serious threat to emotional competence is the lack of reflection and self-assessment. Emotionally competent professionals must constantly be aware and thoughtful regarding their emotional functioning. In fact, one might say that self-awareness is a prerequisite for emotional competence, and self-assessment is essential for ongoing emotionally competent practice. It is clear that training in self-assessment needs to begin early in the education process and a culture that supports, encourages, and values self-assessment must be developed (Kaslow, Rubin, Forrest, et al., 2007; Roberts et al., 2005). Unfortunately, training in this area has been lacking (Kaslow, Rubin, Bebeau, et al., 2007) and faculty and supervisors have been ill equipped to address it as well (Elman, 2007). In addition to reflection and self-assessment of one’s ongoing emotional functioning, another area that training programs should focus on relates the “dysfunctional motivators” that contribute to the choice of a career as a psychotherapist (Guy, 1987). Students’ emotional competence could be enhanced if they were encouraged to reflect on and consider the impact of all of their underlying motivations for wanting to become a therapist (Fussell & Bonney, 1990; Murphy & Halgin, 1995). Another area related to emotional competence is the need for increased focus on and attention to the interpersonal skills of trainees. Interpersonal functioning is an essential aspect in all competency domains in psychology (Kaslow, Rubin, Bebeau,

et al., 2007). Furthermore, relationship skills are seen as the foundation on which all other skills for the therapist are built (Asay & Lambert, 2002). Despite this central importance, training programs have been found lacking in this area and need to focus more attention and effort on evaluating and developing these skills in their trainees (Kaslow, Rubin, Bebeau, et al., 2007; Oliver, Bernstein, Anderson, Blashfield, & Roberts, 2004; Orlinsky & Rønnestad, 2005). Recalling the importance of emotions and intuitive processing in ethical decision making, it stands to reason that graduate training in ethics also should focus on the importance of affect in dealing with ethical dilemmas. Unfortunately, this is not always done. In fact, Mearns and Allen (1991) described this as a “serious deficiency in the way most ethics courses are currently structured and taught” (p. 200). The evaluation of ethical behavior in conducting research is another area that can be affected by underlying emotional competence problems, but too often is overlooked by many programs (Forrest et al., 1999). Furthermore, given the numerous and unique stressors involved in the practice of psychology in general and psychotherapy specifically, it also is important for training programs to prepare students to face these stressors (Gilroy et al., 2002; Rosenberg et al., 2005; Vacha-Haase et al., 2004). This preparation should begin with the challenges involved in graduate training. Forrest, Elman, and Shen Miller (2008) discussed the importance of preparing trainees to anticipate the stresses involved in important transitions, such as the first practicum or leaving for an internship. Additional topics that should receive greater focus in training include dealing with patient suicide (Ellis & Dickey, 1998; Kleespies & Dettmer, 2000); managing aggressive patient behaviors such as stalking, harassment, and violence (Guy et al., 1990; Miller, 1998; Purcell et al., 2005; Romans et al., 1996) as well as sexual harassment (deMayo, 2000); and addressing vicarious traumatization and compassion fatigue (Gilroy et al., 2002; Good et al., 2009; Neumann & Gamble, 1995). Another area in need of greater attention by training programs and of particular relevance to the subject of emotional competence is the therapist’s 199

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ability to deal with difficult emotions related to therapy. The practice of psychotherapy can evoke a variety of difficult emotions in the therapist, including anger, fear, and sexual feelings (Pope, Keith-Spiegel, & Tabachnick, 1986; Pope, Sonne, & Holroyd, 1993; Pope & Tabachnick, 1993). Unfortunately, when surveyed, many psychologists describe their graduate training as inadequate in preparing them to deal with these feelings (Pope & Tabachnick, 1993). Of particular concern are feelings of sexual attraction and arousal. Despite the fact that research consistently has found that these feelings are experienced by a majority of therapists (e.g., Pope et al., 1986; Pope & Tabachnick, 1993; Rodolfa et al., 1994), one survey found that 65% of the respondents judged their graduate training in this area to be nonexistent or poor (Pope & Tabachnick, 1993), and another reported that 67% said that they had received either no or very little education regarding these feelings (Pope et al., 1986). Additionally, training programs should be aware of, and prepared to deal with, trainees’ feelings about practicing therapy. Orlinsky and Rønnestad (2005) noted that beginning therapists are more likely to feel anxious in therapy and recommend that trainers attend to these feelings and help students manage them lest they have a negative impact on the therapeutic interaction. Beyond preparing students to deal with the many stressors that they are likely to encounter as a psychologist, training programs also need to help them to understand the consequences of unresolved stress and distress in the form of problems with professional competence. Given the previously mentioned tendency to see those with competence problems as other and not like ourselves, it is extremely important that training programs provide the clear and consistent message that everyone is vulnerable to experiencing professional competence problems (O’Connor, 2001). Unfortunately, this often is not being done, and as Schoener (2007) noted, models for teaching students and trainees about competency problems are “conspicuously absent” (p. 611). Despite numerous calls for the inclusion of information regarding competence problems in graduate curricula (e.g., Floyd et al., 1998; Forrest et al., 1999; Kramen-Kahn & Hansen, 1998; Smith & 200

Moss, 2009), significant deficiencies remain. Sadly, open discussions regarding the universality of our vulnerability to potential competence problems often are absent from graduate programs and may even be discouraged by the training culture (Elman, 2007). In considering the research that indicates that, by and large, practicing professionals who are aware of colleagues with professional competence problems do not intervene, it seems that one place to begin to reverse this disturbing trend would be in graduate training. Again, if more open conversations were held in training programs regarding how competence problems can affect everyone, perhaps individuals would feel less of a need to distance themselves from their struggling colleagues. Also, specific education in the ethical obligation to address a known problem with a colleague as well as specific training in the techniques and skills in doing so would be helpful (Forrest et al., 1999; Good et al., 1995; Lamb et al., 2003). Finally, training programs should develop clear processes and procedures and provide them to students so that they will know what to do should they encounter a peer who is exhibiting problems. This will provide students with valuable experience that they can carry into their professional practice (Rosenberg et al., 2005). Forrest et al. (1999) stated the following: During professional training, students should be provided opportunities to struggle with the difficult tasks of confronting and being confronted by peers about questionable professional behavior, developing the skills to address colleagues’ behaviors in a professionally constructive manner, and responding productively when confronted about one’s own professional behavior. (p. 674) A final area of concern for training programs whose goal is to produce emotionally competent professionals is self-care. Because of the essential part that self-care plays in maintaining emotional well functioning, it is considered an ethical imperative. Many writers who have discussed the importance of self-care also have noted that it must be a lifelong habit that is practiced throughout one’s

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entire professional career, ideally beginning with graduate training (e.g., Baker, 2003; Elman, 2007; Gilroy et al., 2002; Knapp & VandeCreek, 2006; Norcross & Guy, 2007; Schwebel & Coster, 1998). As with many of the concerns discussed in this section, however, it seems that this, too, is more an ideal than a reality (Barnett & Chesney, 2009). In a survey of graduate students conducted by ACCA (APA, ACCA, 2006), 83% of the respondents said that their training program did not provide written materials on self-care and stress, 63% said that their program did not sponsor activities to promote and educate students on issues of self-care and stress, and 59% indicated that their program did not informally promote an atmosphere of self-care. Too often, faculty and supervisors do not model healthy self-care practices. As a result, the implied message is that these activities are not valued as highly as factors such as academic success (Elman, 2007). This leads to our next topic: the vital importance of the culture of the training program.

Training Program Culture Beyond the specific topics or concepts that can be taught in class, perhaps more important in the development of the emotionally competent professional is the overall culture of the training program. The culture of the training program communicates to the students the underlying values and attitudes of the faculty. Often what is not talked about can have greater significance than what is. In discussing the teaching of ethics, Knapp and VandeCreek (2006) distinguished between the explicit curriculum that is taught in a formal class and the implicit or underground curriculum that is transmitted through the informal atmosphere of the institution, as well as the oral tradition of the program that is found in the stories and jokes that are passed down through the generations of students and faculty. In the same way, messages and values regarding the importance of all of these training concerns, from self-assessment to self-care, are communicated implicitly to students. (More information on creating an ethical culture in academia can be found in Volume 2, Chapter 12, this handbook.) One of the most important ways that values are communicated in training settings is through role

modeling and the attitudes of faculty and supervisors. Dearing et al. (2005) discussed a process of socialization that occurs in graduate training whereby the attitudes of faculty and supervisors influence students’ attitudes. In their study of psychology graduate students, they found a significant positive relationship between favorable faculty attitudes toward students receiving psychotherapy and students’ help-seeking behavior. In addition to serving as role models, faculty members also function as an important source of support and guidance for trainees (Guy, 1987). Goplerud (1980) found that more frequent social interactions with faculty outside of the classroom were associated with reduced physical and emotional problems for students in their 1st year of graduate study. Given the unique and often stressful demands of psychological practice, as well as the centrality of the person of the therapist and their emotional well functioning to the success of therapy, perhaps what is needed most by psychologists in training is the presence of supportive, appropriate, and vulnerable role models (Barnett & Chesney, 2009; Elman, 2007; O’Connor, 2001). Students need their faculty and supervisors to openly acknowledge their humanness, engage in honest self-assessment, and discuss the stresses and difficult feelings that arise in the course of practicing psychotherapy and how they deal with them. O’Connor (2001) well described this need in contrast to the current state of affairs when he stated the following: Public discussion of personal mistakes we commonly make in our craft is rare. Analytical discussion about psychological theory or psychotherapy cases may be more common. And this is the model we commonly provide our trainees, thereby ensuring an ongoing silence. How many trainees have struggled with the feeling that they are not perfect enough for their intended profession? How many, who should be concerned about their performance, are not? On a bad day, how do these individuals handle their clients? The most important consideration, here, 201

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is the presence or absence of appropriate, authentic, personal disclosure and selfexamination. A supportive, appropriately self-disclosing supervisor can do much for these students, with a model that moves beyond therapeutic technique and focuses on the person of the therapist as the instrument of treatment, sharp or dull. (p. 347) The comment by Skorina et al. (1990)— “psychologists must do better for one another” (p. 251)—applies to students and trainees, and we must do better for them as well.

PRESERVING AND ENHANCING WELL-BEING AND EMOTIONAL COMPETENCE A positive ethics approach suggests that it is not just a matter of avoiding problems or simply meeting the minimum standard when it comes to emotional competence. Instead, we should be striving to maximize our emotional competence both for the good of ourselves and the people with whom we work (Bennett et al., 2006; Knapp & VandeCreek, 2006). So the question is not only how do we preserve or maintain our current level of emotional competence, but how can we enhance it as well? A helpful perspective in conceptualizing the answer to this question was described by Forrest et al. (2008). In discussing psychology trainees with competence problems, they noted that too often the problem is seen as located within the individual. Instead, they suggested that a more accurate understanding of competence problems in trainees would be obtained by utilizing an ecological model based on the work of Bronfenbrenner’s (1979, 1989, 1995) conceptualizations regarding human development. Bronfenbrenner described human development as the result of interactions between the individual and the various environments or systems in which they exist, as well as the interactions between the systems themselves. The systems are nested in one another and progress from those more proximal to the individual (microsystem and mesosystem) to more distal (exosystem and macrosystem). Also 202

important in this model is the concept of bidirectional influence in which interactions, both between the individual and the various environments as well as between the various systems, are seen as influencing and exerting change in both directions. Forrest et al. (2008) argued that utilizing Bronfenbrenner’s ecological model in conceptualizing and dealing with trainee competence problems not only would result in a more accurate understanding of the problem and individuals in all of their contexts, but also would lead to the development of more effective responses, policies, and interventions. In the same way, attempting to identify ways to preserve and enhance emotional competence should not be limited only to the individual perspective, but also must include consideration of all of the contexts within which that individual exists. Considering the more distal environments first, one area of focus for preserving and enhancing emotional competence should be the activities and policies of professional organizations such as the APA. Numerous authors have inferred from the Ethics Code that there is an ethical mandate for self-care (Barnett et al., 2005; Knapp, & VandeCreek, 2006; Norcross & Guy, 2007). The APA, however, could further underscore the importance of self-care by including specific references to it in future revisions of the Ethics Code, as suggested by Gilroy et al. (2002) and as is already the case in other professional codes of ethics (American Counseling Association, 2005; Feminist Therapy Institute, 2000). An example of the interaction between environments that is described in the ecological model can be seen in the relationship between APA as an accrediting body and the training programs that provide graduate education and experience for psychologists. As mentioned in the section Training Concerns, training programs can improve in a number of areas that will increase their ability to produce emotionally competent clinicians (e.g., better training to help faculty and supervisors manage their evaluative roles; more open discussion regarding the difficult feelings that arise in therapy; more appropriate, vulnerable role modeling by trainers, etc.). Not only do training programs have a responsibility to make these changes, but the APA, through the accreditation process, also can support and encourage the training programs to ensure that

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the necessary changes are made. The fact that APA accreditation standards require written policies for dealing with students who have professional competence problems (APA, 2009) but that when surveyed, large numbers of programs have no such written policies (Huprich & Rudd, 2004; Vacha-Haase et al., 2004) reveals that these environments are not working together as effectively as they should. Another area in need of greater national and professional attention is that of the ACCA developmental model describing the process of stress that can lead to distress, which can lead to problems with professional competence. Several authors have discussed from a historical perspective what appears to have been initially a somewhat ambivalent response on the part of APA to the issue of distress and impairment among psychologists (e.g., O’Connor, 2001; Schoener, 2007). Improvements and progress have been made over the years, but a great deal remains to be done. If we are going to move away from the dualistic mind-set in which those with professional competence problems are seen as different and separate from the rest of us, a culture shift must occur. From the beginning of training and continuing throughout one’s professional career, there must be a consistent message that we all are vulnerable to stress, distress, and potential professional competence problems. Although workshops on self-care do appear to be on the rise, additional research as well as continuing education and training on topics such as the prevalence of professional competence problems, confronting and supporting a struggling colleague, and so forth would be helpful (Floyd et al., 1998; Smith & Moss, 2009; Thoreson, Nathan, Skorina, & Kilburg, 1983). Gilroy et al. (2002) have suggested that continuing education credits could be provided for those who engage in various selfcare activities. Additionally, given the data demonstrating higher levels of distress and burnout in institutional and agency settings, these systems also merit attention when considering ways to preserve and enhance emotional competence. It would be important for these environments to find ways to acknowledge and mitigate, as much as possible, the stressful aspects of their work setting as well as encouraging and supporting self-care and the development of a

healthy professional environment (Gilroy et al., 2002; Skovholt, 2001). Remembering the bidirectionality of influence, practitioners must strive to change their work environments as well (Norcross, 2000; Skovholt, 2001). Another specific area that has the potential for great impact in preserving and enhancing emotional competence is colleague assistance. From the perspective of the ecological model, colleague assistance can be seen as a system with both proximal and distal aspects. Proximally, an individual can directly interact with a local CAP, while distally, the APA (through groups such as ACCA) can support colleague assistance on a national level as well as assist and encourage the growth and development of local programs. The utilization rates of many of the initial CAPs developed by states have been very low (Barnett & Hillard, 2001; Floyd et al., 1998). Many of these early programs, however, focused solely on impairment and often specifically on substance abuse. This narrow focus, as well as the reluctance of psychologists to identify themselves as impaired, may have contributed to the demise of these early programs (Oraker & Tamura, 2007). More recently, however, the concept of colleague assistance has been expanded to utilize the ACCA developmental model and include in its mission a broader array of activities including prevention and self-care along with support and remediation (APA, ACCA, 2005). Perhaps as a result of these changes in focus, there currently appears to be a resurgence of interest in some states in the development of CAPs. In addition, it is possible to look at the literature related to impairment and problems with professional competence and derive some general guidelines for CAPs to help average psychologists to flourish. For example, knowing the stressors inherent in the role of a psychotherapist can help psychologists anticipate them and develop the skills and professional (or personal) resources to reduce their impact. Furthermore, the shifting of the roles of CAPs suggests the benefits of focusing on flourishing as well as avoiding competence problems. Thus, the goal can be to help all psychologists become the best that they can be, as opposed to helping only a few avoid problems with professional competence. 203

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A final ecological consideration for promoting and enhancing emotional competence from a distal perspective relates to the interactions between the entities of colleague assistance, ethics committees, and licensing boards. Although these entities each have unique areas of concern, a number of areas also overlap and are of interest to all three entities, including public protection, education, prevention, ethical practice, and maintaining competence. Historically, state professional associations and licensing boards have often had contentious relationships, but it is the position of ACCA that both the public and the profession would be better served through increased collaboration and cooperation between these groups (APA, ACCA, 2005; Tamura & Davis, 2008). By working together, these groups can do a great deal to support the enhancement and preservation of emotional competence in individual professionals. This is, in fact, being accomplished on a national level as evidenced by recent collaborations between ACCA, the APA Ethics Office, and the Association of State and Provincial Psychology Boards (ASPPB; e.g., Barnett, Johnson, ChildressBeatty, & Behnke, 2008; DeMers & Nutt, 2008; Tamura & Davis, 2008). This cooperation also is being replicated on the state and local levels where, for example, licensing boards are working with professional associations to establish CAPs, but much more still can be done in this area. Turning to a more proximal perspective, the individual practitioner and the individuals and systems with which he or she comes into direct contact also can do much more to preserve and enhance emotional competence. Before discussing specific items, however, three broad and overarching principles should be noted: (a) You must be aware, (b) you must be proactive, and (c) you must be flexible. From a broad perspective, self-awareness and self-monitoring are essential aspects of professional competence and well functioning (e.g., Coster & Schwebel, 1997; Norcross & Guy, 2007; Rupert & Kent, 2007; Schwebel & Coster, 1998). More specifically, awareness is a fundamental prerequisite for maintaining and enhancing emotional competence. It is essential that psychologists continually reflect on and monitor their emotional functioning if they are to ensure their emotional competence. 204

Additionally, referring once again to the ACCA developmental model (APA, ACCA, 2005), it is important to remember that everyone experiences stress and distress. It is inevitable and should be expected. Ongoing distress that is left unaddressed can lead to problems with professional competence in general, and emotional competence problems, specifically. Therefore, it is critical for professionals to not only be aware of their emotional functioning, but also to monitor their levels of stress and distress. Simply being aware of the presence of distress is not enough, however. The second principle (being proactive) relates to the difficulty involved in discerning when the transition from distress to a competence problem has occurred. As Barnett (2008) pointed out, “The line between distress and impairment may only be seen in the rearview mirror” (“Impaired Professional Competence,” para. 3). In other words, it is only in retrospect that individuals are able see that their distress has evolved into a competence problem. Therefore, to avoid crossing that line, it is crucial that professionals are constantly and consistently working in a proactive way to mitigate and address the impact of stress and distress in their lives. The third broad principle (being flexible) relates to the fact that emotional competence is not like intellectual competence. Once intellectual competence is attained, it is generally retained and often increases with time and experience. In contrast, because our experiences of stress and distress can and do vary greatly over our professional career, emotional competence can be variable as well (Pope & Brown, 1996). It is crucial, therefore, that individuals are not only aware and proactive, but also flexible. Not only do our experiences of stress and distress change over time, so do our work environments, life situations, resources, and so forth. As a result, what might have worked for one situation at one point in time might not work for another, and it is important that we are flexible and open to creating new strategies to deal with our ever-changing challenges and circumstances (Pope & Vasquez, 2005). Turning to more specific strategies that psychologists can utilize to preserve and enhance their emotional competence brings us to the topic of self-care.

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Taking care of ourselves is an activity that is essential to maintaining emotional balance and well functioning as well as mitigating the negative effects of stress and distress. A review of recent articles, conference presentations, and workshops reveals that self-care has been an increasingly popular subject of discussion. Self-care is a multifaceted and broad topic, however, and several books have been written on this subject. As a result, an in-depth treatment of this subject is beyond the scope of this chapter, and it is suggested that the reader consult these more comprehensive resources for further information (e.g., Baker, 2003; Kottler, 1999; Norcross & Guy, 2007; Weiss, 2004). In addition, as psychologists, the majority of us are quite familiar with many selfcare strategies because they are the same things that we encourage our patients to do in their lives (e.g., maintain good boundaries, exercise, cultivate spirituality, etc.). The problem is not so much that we do not know what to do, but rather we do not make the things that we know would help a priority. Nevertheless, several aspects of self-care still may be useful to highlight in this context. Because there are an almost limitless array of possibilities with regard to specific self-care techniques and because individual preferences vary so widely, one suggestion has been to focus initially more on broad strategies rather than techniques. Norcross and Guy (2007) identified 12 broad strategies related to self-care and advised that once a particular strategy has been identified (e.g., sustaining healthy escapes) then the individual can explore and discover the specific techniques for implementing the strategy that works best for them (e.g., hobbies, vacation, meditation, massage, etc.). Whatever selfcare strategies or techniques are utilized, they must fit the individual, and what works for one person may be completely wrong for another (Pope & Vasquez, 2005). Again, although I do not discuss here all of the potential self-care strategies, two strategies do warrant further attention. The first one relates to the crucial need to establish and maintain supportive and nurturing relationships. The isolation often inherent in the work of the psychologist poses a significant threat to emotional competence. Additionally, both personal and professional

relationships are essential to our well functioning (e.g., Baker, 2003; Coster & Schwebel, 1997; Harrison & Westwood, 2009; Norcross, 2000; Rupert & Kent, 2007). In one recent survey of psychologists, seeking support from friends or peers was reported as the number one most effective strategy in coping with personal or professional challenges. Talking to a colleague was number three on the list in the same survey (APA, ACCA, CLASP, 2009). The simple truth, as Bennett et al. (2006) have stated, is that “you cannot go it alone” (p. 6). In the professional realm, then, an important source of support comes from frequent interactions with peers. These interactions can be informal or formal and involve an individual or a group. Regular peer consultation or supervision groups often have been recommended as a way to provide personal support as well as professional development and to encourage the ongoing process of self-reflection (e.g., Barnett, 2007; Good et al., 2009; Mahoney, 1997; Orlinsky & Rønnestad, 2005). Unfortunately, particularly for those in independent practice, as with many self-care practices, these activities often remain in the category of good intentions and do not become reality. Busy schedules and the demands of running a practice can make connecting with peers quite a challenge. Nevertheless, being intentional and making these kinds of contacts a priority is essential in order to preserve and enhance one’s emotional competence. Returning to the ecological model and the concept of bidirectional influence, it is not only important for individuals to establish connections and find sources of support for themselves, but also equally important for us as psychologists to reach out and care for our colleagues. Remembering that all of us are vulnerable to the effects of stress and distress, we must continually work to create a more supportive and caring professional environment. These efforts might be informal and simply may take the form of taking the time to expressing genuine interest in how our peers are doing (Weiss, 2004), or they may involve more directly confronting or expressing concern when we see signs that a colleague may be struggling. More formal efforts to create a supportive professional environment might take the form of becoming involved in and participating in CAPs or 205

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other colleague assistance efforts through a local or state psychological association. Finally, a section on self-care would not be complete without a discussion of personal psychotherapy. Virtually every in-depth discussion of the topic of self-care includes personal therapy as a key strategy (e.g., Baker, 2003; Barnett, 2007; Kottler, 1999; Mahoney, 1997; Norcross & Guy, 2007; Weiss, 2004), and for good reason. Psychotherapy often has been cited as an important if not essential component in the training and professional development of the therapist (Henry et al., 1971; Norcross, 2005; Orlinsky & Rønnestad, 2005; Yalom, 2002). It can contribute to the improvement of one’s clinical skills (Macran, Stiles, & Smith, 1999; Norcross, StrausserKirtland, & Missar, 1988; Peebles, 1980; Wiseman, & Shefler, 2001; Wogan & Norcross, 1985). Many have deemed it so important to the development of the clinician that they have argued that personal therapy should be required or at least strongly encouraged during graduate training (Gilroy et al., 2002; Guy & Liaboe, 1986b; McWilliams, 2005; Norcross, 2005; Pope & Tabachnick, 1994; Schwebel & Coster, 1998). But, personal psychotherapy should not be seen as a tool only to be used during training. It can be tremendously helpful not only in the development of clinical skills, but also in mitigating the effects of stress and distress, addressing personal difficulties, and maintaining emotional balance and well functioning (Baker, 2003; Norcross, 2000; Norcross & Guy, 2007; Orlinsky & Rønnestad, 2005; Weiss, 2004). Because for the therapist, the personal is professional and maintaining emotional competence requires occasionally sharpening our primary tool: ourselves. Barnett and Goncher (2008) have argued that personal psychotherapy should be seen as an ethical mandate at different points in a psychologist’s career. Norcross and Guy (2007) summed it up well when they described personal therapy “as a prerequisite to conducting psychotherapy and as a corequisite of self-care over one’s professional lifespan” (p. 168). Earlier writers have indicated that personal psychotherapy might be viewed more favorably when one is in training, but that more experienced therapists might be more resistant or reluctant to consider personal treatment (Guy & Liaboe, 1986b; 206

Kaslow, 1986). This does not appear to be the case, however. Following a review of studies that examined the use of psychotherapy by therapists after they had completed their training, Norcross (2005) concluded that “across disciplines, therapists in practice routinely seek psychotherapy for themselves” (p. 842). Overall, it is estimated that three fourths of all therapists have experienced at least one episode of personal treatment (Norcross, 2005), but the rate of usage does vary with factors such as theoretical orientation. In the United States, 82% to 97% of psychodynamic therapists have had personal psychotherapy, while 44% to 66% of behavior therapists have done so (Norcross & Guy, 2005). Comparable figures were found in a large international study of therapists (more than 4,000 therapists in more than a dozen countries), where 92% of psychodynamic therapists, 92% of humanistic therapists, and 60% of cognitive–behavioral therapists reported having been in therapy (Orlinsky, Rønnestad, Willutki, Wiseman, & Botermans, 2005). There is a paucity of experimental research that addresses the effects of personal therapy on the therapist. Nevertheless, Norcross and Guy (2007) concluded that its importance can be validated by other means. When self-report measures are utilized, an overwhelming number of therapists (more than 90%) described their personal therapy experience as positive in a number of ways (Orlinsky, Norcross, Rønnestad, & Wiseman, 2005). Orlinsky and Rønnestad (2005) found that 88% of the respondents reported a positive benefit of their personal psychotherapy. Although it does appear that many psychologists have utilized and benefited from personal therapy, there is room for improvement in the encouragement and support for the use of this important self-care resource both in graduate training programs and in our professional culture at large. Regardless of the setting, emotional competence is an important construct to keep in mind when one is considering the ethical practice of psychology. Additionally, the maintenance and enhancement of one’s emotional competence should be the focus of attention beginning in graduate training and continuing as a priority throughout the entirety of one’s professional career. The primary goal of self-care

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should be to avoid professional competence problems, but another goal may be to use self-awareness and enhance the quality of services, so that the ACCA developmental model (APA, ACCA, 2005) can be expanded. It should not only describe a negative continuum from stress to distress to intervention, but also extend in the opposite and more positive direction from stress to coping to wellfunctioning to flourishing. Intervention/Sanction—Improper Behavior— Professional Competence Problem—Distress— Stress—Coping—Well-Functioning—Flourishing

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COMPETENCE WITH DIVERSE POPULATIONS Dianne S. Salter and Beatrice R. Salter

The focus of this chapter is on increasing the practitioner’s awareness of and attention to cultural and other variables that affect all aspects of psychological thought and functioning. The information presented is essential to the work of the clinician as well as those who teach, conduct research, provide supervision, and practice in other professional areas. Diversity is often defined as a wide range of factors, including gender, socioeconomic status, race, religion, ethnicity, age, and physical disability, that could set an individual apart from mainstream culture (APA, 2003). Space limitations prevent us from dealing with all of these important aspects of diversity, so this chapter focuses on racial, ethnic, and cultural diversity with some additional comments on diversity in sexual preference. Other chapters in this handbook include information on diversity issues as they relate to other topics, such as emotional competence (Chapter 7 of this volume), supervision (Volume 2, Chapter 13, this handbook), and research (Volume 2, Chapter 16, this handbook). The U.S. Census Bureau projects that between now and 2050, a major change will take place in the ethnic demographics of this country. The smallest growth segment of the population is projected to be non-Hispanic Whites, which will account for an estimated 46% of the population (America.gov, 2008). At the time of the 2000 census, non-Hispanic Whites constituted 77.1% of the population and represented the majority racial group in every state

except Hawaii (Minckler, 2008). Meanwhile, by 2050, the portion of the population of Hispanic, Black, Asian–Pacific Islanders, and Native American (American Indian, Eskimo, and Aleut) in origin is projected to increase from 15%, 13%, 4%, and less than 1% in 2000 to 30%, 16%, 10%, and 1% by 2050, respectively (America.gov, 2008; Suinn & Borrayo, 2008). Given the forecast for the ethnic makeup of the population of the United States, any professional who purports to provide psychological services to the people of this country will need to be prepared to serve an ever changing and increasingly diverse population. Psychologists will be better able to serve this diverse population if they can identify an ethical theory to guide their thinking and professional decision making. A plethora of ethical theories are available to help psychologists anchor their thought processes in a moral foundation, including principle-based ethics, deontological ethics, virtue ethics, utilitarianism, and feminist ethics (Knapp & VandeCreek, 2006). In this chapter, we utilize the concepts of feminist ethics theory as the ethical foundation for discussing multiculturalism. The beginnings of feminist ethical theory were tied to early feminism and thus to women’s rights and the rejection of male-dominated thinking. Delineation and rejection of male biases were an important step in its early history and evolution (Jaggar, 2009). Feminist ethics theory has evolved to represent a school of ethical thinking that is not divisive but all-embracing

We recognize, with gratitude, Dorothy Lamb, Richard Salter, and Melvin Rogers and thank them for all of their assistance. DOI: 10.1037/13271-008 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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and inclusive and addresses issues around the distribution of power and access. For those working with individuals and groups that traditionally have been marginalized, this anchors our ethical thinking in a theory that is more expansive. As advocates of feminist theory of both genders recognized the importance of inclusion and the elimination of bias in any form, their ethical formulations developed to include a relational conceptualization that incorporates group autonomy as an essential aspect of multiculturalism (MacDonald, 2010). Feminist ethicists embrace the ideal of eliminating oppression and achieving equal treatment for all groups (Tong, 2009). Ensuring that all racial, ethnic, cultural, and sexual minority groups have full access to competent services and treatment is inherent under the rubric of feminist ethics. ETHICS AND MORALITY Psychologists have tremendous power to influence people’s lives and significant life decisions. Therefore, it is imperative that the profession be guided by a code of ethics that sets standards for the decision making and the behavior of psychologists in professional settings. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) directs psychologists to competently assess racial, ethnic and cultural variables at all times. Many psychologists use the terms moral and ethical interchangeably, arguing that because they view and conduct themselves as moral individuals, it follows that their work with others will be ethical. We propose that there is a difference in the meaning of these terms and how they are operationalized. Moral judgments are made on the basis of a philosophy of life guided by personal or religious values. Ethics can be viewed as the means by which decisions are made that achieve moral outcomes (Peteet, 2004), distinguishing issues of right and wrong and expected behaviors in a given situation. Of critical importance to any discussion of morals and ethics is how the psychologist’s own moral beliefs influence her or his ability to view an individual or group that is different from oneself with respect, dignity, and an openness to address sensitive 218

issues that necessarily arise from differing worldviews and experiences. Even though psychologists intellectually comprehend that it is unethical to impose one’s own morals and values on others, they need to constantly be aware that individual and professional morals affect the interpretation of issues in the formulation of every case. Diagnosis, intervention, treatment planning, and distilling research questions and paradigms reflective of a group’s particular culture and values flow from the psychologist’s own perceptions and worldviews. APA has extended the charge to psychologists in every area of practice to assess personal and professional assumptions and communication skills and evaluate how these factors affect the performance of their duties. Fowers and Richardson (1996) asserted that “multiculturalism is, at its core, a moral movement that is intended to enhance the dignity, rights, and recognized worth of marginalized groups” (p. 609).

Interface of Psychology With Racial and Ethnic Differences Historically, the field of psychology was dominated by a male, classist, racist, and European cultural focus that shaped the early development of psychological theories and perceptions of individuals and groups who did not fit the prevailing monocultural perspective. In Even the Rat Was White: A Historical View of Psychology, Guthrie (1976) described psychology’s past association with the field of anthropology and the early eugenics movement, which sought to show that non-White, non-European persons and groups were inferior on the basis of their skin color, hair texture, and physiognomy. Anthropomorphic instruments were developed to measure physical differences between races, and these efforts were supported by such distinguished establishments as the Smithsonian Institute (Guthrie, 1976). The genetics movement paved the way for the use of tests of mental measurement, such as the BinetSimon in 1905 (Audiblox, 2010) in Europe, the American revision, the Stanford-Binet in 1916 (Audiblox, 2010; Becker, 2003), and subsequent tests of individual differences purporting to measure innate intelligence. These efforts contributed significantly to views about the “scientific” basis of early psychology.

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Guthrie (1976) stated that “the heavy emphasis placed upon the categorization of races and the subsequent psychological testing of various groups of people often led to conclusions of racial superiority and inferiority” (p. 26). Many of these tenets lingered in psychological and social thinking for many years (Ruston & Jensen, 2005), casting psychology as advancing a monocultural, universalistic perspective that has perpetuated inequalities in service delivery, research, and assessment, and that hindered the development of appropriate interventions for marginalized racial and ethnic minority populations. Over the years, researchers began to elucidate the psychological and social mechanisms related to racism. Sue and Sue (1999) in their seminal work, Counseling the Culturally Different: Theory and Practice, described the concept of ethnocentric monoculturalism, a five-level view of the forces within society that have perpetuated and strengthened the oppression of marginalized groups, including racial and cultural minorities; gay, lesbian, and transgendered individuals; members of religious minorities; persons with disabilities; older adults; and others. They stated that our educational system and counseling/ psychotherapy have often done great harm to our minority citizens. Rather than educate or heal, rather than offer enlightenment and freedom, and rather than allow equal access and opportunities, historical and current practices have restricted, stereotyped, damaged, and oppressed the culturally different in our society. (pp. 31–32) They defined the first level of ethnocentric monoculturalism as the belief that one group’s values, history, traditions, language, and physical traits are superior to those of any other groups. These norms are seen as most desirable and typically are described in positive terms, showing admiration and respect. The second level is identified by a belief in the inferiority of others. This assumption of inferiority applies to all aspects of other cultures, including but not limited to their values, history, traditions, languages, and physical characteristics. Descriptions of others’

values, beliefs, and physical characteristics typically are described in negative or derogatory terms, reflecting disdain and deprecation. Power is the lynchpin of the third level. The ability to impose standards is critical to the maintenance of institutions (such as educational, judicial, and governmental) that set and enforce standards of right and wrong, good and bad. Without power, there cannot be oppression and discrimination. The fourth aspect of ethnocentric monoculturalism is that the dominant culture’s views and value systems are manifested in institutions. This is accomplished through programming, practices, and policies that exclude those who do not fit the dominant model of acceptableness. Other authors have defined these processes as institutional racism (Jones, 1997), describing how these practices can foster discrimination and exclusion (e.g., the glass-ceiling concept). The final tenet of ethnocentric monoculturalism is the phenomenon described as the invisible veil. Because we all are products of our specific racial, ethnic, and cultural groups, we are conditioned to see the world in a particular manner that is supported by our communities (families, churches, social groups, etc.). Sue and Sue (1999) asserted that these processes operate outside of one’s conscious awareness and are invisible to the individual or the group. This assumption of universality in perception and experience can serve as a blinder to other perspectives of viewing the world and can lead to misunderstanding and misrepresentations when different cultural values are encountered. Although few would argue that race relations have improved over the past 30 years, disparities continue to exist between racial and ethnic groups in the distribution of resources and power (Dovidio & Gaertner, 1998; Dovidio, Gaertner, Kawakami, & Hodson, 2002; Pearson, Dovidio, & Gaertner, 2009; Sue & Sue, 1999), allowing for racist, sexist, homophobic, ageist, and discriminatory policies toward those who are different. Recent research has examined the evolution of racism and prejudice in present-day U.S. society. Dovidio et al. (2002), Dovidio and Gaertner (1998), and Pearson et al. (2009) described one current expression of prejudice as aversive racism. They described how racism has become more subtle and difficult to identify, 219

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as opposed to earlier blatant and openly hostile acts. Dovidio et al. (2002) saw this as an outgrowth of evolving societal expectations that Whites should be accepting and tolerant of others and that overt violence is now viewed by the majority of society as immoral in addition to carrying legal sanctions. Furthermore, many people who practice aversive or subtle racism may see themselves as egalitarian and fair-minded individuals. Although they consciously endorse opinions and values of equality and nondiscrimination, they unconsciously harbor negative opinions and beliefs about Blacks and other racial and ethnic minorities. Dovidio and Gaertner (1998) asserted that this bias is unintentional because it operates outside of conscious awareness, similar to Sue and Sue’s (1999) formulation of the invisible veil. The person who exhibits aversive racism often attests to being color-blind and consciously works to operate within the bounds of what is considered socially acceptable behavior. Studies by Dovidio et al. (2002) and Pearson et al. (2009) showed that these individuals typically show bias in ways and in areas in which a nonracial explanation can be used, such as questioning qualifications for a school or an employment position. Dovidio et al. (2002) stated that “in contrast to the feelings of open hostility and clear dislike of Blacks, the negative feelings that aversive racists experience are typically more diffuse, such as feelings of anxiety and uneasiness” (p. 90). This statement highlights how insidious and destructive this phenomenon can be and how powerfully it can affect the opportunities and well-being of those who are different from the dominant cultural group. Microaggressions are a form of metacommunication that conveys subtle and covert messages of prejudice and stereotyping. According to Sue et al. (2007), “microaggressions are the brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color” (p. 271). Sue (2010) expanded the scope of microaggressions beyond race to include the areas of gender, religion, sexual orientation, and disability, recognizing that any marginalized groups and its members can encounter frequent insults and slights in their interactions with dominant 220

group members. These insults are often automatic reactions that are unrecognized by the perpetrator as demeaning. Sue and his colleagues (Sue et al., 2007; Sue, Capodilupo, & Holder, 2008) identified three specific forms of microaggressions. Microassaults are most similar to overt acts of discrimination when perpetrators are aware of their demeaning behavior and the negative consequences. Microinsults often stem from unconsciously held biases and beliefs that shape comments and actions from well-meaning individuals. Microinvalidations are expressed stereotypes that devalue and invalidate the life experiences of entire groups of people. Notably, almost all interactions between diverse persons and groups are subject to instances of microaggressions. Sue et al. (2007) identified “9 categories of microaggressions with distinct themes: alien in one’s own land, ascription of intelligence, color blindness, criminality/assumption of criminal status, denial of individual racism, myth of meritocracy, pathologizing cultural values/communication styles, second-class status, and environmental invalidation” (p. 275). Multiple examples of these themes, how they typically are expressed, and the inherent messages in these communications are described in detail. Readers are encouraged to review these examples to heighten their awareness and efforts to improve the effectiveness of their interpersonal interactions and functioning as multiculturally competent practitioners. Utilizing the construct of dehumanization, Goff, Eberhardt, Williams, and Jackson (2008) studied if and how historical associations of Blacks with apes in scholarly and popular media continue to stimulate perceptions and judgments in significant ways in present day society. Their research set out to further explain the concepts of stereotyping and discrimination and examine how differentness, especially Blackness, contributed to the manifestation of unpremeditated and unintentional racism and its expression in contemporary society. They conducted a series of six studies that examined historical representations and associations of Blacks with inhuman images. Their results concluded that even when study participants were not familiar with historical representations of the Black person–ape

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connection, trait attributions that influence interpersonal interactions were evident at a significant level. They continued this exploration to examine how these perceptions and inferences might affect the expression of emotions and behaviors in in-group and out-group contexts:

stereotyped characteristics, as well as support for segregation and support for acts of open discrimination. Thus, those endorsing the ideology of modern racism do not define their own beliefs and attitudes as racist. (McConahay, 1986, p. 9)

Dehumanization is viewed as a central component to intergroup violence because it is frequently the most important precursor to moral exclusion, the process by which stigmatized groups are placed outside the boundary in which moral values, rules, and considerations of fairness apply. (Opotow, 1990, cited in Goff et al., 2008, p. 293)

Dunton and Fazio (1997) studied the impact selfpresentation effects, using the Motivation to Control Prejudiced Reactions Scale in conjunction with the Modern Racism Scale. Their research showed a connection between test items that addressed personal values about prejudice and test items that examined being viewed as prejudiced by others. Building on McConahay’s work, Blair (1999) also sought to create an instrument to measure and describe the changing form of racism in the United States. He labeled his formulation ambivalent racism and developed the Ambivalent Racism Scale. Blair articulated two domains, benevolent racism and hostile racism, to measure attitudes held by Whites about Blacks. His work showed that people can hold contradictory attitudes and opinions about groups at the same time, resulting in feelings of ambivalence. The question remains whether the Modern Racism Scale and the Ambivalent Racism Scale, both self-report measures, developed in a laboratory and normed on college populations, are generalizable to a broader population and the additional cues present in everyday interpersonal interactions across multiple settings. The majority of citizens are aware of socially acceptable attitudes and behaviors. The issue remains that one’s beliefs, perceptions, and cognitive styles significantly affect interpretations and reactions to those who are different at the micro and macro levels. It is equally important to recognize that many of these phenomena operate outside of the level of conscious awareness. It is imperative that every clinician, educator, and researcher consciously work to comprehend the enormity of the impact that their often unconscious, well-intentioned words and behavior can have on others. Kunda and Sinclair’s (1999) extensive research on motivated reasoning has pointed out that when and where individuals choose to utilize stereotypes is predicated on their motives in any given situation: “Most current models of motivated reasoning share

McConahay (1986) designed the Modern Racism Scale to examine some of the cognitive and affective elements of attitudes held about race. Recognizing that racism in the United States had assumed new forms, McConahay’s research divided racism into two separate categories called modern racism and old fashioned racism, seeking to understand societal phenomena such as voting patterns, community issues, and jury–trial behavior. The principal tenets of modern racism are these: (a) Discrimination is a thing of the past because blacks now have the freedom to compete in the marketplace and to enjoy those things they can afford. (b) Blacks are pushing too hard, too fast and into places where they are not wanted. (c) These tactics and demands are unfair. (d) Therefore, recent gains are undeserved and the prestige granting institutions of society are giving blacks more attention and the concomitant status than they deserve. Two other tenets are added to this psychological syllogism: Racism is bad and the other beliefs do not constitute racism because these beliefs are empirical facts. Racism, as defined by modern racists, is consistent with the tenets and practices of old-fashioned racism: beliefs about black intelligence, ambition, honesty and other

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the assumption that motivation affects judgment by influencing cognitive processing” (p. 13). Even though most people seek to explain their reasoning and conclusions in rational ways (both to themselves and to others), it is likely that the very process of sorting information to arrive at a decision has involved multiple levels of filtering and sorting information, allowing for many distortions on multiple levels. Individuals look for information and make judgments that support their desired outcome, often including the need for self-worth and a sense of superiority. Kunda and Sinclair (1999) pointed out that motivated reasoning is a two-stage process in which stereotypes can be activated by an encounter and then applied to an individual or group or can be activated but not applied (inhibited) because of personal motives and situational cues. Personal and group ambivalence about race relations become more exaggerated when one feels stressed and thus allows for the further escalation of prejudice, bias, and stereotyping, impeding every form of interaction with those who are different from ourselves.

Psychology’s Early Experiences With Diversity It is to be expected that psychology training programs in the United States reflect the social climate of the country and the era. The National Council of Schools of Professional Psychology (NCSPP) was established in 1976 to address contemporary issues of educating and training graduate students in the growing area of professional psychology, an alternative to the traditional Boulder model of training the scientist-practitioner (Dobbins, 2008; Stricker, 2008). The member schools of the NCSPP worked to develop a core curriculum and identified six required competency areas, moving toward standardization and overall improvements in graduate training. The identified competency areas were relationship, assessment, intervention, research and evaluation, consultation and education, and management and supervision (Hutchings, 2008). These developments represented a tremendous leap forward for professional psychology training. In 1987, noting the scarcity of ethnically diverse individuals and groups in every area and level of professional psychology training programs, 222

NCSPP sought to assertively address this issue. Then–NCSPP president George Stricker stated, The process of moving from ethnocentrism to multiculturalism is not easy. It requires a change in mind-set that must precede a change in action. Embracing only the similar and the familiar must give way to perceiving, appreciating, and honoring differences. And, once having developed this new perception, it must be made integral to psychology education and training and to service delivery. (Stricker, 1990, p. ix) The NCSPP further recognized that any efforts to achieve ethnic diversification in its schools’ programs involved every level of the institution, including recruiting and retaining students and faculty, and developing curricula and new service models for underserved groups. Diversity was added as a seventh core competency in 2002. At that time, ethics and advocacy were “identified as core values that cut across and apply to all of the core competencies” (Hutchings, 2008, p. 1). With the growth of the civil rights movement, the women’s movement, and legislation supporting affirmative action policies, the field of psychology slowly began to examine how explanations and assumptions about differences between people from varying racial, cultural, and ethnic groups have damaged, rather than helped, culturally different groups (Sue & Sue, 1999). Consistent with the social and legal changes occurring in society, the APA recognized the demands that changing demographics were placing on the professional psychologist, mental health systems, and the provision of quality services to marginalized groups. Multiple commissions, conferences, and offices have been established to address racial, social, cultural, and ethnic issues in the United States. While these efforts are well intentioned, they have not, unfortunately, brought enduring changes to the field. In more recent efforts to address these issues, the Commission on Ethnic Minority Recruitment, Retention, and Training was established by the APA Council of Representatives in 1994. This initiative addressed issues impeding the involvement of ethnic

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minority groups along the education pipeline, recognizing the importance of establishing a base for more diverse individuals to provide services in every area of the profession (Holliday & Suinn, 1997). APA president Ronald Levant recognized the importance of more aggressively addressing diversity issues within the organization and convened the Task Force on Enhancing Diversity in 2005. The final report addressed underlying attitudes of members that impede openness to and acceptance of racial, cultural, ethnic, and language differences in interpersonal interactions. It highlighted how these biases significantly affect communication and problem solving within the governance, and charged the organization and its membership to help make APA a more “welcoming” entity, acknowledging the worldviews and experiences of all diverse groups. These findings are consistent with those of Dovidio et al. (2002), who stated, We contend that, among other forces, the nature of contemporary biases can shape the everyday perceptions of White and Black Americans in ways that interfere with a foundation of communication and trust that is critical to developing long-term positive intergroup relations. Although we recognize that a variety of historical and social forces are involved, we suggest that the different perspectives and experiences of Whites and Blacks in interracial interaction, which can occur daily and have summative effects over time (Feagin & Sikes, 1994), help to contribute to the climate of miscommunication, misperception, and distrust that characterizes contemporary race relations in the United States. (p. 89) Eagly and Chin (2010) have continued the discussion on diversity and leadership. Noting that all racial, ethnic, and sexual minority groups remain underrepresented in positions of leadership, they explored how people view the role of leaders and thus who they believe should and could fulfill those roles. Most leadership roles still are defined by monocultural and masculine attributes. Thus, the traditional attributes of Whiteness and maleness continue

to be the leadership characteristics that are most valued. This is consistent with the unconscious nature of the invisible veil (Sue & Sue, 1999), aversive racism (Dovidio & Gaertner, 1998), modern racism (McConahay, 1986), and ambivalent racism (Blair, 1999) wherein the expressed intention is wellmeaning and socially appropriate but underlying, unrecognized attitudes and beliefs influence everyday perceptions and judgments (Kunda & Sinclair, 1999). These factors, operating outside of conscious awareness, nevertheless manifest in interpersonal interactions as prejudice and discrimination. MULTICULTURALISM The profound impetus that exists to address issues of multiculturalism and diversity within the psychological profession and U.S. society speaks to the disconnect that has existed between the ideals that have evolved for the profession and how psychology actually has addressed the growing issues of diverse populations (Fowers & Richardson, 1996; Kendler, 2008). Psychology has grown to view those in the profession as proponents of the rights, dignity, and worth of marginalized individuals and groups. The field has begun to recognize the social and psychological demands on individuals from marginalized groups who are required to function within their own cultural and ethnic spheres as well as within the broader cultural context of the dominant cultural–ethnic group (Suinn et al., 2005). Sue, Ivey, and Pedersen (1996) postulated that all individuals are products of their own cultural and ethnic conditioning, making it easy to assume that one’s own values and beliefs are in some way representative of how others do or should view the world. This lack of awareness of other’s worldviews, preferences, and values allows for Sue and Sue’s (1999) invisible veil phenomenon. Consistent with this conceptualization is Alarcon’s assessment that “behavior is inherently embedded in culture, and so too are the means for perceiving and interpreting it” (Sue et al., 1996, p. 15). A growing area in the multiculturalism arena is multiracial individuals and families (Brown, 2009). Interesting identification issues may be presented by their diverse family and life contexts. According to 223

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Brown, “because of interactions with family members and friends who represent diverse backgrounds, multiracial people often feel empowered to incorporate and accept all aspects of their racial and cultural background” (2009, p. 126).

Teaching Multiculturalism Not every psychologist, professional, or educator supports the value and importance of multicultural education. Addressing the pertinent issues involved in enhancing one’s skill level with diverse groups involves ongoing personal commitment and scrutiny as well as organizational support. When we bear in mind that many of the dynamics underpinning modern racism, ambivalent racism, and microaggressions operate at an unconscious level, it may be that some professionals are in agreement with the concept of multiculturalism more than the process and work of achieving true diversity. Larke and Larke (2009) described the experiences of six professors of diverse racial, gender, and ethnic backgrounds and their experiences in teaching multicultural education courses. They noted how student resistance to examining tenets of racism and prejudice seemed to be significantly affected by the instructor’s race, gender, and ethnicity. In addition to being intellectually discounted and challenged, their performance evaluations also were negatively affected by these factors, regardless of years of experience. Wong and Fernández (2008) shared their experiences teaching multicultural education to preservice teachers. They reported encountering resistance and hostility from some of the teachers, other professors, and major stakeholders in the community in implementing strategies to improve teachers’ cultural competence, even though they were hired for this purpose. They outlined a framework for self-care for teachers of multicultural education to address ongoing issues of professional devaluation, disillusionment, and personal burnout in similar situations. The Center for Multicultural Training in Psychology at Boston University School of Medicine and the Boston Medical Center have worked for more than 30 years to train professional psychology interns in multiple aspects of diversity and cultural competence. Their commitment to the development of personal thinking, ethics, and social justice has demonstrated the possibilities for positive change 224

for the individual practitioner, institutions, and communities in the area of multiculturalism. One tenet of teaching multiculturalism and diversity is helping students develop a willingness to explore White privilege in U.S. society as a component of prejudice and stereotyping. As Sternlieb (2005) has noted, it is easy for Whites to acknowledge the barriers and challenges with which people of differing racial and ethnic groups have had to contend and the negative consequences of these events. However, the flipside of this idea, that if others have had obstacles, then the dominant group has had privilege, seems more difficult for Whites to synthesize emotionally. It may be that issues of guilt, shame, and the need to self-present as egalitarian and fair-minded affect how individuals from majority groups are able to examine and process these complex issues (Sternlieb, 2005; Sue, 2010). COMPETENCE WITH DIVERSE POPULATIONS Standard 2 of the APA Ethics Code (2010) addresses the broad area of competence. Sections 2.01, 2.03, and 2.05 cover Boundaries of Competence, Maintaining Competence, and the Delegation of Work to Others, respectively (APA, 2010). These sections require psychologists to at all times seek the training, supervision, experiences, and consultations necessary to establish and maintain competence with any population with whom they plan to initiate psychotherapy, teach about, perform assessments, or design and conduct research. When delegating work to others, this section of the code mandates psychologists to be aware of the level of competence of those to whom they may assign duties, including trainees and other professionals, such as interpreters (APA, 2010). (More information on competency in general can be found in Chapter 6 of this volume.) Lack of competence can have devastating consequences for multicultural clients. For example, an assessment conducted by a psychologist who lacks competence in working with linguistically different or culturally different clients can produce reports that result in misdiagnosis, inappropriate treatment planning, and inappropriate use of medications. The presence of culture-bound syndromes is just one

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example of the impact of culture on diagnosis and treatment planning.

Culture-Bound Syndromes Mental health professionals have come to agree that taking into account cultural considerations is essential to diagnosing and treating symptoms of emotional disorders (Campinha-Bacote, 1997). Providing culturally sensitive treatment includes acquiring a working knowledge of symptom presentations that may be endemic to certain cultural groups but are not recognized as a mental disorder in their native environment or within broader society. In the literature, a syndrome has been differentiated from a disease in that a syndrome is a “perception, evaluation, explanation and labeling of symptoms” (Campinha-Bacote, 1988, p. 246), while a disease describes biological and psychological dysfunction (Herrick & Brown, 1999). In the 1960s, Yap introduced the concept of culturebound reactive syndromes, describing psychosocial phenomena that are known in particular cultures and subject to special treatment by indigenous healers (Jilek, 2001). Culture-bound syndromes have been defined in the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision; DSM–IV–TR; American Psychiatric Association, 2000) as recurrent, locality-specific patterns of aberrant behavior and troubling experience that may or may not be linked to a particular DSM-IV-TR diagnostic category. Many of these patterns are indigenously considered to be “illnesses,” or at least afflictions, and most have local names. (American Psychiatric Association, 2000) Culture-bound syndromes usually are viewed as aberrant from a Western viewpoint. Although the cultures involved recognize these syndromes as troubling, they are not viewed as having the same level of dysfunction as is assigned by the Western mental health community. Guarnaccia and Rogler (1999) suggested that an important reason for focusing on culturebound syndromes is the increase in ethnic and cultural diversity in the population of the United States. Therefore, there will be an increasing number of diverse persons seeking mental health care [who] bring with them their own indigenous pat-

terns and conceptions of mental illness, some of which are structured into cultural syndromes. Clinicians who serve an increasingly culturally diverse population need to know more about such syndromes. (Guarnaccia & Rogler, 1999, p. 1322) Hall (2008) stated that the experience of illness is subjective “and varies from person to person and from group to group” (p. 1). He explained, “These are illnesses or illness categories with a strong psychosocial component which are typically found in only one or a few cultural groups. In the current American nosology, they are classified as psychiatric syndromes” (Hall, 2008, p. 1). Western Hemisphere mental health professionals usually do not recognize or acknowledge the cultural aspects of the syndromes (Simons, 2001). In many non-Western cultures, both physicians and patients tend to be more comfortable discussing emotional stressors and mental illness in somatic rather than psychiatric terms. This generally results from a combination of the respect these societies hold for physicians and other medical providers and the stigma associated with mental illness (Arthur et al., 2010; Sorsdahl, Stein, & Flisher, 2010). Furthermore, in many cultures, it is not acceptable to discuss negative feelings so these emotions frequently are expressed as somatic experiences (Kuo & Kavanagh, 1994). Depressed patients may present with significant physical symptoms but never express feelings of sadness or dysphoria. A lack of understanding of the cultural implications of symptom presentation could result in the patient being untreated or treated for the wrong issues and problems (Herrick & Brown, 1999). Asians often do not seek help from mental health professionals when experiencing symptoms that Western professionals would label as having a mental health basis. Rather than seeking mental health treatment, Asians often turn to family members or spiritual leaders, and use traditional remedies such as meditation. By the time they seek Western-oriented mental health treatments, their condition is often more severe and entrenched than it would have been from the perspective of the Western mental health professional. Also, Asian patients tend to respond less well to Western 225

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mental health treatment techniques because of (a) misdiagnosis; (b) differences in presenting symptoms than with other cultural groups; (c) mental health providers’ lack of knowledge about Asian cultures; and (d) the lack of self-awareness of many professionals “about their own cultural sensitivity, and language barriers leading to misunderstandings between profession and patient” (Herrick & Brown, 1999, p. 276). A condition known as koro is experienced by men all around the world. These symptoms, however, occur more frequently among the Asian population. The symptoms include a fear that the penis is shrinking and being absorbed by the body. Ultimately, the individual believes he will die from the condition (AlHmoud, 1999; Hall, 2008). Western mental health professionals classify koro as a culture-specific delusional disorder that may be rooted in the Freudian concept of castration anxiety (Chowdhury, 1996). In Eastern cultures, however, koro is successfully treated as a medical condition. It is doubtful that a positive resolution could be achieved if this disorder were labeled as a mental health issue following Western philosophy. A second condition that involves primarily Asian men is hsieh-ping where the individual enters a trancelike state in which he believes that he is possessed by dead relatives (Campinha-Bacote, 1988). Symptoms include disorientation, tremors, and visual or auditory hallucinations. Two syndromes that tend to affect women of Asian descent are Latah and Ainu. Latah is common among Southeast Asian women and is characterized by imitative behavior, automatic responses to commands, and utterances of obscenities. This syndrome is most often experienced by postmenopausal women. Ainu is a comparable syndrome usually found in Japanese women. Herrick and Brown (1999) speculated that these behaviors allow Asian women to express aggression, which usually is not acceptable in their cultures. Hwa-Byung is another culture-bound syndrome that Western mental health professionals have connected with anger (Somers, 1998). Hwa-Byung is translated as “fire-syndrome” and most often is manifested in middle-age women (Herrick & Brown, 1999, p. 280). It is treated in Korean society as a somatic syndrome, with symptoms including 226

sleeplessness, dizziness, headaches, indigestion, sexual dysfunction, intolerance to heat, dry mouth, hot and cold flashes, heart palpitations, and blurred vision. Many sufferers also report the presence of an epigastric mass, which cannot be confirmed on examination. Western medical and mental health professionals attribute the symptoms to repressed anger because of the cultural taboo for women to express anger or other negative feelings. The suppressed anger supposedly is experienced as a heavy mass located in the abdomen. Western diagnoses of this syndrome typically include major depression, anxiety, and somatization disorders (Lin, 1983). Eastern professionals, however, would treat these symptoms in the patients’ cultural context and focus on the somatic complaints and on the balanceoriented theories that have been prominent in Asian culture for centuries (Kuo & Kavanagh, 1994). Ultimately, as pointed out by Lin et al. (1992), eliciting and giving credence to the patients’ “explanatory models” (p. 390) is crucial to successfully resolving the clinical issues. Ataques de Nervios (AdN) is a cultural condition widely experienced by adults and children of Puerto Rican heritage (Guarnaccia, Martinez, Ramirez, & Canino, 2005). To a lesser extent, this cultural syndrome also occurs among other groups with Latin backgrounds. Symptoms include uncontrollable shouting, attacks of crying, trembling, heat in the chest that rises into the head, and verbal and physical aggression. In addition, some people have described dissociative episodes, seizurelike or fainting spells, and a sense of being out of control. Guarnaccia et al. (2005) conducted a study of AdN in children to determine the correlation with mental health issues in their parents. They questioned whether AdN would continue to occur among Puerto Rican children who have been acculturated to American values. Interestingly, AdN has continued to be an acceptable means of expressing emotional distress in Puerto Rico and the United States (Guarnaccia et al., 2005). Furthermore, this method is found more frequently in girls than in boys, although boys continue to have rates that are significant. One clinical implication of this study is the strong correlation between AdN and the eventual development of a psychiatric disorder.

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Bilis was defined by Jonas (2005) as a sickness accompanied by constipation and a bitter taste in the mouth, found primarily among Mexicans and Mexican Americans. The syndrome has been attributed to feelings of anger or fear and is believed to be caused by an imbalance in the humors or body system. The concept of humors, which has lost favor in U.S. medicine, is still practiced in more traditional medical communities. Mal puesto is believed to be the result of a hex that is placed on the person by someone familiar with witchcraft. Subsequent to the hex being placed, the person engages in bizarre and abnormal behavior (Jonas, 2005). Symptoms include gastrointestinal complaints as well as other somatic problems. Anxiety and paranoia also may be experienced (Harris, 1998). The traditional treatment for this disorder is sought from spiritual healers. Western anthropologists, medical, and mental health professionals have long focused on nonWestern cultures in exploring issues connected with culture-bound syndromes. Starting in the mid-1980s, however, professionals have been examining two prominent culture-bound syndromes in the United States: anorexia nervosa (AN) and bulimia nervosa (BN; Swartz, 1985). Sociocultural factors found in Western cultures have been identified as precipitants of AN and BN (Miller & Pumariega, 2008). Casting AN and BN as culture-bound problems allows us to understand their origins and characteristics as culturally determined phenomena rather than as a disease process. Ritenbaugh (1982) posited that, to different degrees, casting disorders as having cultureboundedness “could synthesize the best from the ‘old transcultural psychiatry’ and the ‘new crosscultural psychiatry’” (p. 352). This recasting allows for consideration of the differing cultural impact of sociological changes. For example, AN is viewed differently in present society than it was in the 1900s, and care is taken to distinguish AN from dieting (Swartz, 1985). Lee (1996) found that AN is no longer a syndrome solely expressed by Western cultures (primarily North America, Western Europe, Australia, and South Africa). Studies have shown an increase in AN among countries in the Middle East, the Far East, Africa, and India. It is likely that this has less to do with a greater acceptance of AN than a

spread of Western cultural ideals that have gained acceptance among the youth in other cultures.

Diverse Populations When working with marginalized groups, the issues of historical information and clinical issues must be considered. We contemplate the basic issues relating to diverse groups and consider why these specialty areas require additional training, knowledge, and experience for the psychologist to be competent in treating people included in these groups. Each of these groups present unique characteristics and all have at least one mutual element: Although each group shares common characteristics, every group is also heterogeneous. Contextual variables must be considered in any assessment and formulation of the individual or family presenting for services. These diverse cultural groups can differ in a myriad of ways. Within-group heterogeneity can include skin color, country of origin, education level, and socioeconomic status. Also, there are a number of ways in which a person can have multiple cultural identities. In Cuba, as in much of Latin America, skin color is the basis of a quasi-caste system. Cubans whose skin color is white hold the most prestigious professional and political positions. Few White Cubans are found among the laborers in Cuba. Conversely, few Black Cubans were among the refugees who fled to Florida when the Castro regime seized political control of Cuba. Many see Asian Americans as a disadvantaged cultural group. Conversely, Asians also have been acknowledged as the model minority. In the past, many Asians coming to the United States had little formal education or prospect for professional positions. However, Asians now are viewed as having privilege, being above average in their ability to master mathematics and the sciences. Members of any cultural minority can have multiple identities that expose them to several areas of historical discrimination. For example, one might be a member of an ethnic minority group and gay, or one might be a member of a historically disadvantaged cultural group but have a career that places him or her in an advantaged group on the basis of socioeconomic status. 227

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African Americans (Blacks). The history of Blacks1 in the United States differs vastly from that of any other racial or ethnic group. The forcible emigration to this country of Africans for the purpose of slavery has left an indelible mark of inferiority that is still felt in the 21st century. The lingering socioeconomic impact of slavery and racial discrimination continues to negatively affect the functioning of many Blacks who have not been able to fully participate in opportunities that other ethnic groups take for granted as U.S. citizens. Whites and Blacks in the United States have developed widely diverging views on the conditions of racial disparities and perceptions of their causes. Whites greatly underestimate the existence of racial disparities. For instance, despite the compelling evidence of contemporary racial disparities (SanchezHucles, 2001), between 40% and 60% of Whites responding to a recent survey, depending on the question asked, viewed the average Black in the United States as faring about as well as, and often better than, the average White (Marger, 2009). Differing life experiences and worldviews have led to a sense of mistrust and suspicion on the part of Blacks seeking psychological services when the provider is White. Bender (2005) called this “a healthy cultural suspicion” of treatment (p. 29). Black clients have reported not feeling comfortable enough to be transparent with White therapists and thus not being able to obtain the maximum benefit from therapy. Furthermore, research shows that Black clients generally prefer Black therapists (Sanders Thompson, Brazile, & Akbar, 2004; Wintersteen, Mensinger, & Diamond, 2005). Blacks also prematurely terminate treatment at a greater rate than other marginalized groups (Carter, 1979; SanchezHucles, 2001; Sue & Sue, 1999). Access to services is another impediment to Blacks participating in counseling and psychotherapy (Inniss, Nesman, Mowery, Callejas, & Hernandez, 2009). Blacks often live in areas that do not have facilities that offer mental health treatment. Additionally, the places 1

where these services are provided may not be easily accessible by public transportation. Of paramount concern to the profession of psychology is the scarcity of Black psychologists to participate in the provision of culturally appropriate services. Colleges and universities, influenced by the prejudices and discrimination of the greater society, did not begin admitting and training Black psychologists in any significant numbers until the 1970s (Guthrie, 1976). Wispe et al. (1969, cited in Holliday, 2009) pointed out that “as recently as the late 1960s, major universities such as UCLA, Cornell, Harvard, Illinois, Yale, Stanford, and Iowa had not granted a single doctorate in psychology to an African American” (p. 317). Consequently, as recently as 2007, only 1.8% of all doctoral-level psychologists were Black (Townes, 2010). This means that many Black clients who might benefit from working with a Black psychologist will be denied that opportunity. As a result, most Blacks seeking psychological treatment will receive these services from European American psychologists. Many psychology graduate programs still do not offer the education or training experiences that are sufficient to train psychologists to competently address issues and challenges faced by Black clients. Some schools and training programs that do seek to incorporate information about working with Black clients inadvertently stigmatize or stereotype them. by casting certain behaviors, actions, and points of view as something that can be expected from Black people, non-Black therapists may be led to believe that all Black people will behave alike and have the same point of view. Black people, like other groups, are not homogeneous. There are numerous ideological, cultural, linguistic, and socioeconomic differences among Black people. As a whole, Black people, like any other diverse group of people, must be viewed from an ecological stance, taking into account individual and environmental elements. Clinical issues. Black clients have tended to utilize therapeutic services less than White clients.

We use the term Black for several reasons. When speaking of racial issues in the United States, color is an integral factor. African Americans whose skin color is not black will not have had the same experiences as African Americans of darker skin hues. There are Africans who have immigrated to the United States from northern African countries whose skin is white, and many of these people identify as African Americans. Also, there are a number of people in the United States who originated from Caribbean countries who have darker skin but do not want to be referred to as African Americans.

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There are many theoretical explanations for this trend, not the least of which is a lack of comfort and trust in working with White therapists. Research has shown that Blacks are more likely to initiate and continue with therapy if they have a Black therapist (Kortmann, 2010). Blacks tend to see the utilization of the mental health system in a more negative light than other ethnic groups (Silva de Crane & Spielberger, 1981). The remnants of racism, discrimination, and prejudice continue to affect the relationship between White therapists and Black clients (Bender, 2005; Sanchez-Hucles, 2001). For numerous historical reasons, including the long history of prejudice, the impact of discrimination, and overt acts of subterfuge (e.g., the Tuskegee experiment), Blacks tend to have a mistrust of many scientific trials or clinical interactions (Knowledge Network Explorer, 2009). Historically, Blacks have sought solace and guidance from sources other than mental health professionals. It is more common to approach family or community elders and religious leaders for advice. This course of action often is viewed with disdain by the mental health community, and there has been a tendency to see this as pathological. An openness to and appreciation of the importance of religious and spiritual contexts will facilitate Black clients in acknowledging the psychologist as someone who is able to understand their life experiences and culture (Bender, 2005). Blacks often suspect that White therapists will be biased and subject to stereotyping, viewing them through a European-oriented lens rather than with consideration of the realities that represent their daily experiences. Even when the Black client is working with a Black psychologist, the client may suspect that she or he will not be understood because of the differences in education and socioeconomic class (Sanchez-Hucles, 2001). Black clients tend to expect and welcome more social distance than many White clients. For example, addressing adult clients by their surname is a welcome show of respect. At the point that clients feel comfortable and trustful of the therapist, they will let the psychologist know that it is acceptable to address them in a different manner (Carter, 1979; Sanchez-Hucles, 2001).

Therapists, Black or White, must be cognizant of their internal affect regarding Black clients. Black clients tend to be sensitive to the body language of the therapist and will be looking to detect signs of discomfort and rejection of which the psychologist may not be consciously aware (Carter, 1979; Sanchez-Hucles, 2001). Asian Americans. By some estimations, at least 20 different nationality groups come under the heading of Asian American, including Chinese, Japanese, Filipinos, Vietnamese, Koreans, Loatians, Cambodians, Asian Indians, Hmong, Thai, Hawaiian, Samoan, and Guamanian (Meyers, 2006; Schoen, 2005). Asian Americans are the second-fastest growing ethnic group in the United States (Schoen, 2005). This diverse group represents multiple ethnicities, cultures, nationalities, languages, and cultures. The Asian American experience in the United States differs significantly, depending on the period in history and the region of the country in which they have resided. In California, the experience of the Chinese and Japanese differs widely depending on whether the analysis is for the period of 1848 through the end of the gold rush or 1941 through 1944. An Asian American who lived through the World War II period or who is a descendant of an Asian American who lived through this period, when Japanese were interned, may have a sense of the United States as oppressive and unforgiving versus a land of freedom (Leong & Okazaki, 2009). Psychologists preparing to work with Asian Americans need to be cognizant of the details of the person and the family’s experience with immigration to this country. Knowledge about the processes of acculturation and enculturation and other ecological variables will be essential to understanding the individual’s or family’s experiences (Tang, 2002). Appearance, values, behaviors, identities, and attitude will vary depending on the person’s generation, immigration circumstances, and socioeconomic status. As with other ethnic groups, Asian Americans tend to be family oriented and the natural course of action to handle problems is to seek the advice of an elder, extended family member, or religious leader. It is a foreign concept that someone would pay a stranger to help solve problems rather than go to a family member (Gock, 2006). 229

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Clinical issues. The National Latino and Asian American Study (NLAAS), funded by the National Institute of Mental Health and conducted from 2002 to 2003, was the first major study to gather data regarding the occurrence of mental illness among Asian Americans (Winerman, 2006). Also investigated was the incidence of use of the mental health system by Asian Americans (Zhang & Dixon, 2001). One finding of the study was that second-generation Asian Americans had an increased rate of mental illness. However, the incidence of mental illness did not necessarily correspond to an increased use of mental health resources. The one exception to this trend is the Vietnamese, who had a higher rate of use of mental health services than other Asian American groups (Pyke & Johnson, 2003). One reason sometimes given for this trend is the publicly traumatic circumstances under which many Vietnamese came to the United States. It is probable that social service groups facilitated the use of the U.S. mental health system to manage the traumas experienced during the Vietnam War, while fleeing their homeland, and during relocation. An important risk factor for Asian Americans is perceived social status. For this group, perceived status based on income level, professional status, and familial respect is more important than actual social status. This often is seen as a derivative of the situations that occur when individuals and families immigrate to the United States. Before coming to this country, many Asian Americans were high-level professionals in their native countries. However, because of differences in training requirements, language proficiency, and professional licensing laws, these same individuals are sometimes forced to work in menial jobs in the United States. This is seen as demeaning and many of these individuals become resentful and depressed about the loss of status (Leong & Okazaki, 2009). About 4.6% of new psychology doctorates self-identified as Asian American, and thus Asian American clients have a greater likelihood of receiving services from an Asian American psychologist (Dingfelder, 2006). Hispanics. As is the case with many ethnic and cultural groups, Hispanics are diverse linguistically, by country of origin, and history of oppres230

sion. Hispanics are the fastest-growing ethnic group and by 2050 are predicted to be the largest ethnic group, at 30% of the population, in the United States (Bernstein & Edwards, 2008). There continues to be controversy regarding what to call this population: Latino/a or Hispanic (Comas-Díaz, 2001; Yankauer, 1987). Over the past half decade, other labels have been applied for varying lengths of time. Vázquez (2004) stated “one of the most popular debates and one of the least likely to be solved - ¿Hispanic or Latino?” (p. 1). For the sake of consistency, we will use the term Hispanic, with apologies to anyone who might take exception to this choice of term. Among the 47 million Americans of Hispanic descent, 64% are of Mexican background, 9% are of Puerto Rican heritage, 3.5% are from Cuba, 3.1% are Salvadoran, and 2.7% are Dominican. The remaining 17.7% hailed from other Central and South American countries or were of other Hispanic or Latino/a backgrounds (U.S. Census Bureau, 2009). Clinical issues. Some cultural styles are helpful for psychologists to know. As with older Black clients, it is better to be more formal in initial interactions with Hispanic clients. Adults should be addressed by their formal names unless they invite you to address them differently. As the relationship develops, the client likely will become more comfortable. In fact, it is likely that the client will display behaviors that appear to stretch the therapeutic boundaries. However, these behaviors merely represent a desire to show trust and develop the relationship (Castellanos, n.d.; Paniagua, 1998; Sue & Sue, 1999). Whenever possible, forms and other written materials should be translated into Spanish by a professional translator to ensure the accuracy of the documents. Hispanic clients often will refer other family members to you and will be offended if you do not accept them on the basis of harm from “multiple relationships.” The referral of a loved one signifies the client’s trust and respect for the therapist (Santiago-Rivera, Arredondo, & Gallardo-Cooper, 2002). Access to health care. Hispanics’ ability to utilize medical and mental health care is significantly compromised by language barriers. Studies have found that the use of primary care and preventive

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care are directly correlated with language abilities (Pippins, Alegria, & Haas, 2007). In 2002, the Robert Wood Johnson Foundation funded a $10 million, multiyear, multiprogram project with the goal of developing sustainable language access services in medical settings (Wu, Ridgely, Escarce, & Morales, 2007). The programs chosen were located in areas that were experiencing a rapid influx of Hispanics with low English proficiency (details about the project can be accessed at http://www. hablamosjuntos.org). Linguistic competence. Linguistic competence has been defined by the Agency for Healthcare Research and Quality (AHRQ), an agency of the U.S. Department of Health and Human Services (U.S. Dept. of HHS), as “providing readily available, culturally appropriate oral and written language services to limited English proficiency (LEP) members through such means as bilingual/bicultural staff, trained medical interpreters, and qualified translators” (U.S. Dept. of HHS, AHRQ, 2003b, p. 1). Linguistic competence is relevant in many environments (Araujo, 2009). However, when the additional elements of the regulations involved in health care and more specifically, mental health care, are introduced, linguistic competence becomes even more critical. This area is so important that the Centers for Medicare and Medicaid Services (CMS) commissioned the AHRQ to develop a guide to assist and direct managed care providers in developing culturally and linguistically appropriate services (U.S. Dept. of HHS, AHRQ, 2003a). As has been noted by Kaufert and Putsch (1997), linguistic fluency may not be sufficient for good communication unless cultural differences and linguistic nuances are considered. Linguistic discontinuity can arise from a variety of circumstances, including but not limited to, differences in native languages and physical issues such as brain injuries and deafness. The National Center for Cultural Competence (NCCC) uses the term language access to describe providing access to a variety of resources and services for individuals who do not speak English or do not speak it well (NCCC, n.d.). An inability to competently speak

English limits access to a myriad of services, including education, health care, legal, and mental health (NCCC, n.d.). It is estimated that between 4.2% and 11%, or 11 to 21 million people in the United States, experience some difficulty with language access (NCCC, n.d.; National Health Law Program [NHeLP], 2006). Furthermore, roughly 6.2% also fall into another multicultural category, making them even more negatively affected by diversity issues (Castrogiovanni, 2008). NHeLP (2002) reported that 47 million or 18% of people in the United States speak a language other than English at home. Of that group, many stated that they did not speak English at all or fluently. This breaks down to 28% of all Spanish speakers, 22.5% of Asian and Pacific Island language speakers, and 13% of IndoEuropean speakers (NHeLP, 2002). NHeLP has developed a statement of principles for language access, which has been endorsed by a number of professional organizations, including the APA. These principles entail ensuring (a) effective communication between providers and clients, (b) accessible competent language services appropriate for the health care setting, (c) appropriate funding that allows for competent language services, (d) the creation and funding of appropriate language services by public and private insurers, (e) the promotion of linguistic diversity by all providers who have direct contact with clients, (f) ongoing education for staff providing opportunities to improve linguistic services, (g) access to English as a Second Language instruction for clients and staff, (h) continuous quality improvement to ensure that language services are decreasing language disparities and medical errors, (i) that providers of language services (interpreters, translators, and bilingual staff and clinicians) are competent, (j) the enhanced collection of data to improve services and research, and (k) that language services are available in all health care settings (NHeLP, 2002). Clinical issues. In the area of health care, a clear understanding in the communication between client and provider is essential. The consequences of a miscommunication can be a matter of life or death (NCCC, n.d.; NHeLP, 2006). A number of policies, regulations, and guidelines have been developed to guide psychologists (Sireci & Zenisky, 2006) and 231

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other professionals in providing ethical services to those clients who face language access barriers (Martinez, 2010). Information on various state laws addressing mandatory language access can be found at http://www.healthlaw.org (go to Issues and click on Language Access). To comply with the APA Ethics Code, psychologists must be aware of and conversant with the relevant available materials (APA, 2010). Often, the first question a clinician encounters is whether to use a translator or interpreter. This is a subjective decision that may be more or less apparent to the provider. When working with a client or the parent of a client who is not conversant in English, written and oral communications need to be translated and interpreted to ensure maximum clarity (Partida, 2007). It is less clear, however, when the client has some degree of English literacy proficiency. It is always best to err on the side of caution. Subsequent queries include locating a competent translator or interpreter and evaluating the quality of that person’s work. Psychologists should identify agencies that hire translators or interpreter or act as a clearinghouse to connect providers and interpreters (Martinez, 2006). Members of the linguistic competency community disagree regarding the role of translators and interpreters. The more traditional school of thought considers the translator or interpreter as a neutral party who does not intrude in the treatment relationship (diversityRx, n.d.; Kaufert & Putsch, 1997), in a manner similar to the use of translators and interpreters in legal and business proceedings (Kaufert & Putsch, 1997). In the health care arena, some researchers believe that it would be more productive to have translators or interpreters use their superior cultural knowledge in deciding how and when to convey information (diversityRx, n.d.; Kaufert & Putsch, 1997). A void that exists is a code of ethics for translators and interpreters that is sensitive to the circumstances of the particular situation (Goode & Jackson, 2003). The code of ethics for sign language interpreters (Language Line, 2003) addresses confidentiality, accuracy and completeness, impartiality, conflict of interest, disqualification and impediments, accreditation, professional courtesy, professional development, and high standards of conduct (Language Line, 232

2003). In multidisciplinary situations, psychologists must reconcile the ethics codes and standards of other professions with the APA Ethics Code. Sexual minorities. APA has developed a set of guidelines for psychologists and others who work clinically with lesbian, gay, bisexual, transgendered, and questioning (LGBTQ) populations and their families. The purpose of the guidelines are to supply “(a) a frame of reference for the treatment of lesbian, gay, and bisexual clients and (b) basic information and further references in the areas of assessment, intervention, identity, relationships, and the education and training of psychologists” (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000, p. 1440). In a review of Paying for Pleasure: Men Who Buy Sex, McCarthy and Thestrup (2009) asserted that most psychologists avoid inquiring about sexual orientation and other issues regarding sexuality with clients. Some hypothesize that many psychologists do not want to know about a client’s sexual orientation because that would require them to address whether this is an egosyntonic or egodystonic element. As a profession, psychologists do not classify same-sex relationships as clinically pathological. As human beings, however, there are psychologists who personally view homosexual behavior and relationships as aberrant. Although there is no current data reporting how widespread this attitude is among psychologists in the 21st century, it is essential that psychologists be aware of their own attitudes and prejudices regarding LGBTQ clients (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000). After examining their attitudes and prejudices, psychologists should work on changing their own mind-set, when necessary, to avoid harming or impeding the clinical progress of a client. When this is not perceived to be an option for the psychologist, an immediate referral is necessary. Standard 2.01, Boundaries of Competence, requires psychologists to be aware of the limits of their competence regarding the clients with whom they work. Therefore, psychologists should seek training, supervision, consultation, or other guidance before working with LGBTQ clients, directly or through their supervision of others (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000).

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Psychologists must be cognizant of the social stigmatization, violence, and discrimination that persons who are LGBTQ face every day. Bronfenbrenner (1992) described an ecological approach to understanding development, functioning, and overall adaptation. He asserted that an individual’s ability to adapt to their environment must be evaluated at the microsystem level, which is the immediate setting where the individual primarily functions; the exosystem, or the individual’s community or neighborhood; and the macrosystem, which is viewed as broader society and social institutions. Each of these levels addresses how the expectations, attitudes, and values of others (e.g., family, neighbors, schools, churches, and images from mass media) affect the individual’s understanding of and views about themselves and their behavior. Psychologists must be able to look beyond the surface dynamics presented by LGBTQ clients and not immediately interpret certain behaviors as pathological. Furthermore, psychologists must be able to help clients understand how societal biases may contribute to negative or conflicted feelings that they may hold about their sexual orientation (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000). Clinical issues. LGBTQ men and women are at risk for a variety of mental health problems, not because of their sexual orientation but because of sociopolitical issues, sociocultural issues, and the reactions they receive in a homophobic society (Greene & Herek, 1997). Therefore, it is important for the psychologist to be aware of historical and contemporary stressors to accurately diagnosis and treat this population (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000). Understanding the life experiences of LGBTQ clients means understanding the sociocultural environment and prejudices that have shaped their lives (Garnets, 2002; Jamil, Harper, Fernandez, & Adolescent Trials Network for HIV/AIDS, 2009). This also means factoring in the age of the LGBTQ client because of the societal changes that have occurred over time (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000). LGBTQ individuals who are in their senior years probably had a radically different experience and response to coming out than have LBGTQ individuals who are facing these issues in the

21st century. Also of import is the route the client took to acknowledge and disclose her or his sexual orientation (Jamil et al., 2009). Individuals can experience significant trauma associated with remaining closeted or being outed in a disturbing manner. Certain environments are more risky for LGBTQ individuals. Living in a rural area greatly enhances the stress they encounter in a social context because it is infinitely more difficult for LGBTQ individuals to acknowledge their sexuality without encountering physical, social, and emotional discrimination (APA, Committee on Lesbian, Gay, and Bisexual Concerns, 2000). If the LGBTQ individual is able to feel safe and socially and emotionally supported, she or he will be able to develop in a less stressful milieu that allows for more optimal functioning. Individuals who identify as bisexual sometimes find themselves in a societal netherland (Zaylía, 2009). They are not at home or necessarily welcomed by lesbian and gay individuals or groups or by the heterosexual community (Fahs, 2009). Inaccurately, bisexuals often are seen as being in a transition stage, rather than being in a stable sexual stage (MacDowall, 2009). If a psychologist is to be helpful to the bisexual client, it is important to be cognizant of the unique status and experiences of the bisexual individual. Many LGBTQ clients feel marginalized and, at times, outright rejected in their efforts to practice and be part of a religious community (Asanti, 2010). Even members of the clergy are often uncertain about how to relate and minister to LGBTQ individuals. Members of the clergy who are LGBTQ not only face this uncertainty but sometimes also face outright hostility from other members of the clergy (Daniels, 2010). It is important to be cognizant that adolescent LGBTQ clients may be negotiating issues related to several marginalized concerns. For example, adolescents are in the midst of identity development across several spectrums: enhanced cognition, gender issues, racial and ethnic issues, sexuality, and faith and spirituality. In the midst of all this, adolescents are generally struggling to find their place in the world and develop their perspective on life. The psychologist must recognize that the adolescent will need clinical help in putting these identity issues into a cohesive context. 233

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FUTURE DIVERSITY CHALLENGES Psychology is viewed as a profession in transition as it seeks ways to expand its boundaries and evolve to meet the identified needs of traditionally underserved populations and improve access to mental health care (APA, 2003). Changing demographics in the United States have placed new demands on the psychologist in every area of professional practice, organizational involvement,2 and personal functioning. The Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists (APA, 2003) provides direction to psychologists for increasing their level of multicultural competence. The guidelines urge psychologists to use a “culture-centered” approach (APA, 2003, p. 380) in all aspects of their professional work. This approach compels the psychologist to consider the pertinent individual, family, environmental, and historical factors present, allowing for a more comprehensive formulation of the case. Utilizing a culture-centered approach also provides opportunities for clinicians to identify and develop interventions that can be more culturally appropriate than conventional methods and techniques developed under a monocultural umbrella (Pedersen, 2002). At all times, the psychologist is encouraged to probe for issues of immigration circumstances, acculturation and enculturation. The only way to adequately assess and treat any person’s symptom presentation is to approach each case as an individual operating within a broad range of contexts, rather than simply being a member of a marginalized group. Ramirez (1991) developed a psychotherapy model he called the “multicultural person-environment fit world view,” asserting that problems between groups are emblematic of a mismatch in cognitive styles, environmental demands, and relationship expectations that result in problems in communication, empathy, and understanding. When psychologists recognize themselves as cultural beings who also are influenced by their own ecologies, the importance 2

of constantly assessing how one’s own beliefs, values, and experiences affect their perceptions, interpretations, and evaluations of those who are different from them on any dimension is underscored. In a similar vein, Ridley (1985) examined the problems that can occur in therapeutic interactions between White therapists and Black patients. He elaborated the concept of pseudo-transference (p. 29), which is described as a failure on the part of the therapist to identify and address racial and cultural differences as a possible barrier to relationship development. Ridley documented the tendency for European American psychologists to explain transference issues using dynamic formulations when the problem actually emanates from verbal and behavioral microaggressions. Even though this process likely operates outside of the therapist’s conscious awareness, it is detrimental to the patient and the therapeutic process. Issues of retention in therapy, development of trust, or the therapeutic alliance and symptom reduction are all negatively affected by the lack of awareness on the part of the therapist. It is likely that this process can occur in any dyad when the therapist and patient come from different racial, ethnic, cultural, educational, or socioeconomic groups. The Ethics Code, Standard 2.01, Boundaries of Competence, is relevant to this discussion (APA, 2010). Vasquez (2007) also examined the impact of cultural differences on the development and maintenance of the therapeutic alliance. The acquisition of technical and clinical skills is necessary but not sufficient to adequately function in a multicultural environment. Psychologists must remain on a learning curve to ethically work with their clients. Becoming a competent multicultural clinician, teacher, or researcher is a developmental process described by Pedersen (2002) and developed by Sue et al. (1998). The process begins with awareness on the part of the clinician of her or his own values, biases, and assumptions. The next steps involve assessing one’s knowledge and then evaluating one’s skill level. Another step entails acquiring

For further information on materials developed by the NCCC, Georgetown University Center for Child and Human Development, readers are encouraged to view and use the following instruments: Promoting Cultural Diversity and Cultural Competency: Self-Assessment Checklist for Personnel Providing Behavioral Health Services and Supports to Children, Youth and Their Families (NCCC, 2006/2009); and Cultural and Linguistic Competence Policy Assessment (NCCC, 2006).

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and distilling information and understanding the antecedents of the behavior of all involved parties (e.g., client/family, therapist, organizational culture). This allows the clinician opportunities to become more informed to astutely develop interventions that can facilitate positive change. According to Pedersen, “multicultural skill is the ability to find common ground of positive shared expectations such as trust, respect and fairness” (2002, p. 8). Rothery-Jackson (2003) stated, “The ability to conduct culturally sensitive therapy involves an internal, an external, and a collaborative journey, and requires an ongoing balancing process within oneself, with the outer world, and with one’s clients” (p. 13). In every encounter with a client or colleague who is different from oneself on any dimension, psychologists are encouraged to ask themselves what personal and professional qualities and abilities are necessary for a positive interaction to occur. For enduring changes to take place in the multicultural arena, psychologists are charged to push the boundaries of their comfort zones and act as true agents of change in promoting fairness, justice, and access to exemplary professional services. As long as diverse populations are marginalized, there will not be true equality in the ways these individuals are treated and the manner in which services are accorded.

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CHAPTER 9

BOUNDARIES, MULTIPLE ROLES, AND THE PROFESSIONAL RELATIONSHIP Rita Sommers-Flanagan

This chapter covers the vast terrain of ethically informed boundaries in certain kinds of professional relationships. When discussing the importance of professional boundaries in mental health work, most people think first of relationships between psychotherapists and clients. However, similar boundary considerations are relevant for professor–student relationships (Biaggio, Paget, & Chenoweth, 1997; Lamb, Catanzaro, & Moorman, 2004), supervisor– supervisee relationships (Gottlieb, Robinson, & Younggren, 2007), consultant–consultee relationships (Koocher, 2009), and researcher–participant relationships (Haverkamp, 2005). Although different dynamics are at play, the relationships psychologists have with each other, with other professionals, and with the general public have boundaries that warrant ethical consideration as well (Rubin, 2000). To some extent, the contents of this chapter will apply to all of the professionals, but with more attention devoted to the therapist– client relationship. Separate chapters are included in this handbook on emotional, romantic, and sexualized boundaries (Chapter 11 of this volume); academic excellence (Volume 2, Chapter 12, this handbook); supervision (Volume 2, Chapter 13, this handbook); and research (Volume 2, Chapter 16, this handbook). In my rural state, there is a folk saying: Good fences make good neighbors. In this succinct bit of folk wisdom, the existence of good fences creates and defines the relationship. This is a chapter about professional boundaries, which, like good fences, are essential for good professional relationships. Boundaries create and define the professional psychotherapy relationship. When boundaries are clearly

articulated, fully explained, and wisely and compassionately tended, the professional relationship stands a strong chance of being healthy and helpful. The folk saying implies that the neighbors are of equal standing. However, we need to consider an added dimension to our discussion of boundaries in the context of a professional relationship: The parties in a professional relationship are not on equal footing. In professional helping relationships, an inherent power differential brings a great deal of moral weight to bear on the professional. Becoming a professional means finding ways to accept and handle the power inherent in the role. In The Social Origins of Professional Sovereignty, Starr (1982) wrote, Power, at the most rudimentary personal level, originates in dependence, and the power of the professionals primarily originates in dependence upon their knowledge and competence. In some cases, this dependence may be entirely subjective, but no matter: Psychological dependence is as real in its consequences as any other kind. Indeed, what makes dependence on the professions so distinctive today is that their interpretations often govern our understanding of the world and our own experience. To most of us, this power seems legitimate: When professionals claim to be authoritative about the nature of reality, whether it is the structure of the atom, the ego, or the universe, we generally defer to their judgment. (p. 4)

DOI: 10.1037/13271-009 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Part of the power society gives to professionals is the power to determine and uphold the boundaries that define and protect the professional relationship. This is likely true of almost any professional relationship. But for psychotherapists, it is an integral part of the job, both ethically and clinically. No matter what theoretical orientation the psychotherapist adheres to, or which techniques are used, the relationship itself is a significant part of the helping or healing equation. Not many theorists or clinicians currently argue, as Rogers famously did, that a certain kind of relationship is both necessary and sufficient (Rogers, 1958). However, most, if not all, psychotherapists realize the critical role the relationship between client and therapist plays in effective interventions. In most forms of therapy, boundary concerns are central because the trusting professional relationship itself is part of the healing process (Gelso & Hayes, 1998). Boundaries define and protect this relationship, and the relationship is the most essential tool in the toolbox—the cornerstone in the foundation. Many writers have noted that one strand of the history of boundaries in psychotherapy originated in the overall effort to manage transference responsibly. Although some biographies have suggested that many well-known therapists engaged in intimate or sexual relationships with their clients (Baur, 1997), in the 21st-century professional climate, this has become absolutely forbidden at both the ethical and legal levels. Some authors claim that the establishment and maintenance of professional boundaries is directly related to avoiding the development of a sexual relationship—the “slippery slope” argument (Gutheil & Gabbard, 1993). This hypothesizes that small boundary breaks either lead to larger breaks unconsciously, or that smaller boundary breaks are a conscious form of grooming, engaged in by the sexual predator (Simon, 1989). In some ways, however, this is a narrow way to view professional boundaries overall (Gottlieb & Younggren, 2009). Boundaries exist to enhance the professional relationship and to further the possibility that the teaching, research, or therapy will achieve the full educational or healing potential inherent in the relationship and related techniques and materials. Sometimes ethics codes are perceived as veering distinctly toward the “thou-shall-not” side of the ledger, 242

and these codes may seem to be oriented toward protecting the professional from lawsuits more than guiding professionals toward their highest calling. Setting and maintaining boundaries can seem this way (Lazarus, 2007). It might seem as if the boundaries are there to protect the profession or the professional, but that really should not be the case (Zur, 2007). Boundary setting and maintaining is a caring, limit-setting act, done in the service of modeling healthy relationships and healing and done from a place of compassion. It is deceptive to insinuate that psychotherapists can be all things to all people, or all things to any one person. We cannot save people from their pain, and we cannot travel their journeys for them. Some argue that crossing a boundary for a certain client implies a kind of specialness that works against the basic goals of therapy (Langs, 1978). However, others (Zur, 2007) have suggested that within some limits, professionals can individualize the setting of boundaries on the basis of such factors as client dynamics and therapist experience. Clearly, boundaries matter a great deal. In fact, without some form of boundaries, there are no safe or effective helping relationships. So, if they are that important, how do we determine them? Of course, there is no easy answer. Defining, enacting, and maintaining ethical boundaries interacts with theoretical orientation, treatment goals, client and therapist attributes, financial constraints, and setting. This chapter covers practical topics, including physical contact; self-disclosure; simultaneous and sequential relationships with clients; nonprofessional contact outside therapy; finances and bartering; time management, dress, and office matters; food and drink; language; gifts; social, spiritual, political, cultural, or cyberspace connections; and considerations in crisis work. Professional relationships, however, have few one-size-fits-all boundary demarcations. Therefore, before launching into the particulars, it is wise to take one step back and consider how it is that humans have grappled with deciding what is right, or good, in the most profound sense. What system, formula, or set of beliefs do we use to decide a right course of action? The following section provides the background for this discussion. Rather than focusing only on do’s and don’ts, we should first explore the “how and why.”

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BOUNDARIES AND MORAL PHILOSOPHY In the world of applied ethics, four or five moral philosophies or positions often are cited, including character ethics; duty-based ethics; utilitarian ethics; principlebased ethics; and feminist ethics, ethics of care, and situation ethics. This section provides a brief summary of each, linking a few of the tenets to the moral considerations related to professional boundaries.

Character Ethics Aristotle, the founder of what has come to be known as virtue or character ethics, offered important moral principles to consider in the realm of professional boundaries (Aristotle, trans. 1955). First, his view of the fully self-actualized, virtuous adult human provides good news on at least two fronts. The good news is that humans are built to be virtuous. Aristotle believed that people come into the world with a blueprint that, if followed, will yield a profound sense of satisfaction and happiness, which he called eudaimonia. He believed that people have diverse professional callings and gifts to express in the world, but to experience profound happiness, the mature adult must be a virtuous person. Although we have to work at it, we are built to become virtuous. So, according to Aristotle, our calling as psychologists will not be fully satisfying unless we also strive to be virtuous in the way we work. The second piece of good news, from the perspective of a midlife writer, is that Aristotle (trans. 1955) did not think people become accomplished, virtuous adults all at once—it is a process that requires years and years of training, apprenticeships, practice, and modeling. He did not expect anyone to be ready to assume the mantle of mature, virtuous adulthood until after the age of 50. Aristotle (trans. 1955) also placed faith in the collective determination of virtue. He might have said something like, “If you want to understand courage, find a person that the community has identified as courageous and see what that person does.” Mental health ethics codes addressing professional boundaries reflect the collective wisdom of virtuous psychologists. A young, still-developing psychotherapist does well to heed this collective wisdom. Another Aristotelian contribution to our consideration of professional boundaries has to do with

moderation. Aristotle (trans. 1955) was the originator of the concept of the golden mean. Real virtue lies in the middle way. It is possible to have too much courage, or too little; too much generosity, or too little. The concept of the golden mean gives modern-day professionals permission to figure out what too rigid–too loose, or too many–too few might mean when applied to boundaries. I will return to this consideration when applying codes, laws, therapist inclinations, client needs, and theoretical guidelines to the establishment and maintenance of appropriate professional boundaries.

Duty-Based Ethics Immanuel Kant has the distinction of being considered the founder of duty-based, or deontological morality (Kant, trans. 1963). This is the morality of absolutes—of doing one’s moral duty no matter what the costs, and no matter what the outcome. Kant’s categorical imperative (unconditional command) can be paraphrased as follows: Act as if you could will your action to become universal law. If the action you are about to take can be generalized to your society, so that all people at all times can choose to do what you are doing, without preconditions or caveats, and your society would be a healthy, happy place to live, then your action is moral. Professionals are expected to do their duty objectively, with client welfare as their highest obligation (R. SommersFlanagan & Sommers-Flanagan, 2007). Kant (trans. 1963) also insisted that we can never justify using other human beings as a means to an end. Human beings are ends in and of themselves. All of our actions must honor this basic moral truth. Of course, humans cannot really apply such selfless, comprehensive, omniscient standards to their actions, but the intent must be there. We can use these imperatives when we are considering either creating or breaking boundaries. Are we building or adhering to a professional boundary system that is just and fair—one that can be applied to all? Could we allow all other psychotherapists to make the same boundary decision we are making, in all times and in all places? Are we defining our professional relationship and ensuring that our boundaries are handled in a way that never veers toward the client as a means to an end? These are 243

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the questions one would ask from a deontological moral position. For instance, because a caring relationship is central to the efficacy of psychotherapy, continuing to see a client you did not like or even hated just because the client paid full fee every week would be a violation of your duty. The client’s well-being and the client’s right to be seen by someone who cares would dictate that you should make a referral rather than keep seeing the client.

Utilitarian Ethics Utilitarian ethics is pragmatically focused on outcome and is sometimes called consequentialist or teleological ethics. Utilitarians ask, “What will bring about the greatest good for the greatest number?” John Stuart Mill is given credit for articulating this view most fully, and it is a familiar moral position for those who believe in a democratic form of government (Burtness, 1999). We evaluate the morality of a practice, rule, or law by its real or calculated outcome. The moral outcome provides the greatest benefit for the greatest possible number of people. In providing psychotherapy, clients constitute the population of interest, and the greatest good could be defined as effective psychotherapy. If ethical guidelines for boundaries were determined from a utilitarian frame, boundaries should be set and observed that will benefit the highest possible number of our clients as often as possible.

Principle-Based Ethics In the 1970s, working in the then-new field of bioethics and drawing on the philosophy of W. D. Ross (1930), Beauchamps and Childress (1979) proposed four moral principles to consider when making difficult decisions in medical care. Medical costs had begun their acceleration, while at the same time technology had opened doors to near-miraculous medical possibilities, such as in vitro fertilization and heart transplants. The four principles Beauchamps and Childress (1979) identified were autonomy, beneficence, nonmaleficence, and justice. Honoring each principle, and reasoning through the lenses they provided, became the task of countless hospital medical ethics boards. These terms should seem quite familiar because in a slightly expanded 244

and rearranged form, they provide the substance for the aspirational portion of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010). The principles are Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; Principle D, Justice; and Principle E, Respect for People’s Rights and Dignity. (More information on these principles can be found in Chapter 1 of this volume.) All of the principles identified in the Ethics Code are relevant to boundaries in psychotherapy. Each can contribute a piece of the puzzle as we consider ethical boundaries. They do not provide one clear answer (Beauchamp & Childress, 1994), however, and sometimes adhering to one principle leads to actions that contradict another principle. For instance, a psychologist who discovers that her son has become close friends with a young male client she is seeing might wonder what to do. She might believe that the principle of fidelity guides her to continue to work with the client, working diligently to maintain confidentiality and guard the therapy relationship. When the client begins to reveal information about the therapist’s son’s drug-experimentation behavior, and she realizes that her client someday will find out that this friend is her son, beneficence might argue for disclosure or referral.

Feminist Ethics, Ethics of Care, and Situation Ethics Although distinct from each other, each of the philosophical stances in this section demands that we consider the context and the particulars in a given situation to determine the moral course of action. Feminist theory includes a critique of power, and the Feminist Therapy Institute (1999) offers a code of ethics that explicitly guides feminist psychotherapists in addressing power and boundaries related to power in the professional relationship (Brown, 2008). In U.S. culture, professional relationships have an imbalance of power, in that someone is seeking, and often paying for, the expertise of someone else. Certainly, the seeker has power, too, but the professional sought out for assistance is imbued with a greater degree of authority. Feminist ethics guide professionals in the careful and conscious use

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of this power, with the main objective being to empower the seeker. Ethics of care (Gilligan, 1993) and situation ethics (Fletcher, 1966) place central importance on the specific context and relationship at hand. Placing the relationship in the center, as care ethics does, provides an alternative to an overemphasis on individual notions of fairness and justice. Care ethics, however, is not exclusively centered on the immediate relationship but also on the “web of relationships that extends beyond immediate personal relationships to people of other races and nations and to all living things” (Taylor, 1995, p. 2). Fletcher’s (1966) situation ethics calls for moral decisions to be based on selflessness. The moral action is the most loving, correct, or healing action possible in each situation. Similar to Aristotle (trans. 1955), Fletcher believed that humans are born with the potential to behave in highly moral ways but that we need training as well. We must use our reasoning, our training, and our hearts to make the best moral decisions. When making a specific boundary rule or decision, psychologists almost always will include particular aspects of the context. The careful and conscious use of power and influence, the impact on the relationship in question, and the mandate to be a healing force in the client’s or student’s life all vie for the professional’s attention. Juggling the competing demands and urges can be excruciating at times and makes many professionals glad that standards and guides exist so that each particular situation does not require recreating the ethical wheel.

Maintaining Boundaries Ethically speaking, even for the most evolved, intelligent, empathic psychologist, flying by the seat of one’s pants in determining healthy boundaries is inadvisable. Establishing and maintaining boundaries in the professional relationship cannot be safely done at an intuitive level. The moral philosophies described in this section provide an excellent starting point for the wise professional. In the best scenario, the philosophical basis is used in combination with the Ethics Code, good consultation and supervision practices, and the guidance provided in the remainder of this chapter to create a safe, predictable professional relationship, whether this relationship is between therapist and

client, supervisor and supervisee, professor and student, or researcher and participant. RELEVANT GUIDANCE FROM THE APA ETHICS CODE From the preamble of the Ethics Code, we have the following: Psychologists are committed to increasing scientific and professional knowledge of behavior and people’s understanding of themselves and others and to the use of such knowledge to improve the condition of individuals, organizations, and society. Psychologists respect and protect civil and human rights and the central importance of freedom of inquiry and expression in research, teaching, and publication. They strive to help the public in developing informed judgments and choices concerning human behavior. In doing so, they perform many roles, such as researcher, educator, diagnostician, therapist, supervisor, consultant, administrator, social interventionist, and expert witness. (APA, 2010) Carefully read, this is a tall order. However, this is as it should be. Ethical principles should always give us something to aspire toward—a vision for ideal actions leading to an ideal world. In this preamble, psychologists are urged to be many things to many people. However, reading further, they also are cautioned against filling more than one role in clients’ lives if additional roles would interfere in any way with the objective treatment of clients. Trying to practice ethically, striving for the highest good for our clients, our society, and our planet, we sometimes will face contradictory, or at least less than clear-cut, guidance. In addition to the principles discussed in the previous section, the following standards from the Ethics Code provide further guidance relevant to professional boundaries: ■

Standard 3.04, Avoiding Harm: avoiding harm to those with whom we work; 245

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■

■

■

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Standard 3.05, Multiple Relationships: being extremely careful about having concurrent or consecutive roles other than our primary professional role in our clients’ lives (reading between the lines, one could say evaluate all potential multiple roles and avoid most); Standard 3.06, Conflict of Interest: avoiding any actions or relationships that could foreseeably create a conflict of interest; Standard 3.07, Third Party Request for Service: being cautious when a third party is referring or paying for the professional relationship with your client; Standard 3.08, Exploitative Relationships: absolutely avoiding exploiting clients or relationships with clients; Standard 3.10, Informed Consent: making sure you provide your clients with ongoing information about every aspect of your practice and the rules so they can knowingly provide their consent for what you are doing together; Standard 6.04, Fees and Financial Arrangements: being clear, honest, and lawful in your fee structure; and Standard 6.05, Barter With Clients/Patients: being careful with any barter-for-services arrangements so they are fair and will not harm the therapy relationship.

Other aspects of the Ethics Code also may come into play, depending on the circumstances and exigencies in any given situation.

Relationship Roles, Rules, and Boundaries The term boundary is an interesting concept to define in the context of human relationships. People speak of boundaries, boundary breaks, crossings, extensions, and violations almost as if they take up physical space in the world. But in relationships, a boundary is primarily part of the psychological landscape. A boundary is a limit, rule, guideline, or protective space that helps define the relationship or is defined by the relationship. When writing about boundaries, authors use a variety of terms when they are referring to occurrences that involve not observing or holding the 246

boundary. Most generically, such events might be called boundary breaks. However, this is not precise enough because some authors speak of blurring boundaries. Is the act of blurring a boundary the same as breaking a boundary? Others have tried envisioning something called boundary extensions (R. Sommers-Flanagan, Elliott, & Sommers-Flanagan, 1998). By this, we mean that the basic professional relationship boundary stayed in place, but it was stretched or extended to include behaviors that are not usually included. Although notions of blurring or extending might be somewhat useful, the terms boundary crossings and boundary violations have come to be the most common. In an influential and oft-cited article, Gutheil and Gabbard (1993) proposed that whenever a boundary was blurred, extended, made fuzzy, ignored, transgressed, or broken, it should be called a boundary crossing. If this action was subsequently shown to have caused damage, it then would be called a boundary violation. Both a boundary crossing and a boundary violation involve breaking a boundary that exists by law, ethics, or custom in the professional relationship. By Gutheil and Gabbard’s (1993) definition, a boundary crossing involves breaking a boundary deliberately in service of the therapy process in a way that does not cause damage and does not impair objectivity. The boundary crossing might even be involuntary or unavoidable, such as often occurs in small communities. In contrast, a boundary violation involves breaking a boundary that either directly results in harm to the client or in some way imperils the client, the therapy relationship, or the therapist’s objectivity. As this chapter proceeds through the various boundary considerations, I will refer to these terms and point the reader toward evaluative, problem-solving, and decision-making guides.

Functions of Relationship Boundaries There are no relationships without boundaries, but sometimes a boundary is implicit or even unconscious, and we might recognize the boundary only when it has been made apparent by being crossed or violated. Students might comfortably ask each other for enough money to buy a cup of coffee to stay

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awake during a boring lecture, but if, instead, a student asks the professor, each might experience that uncomfortable awareness that comes when an implicit boundary has been crossed. Relationship rules and boundaries are culturally determined and often are influenced by gender role; power; age; kinship; and levels of trust, commitment, or intimacy. Boundaries might include touch, frequency of contact, dress, practices of eating or not eating together, levels of self-disclosure, and work and recreation patterns. Another way of thinking of boundaries is that they constitute relationship obligations and privileges. When we fail to live up to the obligations or unfairly take advantage of the privileges, boundaries have been crossed and possibly violated. At the very least, this causes discomfort and confusion. At the worst, this causes disappointment, pain, broken relationships, lawsuits, and other collateral damage (R. Sommers-Flanagan & Sommers-Flanagan, 2007). Earlier in the chapter, we considered the power inherent in professional relationships. Professionals are expected to perform their duties objectively and with client welfare as their highest concern. Most people understand that the boundaries and expectations defining a personal relationship stand a strong chance of compromising professional objectivity. In our personal relationships, we want to be favored, sought out, and treated specially. We also want to be free to offer the same special treatment back—we want a reciprocal level of intimacy and obligation. Relationships with family members, lovers, or friends have role expectations and mutually observed boundaries that come into direct conflict with professional relationships. Professional relationships have an imbalance of power, and the professional must provide objectivity and equal treatment to those who seek professional services. This is why ethics codes caution strongly against providing professional services to friends and family. This is also the reason that friendly or intimate behaviors in the professional relationship can cause role confusion and boundary trouble if not properly reasoned through and handled in ways discussed in the following sections. Many of the boundary considerations come as a surprise to new graduate students who are becoming therapists. It seems

counterintuitive because behaviors that would be quite welcome and productive in a friendship might be counterproductive or even destructive in a therapy relationship.

Boundaries in Psychotherapy Psychotherapy is unique in the realm of professional relationships because the relationship itself is a significant part of the healing or helping process. There are many relationship boundaries to be considered from both clinical and ethical points of view. The clinical and ethical dimensions are not discrete but instead often share common ground and, in fact, inform each other. For instance, hugging a weeping client may be helpful clinically because of the comfort offered and the empathy experienced, or it may be clinically questionable because the client needs space and does not want or need a hug. This latter situation makes the hug a wrong step clinically, which then contributes to it being a wrong step ethically. Obviously, touch is one of the clearest boundaries we can discuss, but it is far from the only one. Because of coverage in other chapters of this handbook, this chapter does not cover boundaries with families, groups, and other forms of multiple clients. In this section, we examine touch, physical contact, and personal space; self-disclosure, including concurrent multiple relationships, sequential multiple relationships, and nonprofessional contact outside therapy; finances and bartering; time management; dress, office décor, and office setting; food and drink; language; gifts (both offering and receiving); and social, spiritual, political, cultural, or cyberspace connections. With each of these boundaries, one must consider the interaction of other relevant factors, including theoretical orientation, treatment goals, client and therapist attributes, financial constraints, setting, and potentially a host of other factors, even including climactic conditions. For instance, a behavioral therapist who asks a client to lie down on a couch will have more explaining to do than an analyst might. Few would worry about the ethics of giving a child client a whole wheat muffin to eat during a session after school, whereas offering a box of Godiva chocolates to an attractive adult client on Valentine’s Day might seem like a significant boundary break. Extending the 247

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therapy hour for a few minutes because a client struggling with Asperger’s syndrome is relating an exciting social success is less problematic than extending it because the client is so witty, rich, good-looking, or manipulative the therapist just can’t help herself. Listing climactic conditions might seem a bit of a reach, but consider this example: I still carry a bit of guilt about the day the heating system broke in our office, and it disrupted things enough that I left early, forgetting to contact one client to cancel. She arrived on time and sat waiting for me in our freezing cold waiting room for an hour. Of course, this failure on my part really is not about the climate—it is about fidelity and responsibility. I broke trust with her because I did not keep my commitment to her. This was a boundary break and a relationship breach. From a Kantian point of view, my duty was to take full responsibility and apologize, which I did. I offered her a free session, she forgave me, and life went on. I had to quiet my urges to do more—to maybe buy her a sweater, or bring hot chocolate to every session from then on. My consultation group helped. I did not overcorrect, but my thoughtlessness lingers as something I wish I had not done. Climate also influences boundaries related to setting, time, dress and touch: Think big coats, icy roads, cold or hot offices, bulky or skimpy clothing, or excessive small talk because the weather is so dramatic. The next sections cover each of the dimensions listed, paying attention to theoretical orientation, issues of informed consent, special populations, and rural or small community dynamics. Case examples and dilemmas help bring the concerns to life. These examples are drawn from clinical practice and literature, but details have been altered to ensure confidentiality. Touch, physical contact, and personal space. Human beings have a fascinating array of rituals having to do with greeting, sharing time and space together, and departing. From the formal hands-together Namaste that people use to greet one another in India and other parts of the world to the intricate three-part cheek kissing one might expect when greeting someone in Russia, greetings and departures have culturally determined distinctions and meanings. Furthermore, 248

seating arrangements and other dimensions of personal space carry gender and status signals about which we might be only partially aware. In Western cultures, many professional relationships begin and end with a handshake, although with recent concerns about pandemic viruses, we may see this ritual diminish. Other cultures may be far less likely to shake hands, especially across gender lines. Personal space, too, has cultural variation. Again, in Western cultures, professional relationship distance is determined by the size and shape of the office, the furnishings, and the type of professional engagement. Although actual contact is much more salient in boundary considerations, moving to be physically closer to a client or choosing an unusually distant position also can warrant attention. The general rule with physical contact in the psychotherapy relationship is be extremely careful, conscious, and wise. In almost every case, do not touch clients unless you have discussed this with them and the touch is clearly understood as part of the therapy relationship. If you spontaneously touch your client or your client spontaneously touches you, talk about it. There is a reason that psychotherapy is called the “talking cure.” Certainly, many therapies combine talk and body work. This falls outside the realm of the Ethics Code, and requires specialized informed consent and additional credentials. Also, many people who provide therapy are kind, physically demonstrative people. Thus, touch is a boundary that interacts with therapist attributes. Touch is not forbidden. It is just complicated and requires informed consent; explanation; and, at times, processing with the client. Touch also interacts with client attributes. There are many attributes that require attention as you sort out if, when, and how to touch. For example, clients with sexual trauma histories, clients with Axis II disorders, or clients with impulse control or anger problems may not be the best candidates for touch. In fact, ethics discussions about touch usually divide touch into nonerotic touch and erotic touch, which, when one really stops to think about it, is somewhat amusing. Is a kiss erotic? Those with healthy multicultural awareness will pause before answering that. When on diplomatic visits, President Obama and First Lady Michelle Obama greet German Chancellor

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Andrea Merkel with kisses on each cheek, it does not seem at all erotic. Is handing a weeping person a hanky and lightly brushing this person’s hand erotic? Was the hanky lacy? Did the brush of skin send a little jolt of awareness through the person’s body? Did it lead to extended eye contact? Or was the hand brushed by an older married female therapist, and did the hand she brushed belong to a young recently widowed woman? Both intention and reception determine whether touch is erotic. Hopefully, we are in control of our intentions—but we are not in control of the reception, thus underlining the importance of caution with touch. Touch is especially important to consider with children. Many people touch children whether the children want to be touched or not. Helping child clients express their wishes about being touched can be both therapeutic and ethical. You can say something as simple as, “Emily, sometimes I like to do a high-five with my clients when they tell me about an excellent day they had. How would that be for you?” Or, “Sammy, I know you want to sit on my lap and I think it is nice that that feels safe to you, but we will do better work together if you sit on the bean bag chair so we can see each other and talk. Okay?” One clinical population I worked with some time ago included a large number of sexually abused children. Even with special training and supervision, I was astonished at the variety of ways these very young clients found to initiate touch, and I still remember how challenging it was to set and uphold clinically sensitive boundaries. Of course, people of any age who have experienced unwanted touch of any kind need extra care and wisdom from their therapists. This is not to say they cannot be touched, but the topic warrants extraordinary clinical sensitivity and care. Other populations deserve special concern as well. Consider the following case example. Case Example 1 Yuki, a 24-year-old Asian American, came to the Student Health Counseling Service. The receptionist had given Yuki an appointment to see Frank, an eclectically inclined psychologist with a leaning toward cognitive–behavioral work. Frank arrived in the waiting room, approached

Yuki, and accepted the clipboard she offered him with the paperwork filled out. “Thanks, Yuki,” he said as he offered his hand for a handshake. “I’m Frank.” Yuki shrank back, glanced down, and waited until Frank pulled his hand back. Frank smiled warmly as he lowered his hand and said, “My office is right down this hallway.” He led Yuki to his office, closed the door, and sat down. Questions about communicable diseases aside, in the language of my graduate students, did Frank blow it by offering his hand? The answer may depend on theoretical orientation, agency policy, and the way Frank handles the interactions following this interaction. Rarely, is there one right answer. Ethically, we hope Frank has done his homework and can justify why he offers to shake hands with all new clients. Clinically, we hope Frank is skilled and can recover from offering a kind of touch the client chose to refuse in the first moments of the therapy relationship. Cultural practices include many rules about physical space and touch, and there is great variation in both amount and type of touch expected in different relationships. Therefore, touch, or the absence of touch, will carry different meanings for different clients. However, these differences do not free us to hug our French clients, wave diffidently to our British clients, and bow to our Japanese clients. We need to approach each client with Sue’s (2006) scientific mindedness to determine the meaning of touch for clients as it interacts with their experiences and expectations in therapy. Sue reminded us that we can never assume that we know something certain about an individual simply because of that individual’s race or cultural background. We must approach with hypotheses, not conclusions, about what might be appropriate. Furthermore, touch in therapy has limits and meanings that are transcultural and that may require processing and educational discussions with clients. When considering professional boundaries in physical space and touch, we need to acknowledge that this is a two-way street. Clients can initiate touch or settle themselves into physical space that is 249

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uncomfortable or troublesome for the therapist as well. Clients can even become seductive, abusive, or act in very hostile or controlling ways. The astute mental health professional realizes that such actions constitute important clinical information and provide an opportunity to explore the impulses and implications of these behaviors (Hartl et al., 2007). Case Example 2 A young colleague, Ruth, was working with Dorothy, a woman with depression who was at least 10 years older than Ruth. Dorothy was a court-ordered client whose children had been placed in foster care because of abuse and neglect. A previous psychological assessment had given Dorothy a number of diagnoses, including borderline personality disorder. Dorothy was emotionally labile, often sobbing with sadness, shouting with anger, and laughing with gusto in the same session. At the end of each session, Dorothy would stand, declare that she needed to get going, and wait for Ruth to stand. Then she would grab Ruth for a full-body farewell hug. The first time this happened, Ruth was caught off guard and merely reciprocated the hug with far less enthusiasm than Dorothy. The second time, Ruth had strategized in her own mind how she would take control, announce the session was over before Dorothy, and avoid the hug by moving to the door quickly. Of course, this did not work, and Ruth was again the unwilling recipient of a big bear hug. It might be argued that there are more clinical concerns at play in this scenario than ethical. To a large extent, this is true. Ruth needs wise consultation and supervision to find a way to work with Dorothy on the issues of touch, power, and control that Dorothy’s hugging suggest. Because touch is an important boundary in psychotherapy, if Ruth does not address this behavior and Dorothy challenges Ruth on ethical grounds, Ruth will be questioned in ethical domains of competence as well as boundaries. Therefore, Ruth will need to talk with Dorothy 250

about this interaction. Ruth will need to make it clear that she does not want to end the session with a hug, and she will need to help Dorothy work through this limit. Touch is a powerful component of human communication and relationship. Touch can convey status; empathy; limits; warmth; and, of course, intimacy. Touch can be used to comfort, support, stimulate, or control others. In some contexts, it can be a display of power or hierarchy (Woods, 2004). It is a boundary that should be crossed only consciously, probably rarely, and the crossing should be in keeping with therapy goals. A good rule of thumb with touch and other boundary considerations is this: If you can comfortably imagine your ethics professor and your most admired colleagues watching you through a one-way mirror as you touch your client or allow your client to touch you, and you are confident that you could explain why you were doing what you were doing, then it is probably a safe boundary crossing (Smith, Clance, & Imes, 2001). Some psychologists have added additional training to their repertoire that includes some form of bodywork for specific disorders. Such deliberate use of touch should be included in informed consent processes. It is beyond the realm of this chapter to fully address the importance of advanced training, efficacy, and outcome research when considering adding some form of bodywork into a psychotherapy practice. Such matters are central and significant in an ethical practice. Self-disclosure. Once supposedly forbidden or seriously frowned on, but most likely always practiced, therapist self-disclosure is a topic of ongoing debate and research in psychotherapy. Like touch, selfdisclosure is a natural part of most healthy and mutual human relationships. The fact that it must be given careful consideration is a pointed reminder of the abnormality of the psychotherapy relationship. The psychotherapy relationship is a distinct relationship. It is not a social relationship. It is not egalitarian. The intimacy level is expected to be extremely disproportionate, leading many of us to call it a “one-way intimacy.” The normative expectation is either no therapist self-disclosure or, more realistically, closely monitored and reasoned therapist self-disclosure

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(Peterson, 2002). Self-disclosure is often viewed positively and, when used carefully, can serve a therapeutic function (Hill & Knox, 2001). Because humans are social animals, self-disclosure generally feels good and, thus, must be monitored closely. We should realize this because our clients are paying good money to have us listen to their selfdisclosures. Being listened to with rapt attention is quite nice. Offering our own life stories and experiences as examples for contemplation or edification of the listener can be rewarding and delightful (just ask any college professor). The problem is that even though it feels very good, such disclosing may not be therapeutic or ethical. When there is a power differential in any relationship, the one with more power can hold forth about him- or herself in a most excruciatingly boring manner and the one with less power is often forced to listen politely. Furthermore, sharing a bit about ourselves can have the effect of abdicating or minimizing our role as a credentialed professional with skilled services to offer and fiduciary responsibilities to fulfill. It is the “ah shucks, I’m human too” excuse. Sometimes, therapists will try to justify a non-self-disclosure boundary break with a self-disclosure boundary break. “I’m sorry I’m late. My husband and I got into a tense discussion, and I got a late start.” Or, “Oh, wow. I didn’t know you were going to be in this golf class. I’ve been planning to do this since my neighbor gave me his golf membership because he was injured in a car wreck. His wife died, you know.” Thoughtless selfdisclosure seems more likely to happen when therapist emotions are running high. The experience of anxiety, guilt, joy, affection, fervor, or fear can heighten our longing to connect, explain, or share. It is because self-disclosure is generally so normal, so socially sanctioned, and so rewarding that it has to be carefully considered by the therapist, especially given the human propensity to rationalize. Thus, it seems best to classify therapist selfdisclosure as a boundary crossing that never should be taken lightly. This does not mean that one should never self-disclose. But each disclosure has to be screened through an appropriate list of mitigating factors. Does it fit with the therapist’s theoretical orientation? Is it offered in the best interest of the client’s well-being? Is there a chance it could

backfire and cause harm? Would a jury of one’s peers agree that the disclosure was in the service of the therapy relationship and thus done primarily for the sake of the client? Have you considered your own attributes and those of your client? Are there cultural considerations? Similar to touch, levels of self-disclosure deemed appropriate vary across cultures. Self-discloure levels require the same awareness and potential processing as other aspects of boundary tending as they interact with culture (Constantine & Kwan, 2003). Of course, self-disclosure might occur despite the therapist’s best intentions. Accidental self-disclosure can occur through carelessness on the part of the therapist, or it can occur just because life has so conspired. Generally, psychologists who live in rural communities or who are members of small cultural, spiritual, or other intentional communities face more unavoidable instances of self-disclosure. Case Example 3 One evening, after a very intense workout, I discovered that I belonged to the same athletic club as one of my clients, 12-year-old Katie. The discovery was abrupt and unsettling for both of us. She and I nearly collided as she was going toward the shower and I was exiting. We were both fully disrobed, and I was groping unsuccessfully for my towel. Flustered, I grabbed a T-shirt and yanked it over my head, trying, but failing to think of something to say. She averted her gaze for a minute, then smiled a mischievous smile, and said, “Hey, Dr. Rita. I really, really like that shirt!” Inadvertent self-disclosures are still boundary crossings. They require clinical attention, but not necessarily therapeutic processing. Deciding if, when, and how to talk about the effect of the disclosure requires clinical sensitivity and judgment, which are both enhanced by contemplation and consultation. My client, Katie, needed no prompting. At our next session, she teased me about my flustered donning of the shirt at the club, and I was able to check in with her directly about how the encounter felt to her. Katie’s mother had recently 251

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been killed in a hunting accident, and her father was having a very difficult time. Katie’s “sighting” of me at the club and processing it led to Katie reflecting on her worries that her dad was not taking care of himself like he used to. It was a productive session, and I managed to avoid using up Katie’s time talking about my own exercise or nudity issues. Sometimes, clients will ask directly for their psychologist to self-disclose. A couple seeking couple’s therapy might ask if their psychologist is married or has children. A gay client might ask if his therapist has any gay relatives. Such requests often have more clinical import than ethical. Choosing when and how much to disclose when requested to do so is an important decision and depends on the theoretical orientation, the therapy contract, and many other clinical factors. Consulting with peers would be a wise idea before making the disclosure if there is any question about whether it could be problematic. Similarly, psychologists who treat seriously impaired or disturbed clients may selectively choose to provide the clients with emergency contact information such as a cell phone number or e-mail address. Of course, such information might be misused, but again, this becomes a clinical issue more than an ethical one. A recently published edited volume devotes 21 chapters to the topic of therapist self-disclosure (Bloomgarden & Mennuti, 2009). The authors explored the many ethical concerns and the therapeutic potential in such self-disclosures. Although self-disclosure must be conscious and calibrated, this volume offers many research-based examples of the therapeutic value of therapist self-disclosure. Pope and Vasquez (1998) reported that literally hundreds of articles and books have explored this boundary. Many dimensions of therapy and the therapy relationship have been considered, including countertransference (Myers & Hayes, 2006), client reactions to therapist self-disclosure (Farber, Berano, & Capobianco, 2004), theoretical orientation as it interacts with the ethics of self-disclosure (Peterson, 2002), and cross-cultural dynamics (Burkard, Knox, Groen, Hess, & Perez, 2006). Obviously, there is no shortage of literature and research in the area. The next subsections cover forms of prolonged self-disclosure: concurrent multiple relationships, 252

sequential multiple relationships, and nonprofessional contact outside therapy. I return to selfdisclosure in other dimensions later in the chapter. Concurrent multiple relationships. The following two sections tease out the complex boundary problems inherent in having one or more relationships with a client in addition to the professional therapy relationship. These problems and complexities also are related to occasional nonprofessional contact with clients; this contact is discussed following these two sections. These related situations are complicated because our ethics clearly tell us that the moral importance of our client’s welfare translates directly to the welfare of the therapy relationship. The therapy relationship has boundaries that protect it. Any other relationship also will have expectations, rules, and definitions—in other words, other relationships and contacts have their own customary boundaries. The boundaries will not be the same, and the resulting mixed set of expectations can be difficult or confusing for the client and, in the worst-case scenario, can lead to loss of objectivity or exploitation on the part of the psychologist. The possibilities of concurrent relationships are endless, ranging from requests to treat your neighbor who has depression, your alcoholic step-cousin, your daughter’s shy best friend who has an eating disorder, or your colleague’s traumatized spouse to requests to become the parish shrink or the university’s wellness expert. It stands to reason that the more troublesome concurrent relationships will be those that are longer, broader, and deeper. Sharing membership in a large professional organization most likely presents far fewer problems than sharing membership in a local Alcoholics Anonymous group, a small spiritual or faith-based community, or an active political committee, or being in the same family. The expectation and connection problems in multiple relationships can go both directions. The mutuality expected in shared memberships in groups or families can seep into the professional relationship. Imagine these sorts of statements emerging during your therapy session with the client: ■

“Hey, Doc. I didn’t see you picking up garbage with the Boy Scouts last weekend. Afraid of getting your hands dirty?”

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“I heard about your husband’s cancer on the prayer hotline. How is he doing? I’m so sorry. Is there anything I can do?” “Man, you brought a cheesy gift to that wedding.” Imagine poor Anna Freud. “Father, I know you can afford to buy me that dress, so why do we have to analyze it?”

On the other hand, the professional relationship, with its singular focus on the client’s healing and well-being, can bleed into the other relationship. Imagine these comments offered as you go about your life outside the therapy office: ■

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“You are a great therapist, but why are you buying that color of paint? I hope you aren’t painting your office that color.” “Excuse me, Madame Chair, but could we ask Dr. Fred to comment on this city ordinance consideration? He is my psychologist, and he understands how such zoning changes would affect people like me emotionally.” “Hi Dr. Jill. Could I have a minute of your time after the meeting? I need to tell you what happened when I tried being assertive with my mother.”

Saying yes to that last request is a boundary crossing with significant legal and ethical risks. Saying no is difficult and will have clinical impact on the therapy relationship. Because your professional duty extends beyond the therapy hour, and saying no can embarrass or infuriate your client, saying no is a form of boundary break as well. When a therapist is handling a professional relationship and one or more other relationships, no contact, request, or behavior is without potential trouble. Often, the easiest ethical action is to refuse to work with potential clients with whom you have another ongoing relationship and to take care not to form any other relationships with your clients while they are under your care. But sometimes, the easiest ethical action is simply not realistic. Regardless, if you have chosen to work with someone with whom you have another concurrent relationship, the burden of juggling the competing demands so that the client is not harmed or exploited falls fully and squarely on you, the paid professional.

Sometimes, you may find yourself in a concurrent relationship you did not know about. You attend a parent–teacher association subcommittee meeting and find that your daughter is in the same class as your client’s son. Your client teaches piano lessons to your grandson. Your husband’s boss is your client’s lover, and they are throwing a party for the employees and significant others. It is unlikely that anyone could generate a hypothetical surprise situation that some psychologist, somewhere, has not faced. The mandate is the same. Even in unforeseen or accidental multiple relationship situations, the burden of care falls on the professional. Another form that concurrent multiple roles can take is for the psychologist to consider having two professional roles in a client’s life. These might include being the couple’s therapist and the therapist for one or both of the individuals in the couple, being a sports psychologist as well as serving in a coaching capacity (Buceta, 1993), being both a therapist and a psychological assessor or evaluator to a client (Strasburger, Gutheil, & Brodsky, 1997), or being a therapist who also provides forensic expert witness services related to the client. Each of these and possibly other multiple professional roles must be weighed carefully against the basic mandates to avoid conflicts of interest, partiality, and loss of objectivity while upholding the principles of fidelity, and justice. Ethical thinking regarding these potential dual roles changes over time. For instance, there are many dimensions to consider when a psychologist treating a client is asked to provide forensic testimony or consultation (Heltzel, 2007; Strasburger et al., 1997), and not all professionals agree regarding what the highest ethical stance might be. (More information on forensic psychology is covered in Volume 2, Chapter 6, this handbook.) As psychologists face the difficult task of deciding to enter into or needing to manage concurrent relationships with clients, the moral philosophies can help sort through the issues. From a Kantian point of view, we would realize that the ideal situation is to have no multiple roles—we would then know that our duty was to care for the client’s well-being at all costs. Furthermore, we would need to ensure that the client was not a means to an end (usually, our 253

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own financial or social well-being motivating us to break a rule that might harm the client). The moral principle of beneficence might cause us to lean toward accepting the client and, for the sake of the therapy relationship, dropping our membership or changing churches. From a utilitarian point of view, however, over the long haul such constriction in the psychologist’s life could cause burnout, limited caseloads, or limited therapy opportunities for clients, and ultimately could be not the greatest good for the greatest number. Different therapists will come to different conclusions. Kant would not have liked this, but at least sometimes, there are no absolutes, except that we absolutely have to do our duty to figure out the best course of action for our client’s welfare. What is important is having a cogent set of ethically informed reasons for one’s choices and an empirically based therapeutic stance and set of goals. Some therapy work includes helping clients with performance enhancement, in vivo phobia work, or other treatment interactions outside the traditional office setting. Other professional work, such as sport psychology, may entail connections with clients in settings far from the traditional office. These are still professional helping relationships, with professional boundaries informed by the practice, treatment goals, and, in some cases, additional ethical guidance for the subspecialty. The informed consent process is the essential praxis between ethical and effective therapy in the context of concurrent multiple roles. Much of the potential harm can be alleviated by clear explanations, open communication, well-thought-out guidelines, and ongoing attention to both the professional relationship and the other relationship from the perspective of client welfare. Because the pressures, concerns, and dangers of concurrent relationships are so similar to those for sequential relationships, the next section addresses sequential relationship considerations. Sequential multiple relationships. Sharing much common ground with concurrent multiple relationships, sequential multiple relationships usually are not ideal either. This is true because ending a relationship does not obliterate it. Ending a 254

relationship changes the timeframe from present to past, but human capacities being what they are, the memory of the relationship lives on, as do some of the boundaries and expectations. Furthermore, from a treatment perspective, therapists very much hope that the benefits of the healing relationship live well past the actual relationship. When considering the ethical impact of a sequential relationship, one must consider the definition, length, breadth, and depth of the former relationship. What reactions do you have when you imagine your past relationship with an inspirational coach? A rotten, really bad employer? A therapist? Now think about how entering into a new, current relationship with that person could alter your feelings about that former relationship. Let’s say you adored and idolized your former coach. How might that change if you ended up in a social relationship with him and found that he treated his friends and family with disregard or cruelty? The past is carried forward in memory and in this way is not really the past. Feelings about, and even the effects of, former relationships can be changed by experiences in the present. Fidelity and responsibility to the therapy relationship are primary, and they do not end when the relationship ends. Just as we cannot violate our former client’s confidentiality, we should not risk harming the therapy relationship, even when it is over. Consider the following case example: Case Example 4 A colleague treated a married couple, Carol and Tony, for more than a year. Therapy ended well, and both parties expressed gratitude for the good work. A year later, Tony approached the psychologist to ask if he could take a summer course the psychologist was teaching for continuing education credit. After consultation, the psychologist set up a free appointment to talk with Carol and Tony together about the request, to help them understand the implications and possible downsides. (Tony might decide the psychologist was not so smart after all. Tony might feel exposed or overly chummy. Carol might feel left out, or worried that

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because Tony took the course, they could not ever use the psychologist again for couples work, etc.) The meeting went well. The couple felt respected and cared for. Tony took the course, got his continuing education credits, and there was no apparent fallout. One of the defining features of a therapy relationship is the expectation of confidentiality. In many forms of psychotherapy, the client’s life and struggles are explored in intimate detail. Therapists are expected to keep the client’s disclosures confidential even after the therapy has concluded. A social or business relationship following therapy is fraught with difficulties because of the imbalance of information and the obligations of confidentiality. The therapist knows much more about the client’s personal life than vice versa. Any attempt to correct this imbalance can be awkward and potentially damaging to the former therapy and its outcomes. Furthermore, depending on the type of treatment and theoretical orientation, former clients might either treasure or dread knowing more about their former therapists’ business acumen or personal foibles. In my opinion and that of others (Remley & Herlihy, 2005; R. Sommers-Flanagan & SommersFlanagan, 2007), therapists should not readily engage in posttherapy relationships. Here are several reasons:

clients differently, depending on their potential as later friends or business associates. With all this said, it is important to note that there are varying opinions on the appropriateness of posttherapy relationships, and not all posttherapy relationships would be considered harmful or unethical; in fact, some may be unavoidable. It may be useful to use the guidance provided in the Ethics Code Standard 10.08, Sexual Intimacies With Former Therapy Clients/Patients, when contemplating a posttherapy relationship with a client. The implications of sequential relationships have to be considered from both directions. Entering into a social or business relationship after having a therapy relationship has different pitfalls than agreeing to provide therapy to someone the therapist once knew in another way. Again, the depth, length, and other attributes of the former relationship must be considered. Seeing one’s former third-grade teacher for therapy is substantially different than seeing one’s former spouse. Questions to ask when considering taking a client with whom you had a former relationship would center on the potential client’s welfare. These might include the following: ■ ■

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The good work done in therapy can be damaged by later friendships that reveal shortcomings in the therapist or by other relational things going wrong (Kitchener, 2000). Clients may need to return to therapy and may much prefer to see the same therapist. If the therapist has become a friend, this option would not be ethical (Vasquez, 1991). The power differential and the responsibilities associated with it never really end, even though therapy ends. In a one study, the vast majority of mental health professionals surveyed indicated they believed in client perpetuity, or “once a client, always a client” (Lamb et al., 2004).

Professionals who entertain the idea of posttherapy relationships with clients may unconsciously treat

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Did the former relationship end well? Is there positive or negative baggage from that relationship that will hinder therapy? Is there a chance the therapy relationship will cause some kind of rejuvenation of the former relationship? Will the therapy relationship be informed by the former relationship? Can you stay objective and focused on the therapy relationship without allowing the other relationship to intrude? By using informed consent and good communication, is there a way to include the former relationship in the therapy work at hand?

This is only a partial list of questions, and none of them has an answer that instantly gives a green or red light for agreeing to a therapy relationship. Asking such questions simply underlines the fact that former relationships are likely to have an impact on the therapy relationship. It is the therapist’s professional responsibility to consider the consequences beforehand and to manage them therapeutically during the relationship. 255

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Nonprofessional contact outside therapy. A boundary closely related to self-disclosure and to various forms of multiple relationships is that of nonprofessional contact outside the therapy session. Although not specifically mentioned in the Ethics Code, other codes include this potential boundary in their ethical guidance (American Counseling Association, 2005). It is true that therapists are often invited to weddings, funerals, piano recitals, basketball games, celebration dinners, and so on, simply because of the therapy relationship and the client’s wish to include the therapist in these life events. It is also true that this raises ethical concerns, both from specific codes and at the principle level. For instance, by attending the event, you stand the chance of being asked how you know the client or even of being introduced as the therapist. Even if a good informed consent conversation has addressed the confidentiality issues, such public exposure may not turn out to be in the client’s best interest. Furthermore, from a justice perspective, if you agree to go to one client’s wedding, to be fair should you go to all? In smaller communities, nonprofessional contact is virtually unavoidable. The question is less about how to avoid nonprofessional contact and more about how to manage such contacts and relationship overlaps in ethical, healthy, and compassionate ways. Therefore, this particular area is presented in a bit more detail in the next section. The actions, attitudes, and ongoing management required by professionals in small communities serve as thought-provoking material for those in urban areas who have the luxury of greater physical and social distance from others. The following section is intended to focus on multiple and sequential roles, as well as nonprofessional contact, in the context of smaller communities, whether open or closed, and rural or frontier settings. Ethical concerns faced by psychologists in institutions are covered in Chapter 5 of this volume. Rural and small community concerns. It is difficult for urban professionals to fully appreciate the ethical challenges faced by professionals living and working in small towns and communities. Literature, myth, and media sometimes romanticize small towns and rural, agricultural life, but this life is replete with potential for restrictions on personal 256

development, narrowness, and lack of boundaries. The Rev. Vernon C. McGee is reported to have said, “Man made the city, God made the country, but the devil made the small town” (2004, p. 48). Research repeatedly has revealed the challenges, deprivations, and harsh realities of rural life in the United States. Depression, alcoholism, heart disease, cancer, diabetes, and arthritis all occur at higher rates in rural communities than in urban communities (Thurston-Hicks, Paine, & Hollifield, 1998; Wagenfeld, Murray, Mohatt, & DeBruyn, 1997). The need for mental health services is acute, and the problems inherent in rural work are complex (Jameson & Blank, 2007). Even maintaining confidentiality becomes nearly impossible when anyone on the street recognizes who is entering the office building where the psychologist works, the client buys groceries at the same grocery story as the psychologist (and it is the only one in town), and the bartender at the favorite bar in town knows seven clients seeing the same psychologist and all seven patrons enjoy telling him about their therapy. Often, those working with rural patients and clients believe that these clients worry about confidentiality and privacy and are thus less likely to talk openly about all areas of their lives (Warner et al., 2005). In rural and small communities, multiple relationships, sequential relationships, and nonprofessional contact outside therapy between psychologists and their clients are unavoidable (Schank & Skovholt, 1997). Therefore, ethically “forbidding” such roles and contact is unrealistic and harmful to all concerned (Brownlee, 1996). Instead, realistic training and a balanced approach are needed. In one small study, rural and frontier professionals expressed a clear need for ethical training specifically tailored to nonurban settings (Roberts, Warner, & Hammond, 2005). However, the Ethics Code is written in a way that implies potential damage to the psychologist as well as to the client, should a multiple or sequential relationship prove to be troublesome. Elsewhere, I have noted that multiple-role restrictions can place a heavy and sometimes damaging burden on mental health professionals in small communities (R. Sommers-Flanagan & Sommers-Flanagan, 2007). Psychologists need social contact, groceries, medical care, legal services, educational and recreational

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opportunities for their children, occasional help with plumbing and housekeeping, intellectual stimulation, and so on. These needs do not constitute an excuse for unethical behavior but argue for a more sophisticated and nuanced set of management practices and clinical skills than are sometimes present in training programs. Schank and Skovholt’s book Ethical Practice in Small Communities: Challenges and Rewards for Psychologists (2006) is an excellent source of information in this area. Consider the following case example: Case Example 5 Sarah Smith was a clinical psychologist who specialized in treating youth and adolescents. While on her internship in Portland, Oregon, she met and married Sam Jones. Sam was from a farming family in the Midwest. Sam’s father passed away, so after Sarah’s internship was completed, the couple decided it was best to move to the Midwest and take up farming. Sarah opened her practice in a town of 10,000. At first, all she had to do was make sure her informed consent identified her as Sam’s wife because she had not changed her last name when they married and many people in the community knew Sam’s family, or were related in some way. However, as the years went by, things got more complicated. Sam and Sarah had three children. They attended birthing classes. There were clients there. The children began to take lessons, joined sports teams, and attended the small public school. There were clients in the school, clients on the teams, clients among the junior coaches. As Sarah continued to practice, there were clients at the grocery store, clients at church, clients in the Campfire club, and Sam’s farming products were sold to clients’ parents. The list of potential dual roles for Sarah is endless. To avoid all multiple roles, Sarah would simply have to stop practicing, which would deprive a small community of needed professional services.

For Sarah to function in a healthy, ethical, and effective manner, both professionally and personally, it is likely that she would need to have both the temperament and skills necessary to define and hold some very important boundaries. ■

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Sarah would have a thorough, well-written informed consent policy and would spend extra time helping clients understand confidentiality— especially the fact that she will not tell her family anything about the work she does with clients and she will not tell clients about other clients. She would use examples to help her young clients understand how this works. Sarah would also explain to her clients that she would allow them to greet her first, if they wanted to, when seeing each other in public. She would carefully explain that she would not initiate the greeting in order to allow them to say hello or not, to give them control, and to preserve their privacy. Sarah would be gentle but firm when clients approached her in public and tried to talk about therapy issues. She would explain to them that their public relationship was very different from their therapy relationship and that she could not talk to clients about therapy when in public. Sarah would warn her clients that they would probably see each other in public. She would tell them directly if they were on the same team or in the same group as one of Sarah’s family members. She would assure them she would never reveal the therapy relationship. Sarah would tell clients that it was okay to talk in therapy about how it felt to see one’s therapist at the swimming pool, at the band concert, or wherever. She would also tell them that she would check in with them about this occasionally. She would explain that because it was a small community, she could not help but know some things about them. She would explain that she would level with them about what she knew unless it had come from another client. She would give examples: “So, Josh, if I happen to be at a game, and you score a touch-down, or slug a ref, I won’t pretend I don’t know. We might talk about it in here. Does that make sense?” 257

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Sarah would have educated her family about her work and the ethical and professional mandates for confidentiality. Her children and husband would not ask to be introduced to someone who greeted Sarah, and they would never ask her how she knew someone. Sarah would have the option of creating an online supervision–consultation group made up of professionals from graduate school, professionals she met at postgraduate trainings, and professional she encountered at state psychological meetings. They could have a virtual meeting twice a month and thus stay in touch on a regular basis. Sarah would take time to mentally compartmentalize what she heard from her clients about others in the community. She would be able, for the most part, to keep what she heard contained. She would, of course, be disappointed to know that the mayor was having an affair with her client’s mother. She might be impressed to know that her neighbor hired young people to do yard work and paid a very generous salary. But Sarah would take exceptional, ongoing care to keep this information separate from her day-to-day interactions in the community. She would realize she was a psychologist, not a pastor, a police officer, a politician, or a moral authority, and most important, she would not engage in gossip. Sarah most likely would be thankful that she had been able to find friends with similar interests, such as hiking and knitting. She would have a few close friends, and for her own sanity, she would be clear that she would not agree to work with family members of these friends.

Rural regions are not the only context for the formation of small, even intimate, communities. There are many other forms of small, connected communities of people, such as the gay, lesbian, transgendered, and bisexual community (Kessler & Waehler, 2005; Silverstein, 2007), military bases and embedded positions in combat (Johnson, Ralph, & Johnson, 2005), spiritual or religious communities (Gallardo, Johnson, Parham, & Carter, 2009; Gonsiorek, Richards, Pargament, & McMinn, 2009), athletes served by sports psychologists (Moore, 2003), academics, 258

and small culturally determined enclaves within larger urban areas (Gallardo et al., 2009). It has been claimed that membership by the psychologist in these communities can sometimes increase trust in the professional (Johnson et al., 2005; Lazarus, 2005; Robinson, 2003), but the boundary understandings and management require extra professional attention and care. Although the challenges and parameters of each of these communities cannot be detailed here, this chapter looks more closely at the challenges of embedded military psychologists and the many layers of boundary considerations faced by gay, lesbian, and transgendered therapists. (More information on related institutional matters is addressed in Chapter 5 of this volume.) The role demands of the psychologist in the military are multifaceted, convoluted, and sometimes even contradictory. And this is true in the best of times. Add the drama, intensity, and intimacy of being an embedded soldier in a combat zone or having the wrenching task of advising or being present for interrogations, or the duty to provide some kind of psychological care to prisoners of war (Kennedy, Malone, & Franks, 2009) and one begins to glimpse the magnitude of the conflicts. Of course, even under these difficult circumstances, psychologists are ethically bound to uphold basic human rights and are not free to participate in interrogation of a client or potential client. Johnson et al. (2005) provided an overview and thoughtful ethical guidance for embedded military psychologists. They noted that these professionals face clinical and duty-based boundary challenges at every turn. For instance, consider these points: The psychologist is by definition holding multiple role duties with every client; frequent and close personal contact is a given (sometimes in the most intimate ways, such as needing to urinate in a cup while your client stands by to take the urine for random mandatory drug-testing); as a commissioned officer, the psychologist’s duty to the client is trumped by the duty to the mission, but at the same time, the psychologist’s duty is to provide services to those in the unit, which will include colleagues, friends, and even supervisors. Johnson et al. (2005) offered excellent case examples and concluded with thoughtful guidance for maintaining an ethical balance in handling the

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competing role demands and daily boundary crossings. Here is a paraphrase of their list: ■

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Preserve as neutral an identity as possible, avoiding significant self-disclosures. Assume that every person in the unit is a future client. Develop and provide a comprehensive and specific informed consent form. Be clear and as strict as possible in handling need-to-know policy demands. Create an outside consultation group or other means to have consistent outside support and input. Work on tolerance and flexibility in handling unavoidable boundary crossings. Find as comfortable a balance as possible between the realities of the therapeutic demands and the ethical principles and guidelines regarding boundaries. Clinically, collaborate directly with clients about managing the many intersecting role demands and boundaries. Keep excellent and detailed records of the clinical management of the multiple roles.

Many of the guidelines offered for handling the boundary concerns of embedded military psychologists are helpful for professionals working in other small community contexts. Although not operating in a closed, legally defined community, gay and lesbian professionals also face very intricate boundary considerations (Rees-Turyn, 2007; Silverstein, 2007). There are pressures toward activism and significant safety and clinical considerations in choosing whether to be out, closeted, or some selected blend of both. These dilemmas are compounded in environments in which homosexuality is forbidden or condemned, such as in the U.S. military or within certain religious communities (Johnson & Buhrke, 2006). Another complication faced by gay and lesbian professionals is the sometimes-essential social connections in the gay community, which have boundary definitions that conflict with professional boundaries. Similar to tiny rural communities, the limits placed on professionals, if strictly observed, could deprive the professional of some aspects of ordinary life.

In a closed community, such as the embedded military, no ethics code could possibly be detailed enough to cover every dilemma. In fact, many might argue this is the case in far less complex situations than tiny rural practices or psychological practices in closed communities. Therefore, it is important to remember that there are other ways to determine and justify moral choices. Johnson et al. (2005) argued that when it is possible to choose, we should select psychologists of high moral character in the context of military service because they will face such ethically demanding boundary situations—and character matters, as Aristotle pointed out. It is also possible to use a principled approach to work through boundary dilemmas, which is illustrated in the section Boundary Considerations in Crisis Situations later in this chapter. General guidance on managing multiple roles and potential multiple roles. Although the previous section covered guidance for settings and situations that have inherent multiple role demands and nonprofessional contact, this section offers more general assistance in sorting out the ethical parameters in this area. Fortunately, and realistically, multiple roles and sequential roles are not expressly forbidden. It is helpful to look again at the actual language of Standard 3.05, Multiple Relationships: (a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person. A psychologist refrains from entering into a multiple relationship if the relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm 259

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to the person with whom the professional relationship exists. Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. (APA, 2010)

to consult before entering into a multiple relationship. In the broadest sense, consider the following four domains when contemplating a multiple relationship or a nonprofessional interaction: ■

In other words, multiple concurrent or sequential relationships are not unethical as long as the professional role is not impeded by loss of objectivity. The client has a right to expect the same level of competence and effectiveness as anyone else could expect. Furthermore, clients are not to be exploited or harmed because of having another relationship with their therapist. The code places the responsibility to determine reasonable levels of safety squarely on the therapist. But the Ethics Code remains silent on exactly how to do this. It is very difficult to determine what might be considered reasonable and to measure objectivity. Writers have offered helpful guidelines. In the article entitled “Managing Risk When Contemplating Multiple Relationships,” Younggren and Gottlieb (2004) offered the following questions to consider: 1. Is entering into a relationship in addition to the professional one necessary, or should I avoid it? 2. Can the dual relationship potentially cause harm to the patient? 3. If harm seems unlikely or avoidable, would the additional relationship prove beneficial? 4. Is there a risk that the dual relationship could disrupt the therapeutic relationship? 5. Can I evaluate this matter objectively? (pp. 256–257) It is not easy to articulate or feel confident about the answers to these questions, and such answers are best sought in the context of a mature consultation group. Ironically, creating and belonging to a mature consultation group is much more challenging for professionals in rural environments—a very good reason to be grateful for the Internet and all the ways professional connections can now be made and maintained. Just because psychologists are working in rural settings does not mean they should act like the Lone Ranger. There are legitimate ways 260

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Outcomes that are potentially harmful to the client, Outcomes that potentially benefit the client, Outcomes that are potentially harmful to the professional, and Outcomes that potentially benefit the professional.

According to R. Sommers-Flanagan and SommersFlanagan (2007), each harm and benefit must then be viewed through the following lenses: How likely is this outcome? How beneficial would it be? How harmful would it be? As mentioned earlier, from a deontological point of view there would be little room for these considerations. It is the duty of the professional to make whatever sacrifices necessary to minimize or eliminate any potential harm to a client. From a utilitarian point of view, however, when one can include context and the relative merits of one set of outcomes over another set of outcomes, the considerations must become more detailed and calibrated. Regardless, such considerations are complex and fraught with the potential for professional self-deception or rationalization, so Aristotle would urge consultation with someone of high moral character with the appropriate level of training and experience before making a decision. Finances and bartering. One marker that firmly signals the professional nature of the therapy relationship is that the therapist is paid to engage in the relationship, and in most circumstances, the client is expected to pay for the services rendered. With insurance policies varying in coverage, with agencies sometimes providing mental health services to designated populations, and with government programs providing for therapy, clients sometimes do not have the experience of directly paying the therapist. However the financial arrangements vary, they still constitute one of the boundaries psychologists must consider from an ethical standpoint. A summary of Section 6.04 of the Ethics Code guides professionals to be very clear at the beginning

Boundaries, Roles, and the Professional Relationship

of the professional relationship about fees and billing practices. Our fees need to be straightforward and legal, and if our client’s financial status changes and makes fees a hardship, we need to address it directly and in a timely way. In our culture, some have observed that it is easier to talk about our sex lives than our financial lives. Even highly skilled psychotherapists may find it challenging to talk about finances in a manner that seems natural and therapeutic, but that is exactly what we should strive for. It helps to have financial practices and policies clearly written in the therapist’s informed consent form. If you have a policy of using collection agencies to pursue outstanding client bills, it is wise to have this in your written paperwork as well as to go over this verbally with your clients and record that you did so. Sliding fees are not directly discussed in the Ethics Code, but the fact that we are supposed to charge our fees in a legal manner indirectly speaks to the sliding fee and its inherent difficulties. The concept of a sliding fee is that professionals link their fees to their clients’ incomes. This is certainly a morally praiseworthy effort to provide services that are more affordable to clients in need. However, there are many dynamics and practicalities to consider when putting this practice in place. Having a sliding fee scale requires a significant self-disclosure from the client (his or her income level) before the therapy relationship has developed. It also opens the door for little white lies about income, size of household, and so on or for outright client deception. Although some practitioners request copies of pay stubs and other documents to verify income level, this verification process adds another dimension to the therapy relationship. Sliding fees may not be an option, and professionals can engage in only a certain amount of pro bono work. Because the provision of therapy and related psychological services is based on a fee for service, it is not a boundary crossing for the therapist to discontinue therapy if the client will not or cannot continue to pay. The Ethics Code, however, guides the therapist to try and assist the client in locating other services in pretermination therapy. Bartering is an ancient practice of exchanging goods or services directly, rather than using money. (More information on dealing with business practices

is covered in Chapter 17 of this volume.) It is still a common practice in many cultures and communities. After dealing with concerns of the Internal Revenue Service (IRS)—you have to report your income, and the IRS does not allow you to report loaves of bread, so you have to determine a monetary value to report—bartering can seem like a relatively straightforward arrangement. Trading a loaf of homemade bread for some leaf raking might have a good result. However, there is no neutral force or party determining how big the loaf should be or how thorough the raking should be to make the exchange fair. This is left to the parties to work out directly and may have relationship implications. This should ring a small bell of concern for professionals whose work directly and deeply involves relationships. The Ethics Code allows bartering only if there are no obvious clinical pitfalls or problems and only if the bartering does not end up exploiting the client. These are significant guidelines. If bartering involves the client providing services, the therapist is suddenly in a multiple relationship: therapist and employer. To ensure that the client is not exploited, the therapist may need to seek outside assessment of the artwork, food, wine, gems, tickets, and so on. Doing so could lead to a break in confidentiality unless the practitioner explicitly makes this process clear and the client freely agrees to the disclosure. Cultural or financial factors may lead a therapist to agree to a bartering arrangement. Many of us are glad both that bartering is not forbidden and that strict limits protect the clinical relationship and the client directly. One last dimension of finances and boundaries has to do with the therapist selling therapeutic items to clients. These items might include books, audio materials, light boxes, or other treatment-related products. Although not strictly forbidden, it could be argued that such transactions run dangerously close to exploitation if the therapist profits from the sale of such items. Similar concerns have been noted in the case of physicians selling products. A number of factors should be considered, including the urgency of the client’s needs, the clinical relevance and efficacy of the product, and time or other constraints that limit the client’s opportunity to obtain the product elsewhere. Also, it is important to provide clients with full disclosure of one’s financial gain, and 261

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charges should be in the realm of reasonable costs incurred in making the product available (Povar & Snyder, 1999). Bartering and other financial considerations are covered in Chapter 17 of this volume. Time management. It has been said that time is money. People speak of “spending” time and ask each other for time, acknowledging the fact that this dimension of life has great value. In some ways, time is far more precious than any other resource we might manage in our lives. We cannot stop the flow of time, and we have very little control over how much time we have on this earth. In the dominant culture in the United States, time is seen as linear, and we dole out our days in discrete, defined segments, often crammed as full as we can possibly make them. In this context, time is a boundary of no small consequence. Most clients will notice the boundary crossing of giving them even slightly less or more than the agreed-on therapy time. Also, therapists from lineartime cultures likely will interpret late or early time behaviors as important behavioral communications from their clients. Generally, arriving late is disrespectful in our culture. It also might be seen as resistance to treatment. The competent therapist will not leap to these assumptions but will explore cultural and other factors in seeking to understand punctuality or lack thereof. This is more in the realm of clinical than ethical, but there is obvious crossover. Regardless, lack of accountability and punctuality on the part of the therapist is a boundary crossing that left unaddressed becomes a boundary violation. Being late to start a therapy session, ending it early, or failing to be there altogether is negligent and disrespectful. If psychologists notice a pattern in their own behavior, with time violations becoming more frequent, either generally, or with certain clients, supervision and consultation are necessary to explore possible reasons and seek effective ways to change. Because of the importance of time in our lives, the gift of time is a significant one. Therapists who allow sessions to run overtime, giving clients an extra 5 or 10 minutes, may believe this is a benign or benevolent act with only good consequences. However, this is a boundary crossing. Assuming the client 262

is paying $125.00 for the 50-minute hour, each minute is valued at $2.50. Few therapists would routinely hand their clients a $10.00 or $20.00 bill without realizing such an act had boundary consequences. Considering time as a boundary and extra time as a gift, it is easy to see how session extensions are sometimes listed as grooming behaviors to be wary of. Just as being late or shorting clients on their therapy time is likely to be seen as disregard for the client, giving extra time to a client is likely to be seen as positive regard—even communicating special status to a client. The basic principles of fidelity and justice argue against a casual crossing of this boundary, especially from a deontological view. The therapist’s duty is to be fair and equitable—to provide the same level of care and service to very likeable, attractive clients as to very unpleasant or even abrasive clients. Of course, some circumstances allow for the occasional time extension, especially if it arises from a predetermined policy and is given on the basis of an evenly applied set of criteria. Emergencies, crises, or other compelling events can justify extending the time boundaries. As with any boundary extension, however, the therapist should be able to articulate the reason for the extension and handle the potential clinical and ethical implications wisely. Dress, office décor, and office setting. In graduate school, a fellow student was accosted by a clinical professor in the hallway of the training clinic. From an uncomfortably close distance the professor told my colleague, “Let’s dress it up a bit, eh?” As my colleague tells the story, even finger-shaking was involved. My colleague was dressed in her workout clothes and not scheduled to see a client, but that did not really matter. She was a psychologist in training, and she was in the clinic. Her dress did not reflect her role. Case closed. The way we care for and clothe our bodies, do our hair (or struggle with the lack thereof), furnish our offices, and even transport ourselves communicates volumes about us. Human creativity and individuality is limitless. In contrast, human awareness of the messages thus sent may be quite limited. Taste and style are not generally thought of as hot ethical

Boundaries, Roles, and the Professional Relationship

issues. Even if a given psychologist is known for dressing shabbily, if this is a consistent choice that does not seem designed to devalue only certain clients, then wardrobe choices may not rise to the level of a boundary consideration. On the other hand, dress communicates respect, both for oneself and for one’s work. It also can insinuate age, status, group affiliation, and cultural and religious memberships. In a way, our presentation can be seen as part of our informed consent process. Adult clients seeing us voluntarily can size up the office décor as well as our jewelry, clothing, hairstyle, and whiteness of teeth and thus make an informed choice that includes these messages. Boundary problems arise if we begin to treat clients differently for our own purposes—such as provocative dress to flirt with an attractive client or slovenly dress because we have less respect or admiration for a certain client. There are also boundary considerations for psychologists who work in agency settings or with clients who have no choice in therapists. Psychologists in such settings face the challenge of dressing and decorating their offices in ways that signal basic respect while at the same time allowing for individual and authentic expressions of taste. Our offices and waiting rooms are part of our overall presentation and provide literal boundaries around the therapy session. The office located in the home, a setting so fondly depicted in popular movies and other media, has a particular set of boundary challenges in that by having the office there, quite a bit of information is immediately available to the client. In some literature, serious challenges have been noted in managing a home office ethically (Maroda, 2007). A home office constitutes significant selfdisclosure on the part of the therapist. Obviously, these clients know where their therapist lives. They also might come to know the pattern of family members coming and going in the driveway and share small “home” experiences, such as the smell of something cooking wafting through the house, the noise of the doorbell, the distant ring of someone’s cell phone, a pet barking or chirping, and so on. Having an office in the home is not necessarily a boundary crossing or violation, but it requires awareness and management so that normal domestic events do not intrude into the therapy relationship

(Zur, 2007). The psychologist who has a home office also must be aware of the possible pull toward a social relationship or even a friendship for the client and for the therapist as well. He or she must pay special attention to other related boundaries and work to make the office a confidential, quiet, and professional space. Even if the office is not in the home, the office communicates a great deal to clients. Its cleanliness, the literature on display, the comfort of the furniture, the noise levels, the art work, the photography, the location of clocks, and the general freedom from distractions all deserve conscious attention by the therapist. Each of these constitutes a subtle form of self-disclosure on the part of the therapist. If therapists have pictures of pets, vacations, friends, or family members on display, they are sharing those parts of their lives with clients, insinuating a kind of intimacy that they may or may not intend. If they have gay-friendly, sports, cooking, or religious literature, they are setting certain boundaries— communicating that some subjects, some hobbies, some sexual orientations, or some religious beliefs are more welcome or less welcome. Another dimension to consider in treatment settings is that of non-office-based therapy. Some theoretical orientations, presenting problems, and treatment goals will allow or require therapy outside of the traditional office setting. In fact, in some situations the entire therapy relationship will be defined in ways that include in vivo sessions at the airport, the school, or the marketplace. When undergirded by theoretical and empirical support, such arrangements are not necessarily boundary crossings. They should be clearly articulated techniques and procedures that are enacted with their own defined professional boundaries. However, without the trappings and boundary support provided by the defined space of the office, therapists must be attentive to other boundaries that might seem easier to ignore. In certain circumstances, psychotherapy might be provided in the home of the client (Beeber, Lewis, Cooper, Maxwell, & Sandelowski, 2009; Greeson, Guo, Barth, Hurley, & Sisson, 2009). The therapist is entering the world of the client and will need to consider how to negotiate the rules that will 263

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guide the entire time spent together. What room will be used? How will distractions be managed? How will confidentiality be understood? In one case, a therapist was working with a client in the client’s home. The client had a very aggressive dog that barked at the therapist and made the therapist very uncomfortable. The client laughed at the situation. Obviously, the therapist had some clinical work to do with this client, but in addition, the story illustrates the subtle shift in power in out-of-office work. The therapist simply does not have direct control over the environment and thus has even more responsibility to attend to professional boundaries (Knapp & Slattery, 2004). Providing therapy in the client’s home or workplace is a reversal of the usual pattern wherein the client comes to the therapist. This reversal, as well as the intimacy insinuated by a home visit, can trigger many potential boundary challenges. It is incumbent on the psychologist to educate clients about the expectations and to set an appropriately friendly but professional frame and tone when doing in-home professional work. Knapp and Slattery (2004) covered these issues in detail. Food and drink. Sharing food with clients during sessions, or before or after sessions, is not a common practice among psychologists. Having tea, coffee, or water available in the waiting room is not uncommon, but soft drinks are more rare, and alcoholic beverages, if available in any private practice setting, certainly are not acknowledged or discussed in the literature and would be a boundary crossing for most of us. I served as an ethics consultant on a case involving a therapist doing cocaine with a client during a session, ostensibly to help the client work on her addiction. This is an egregious and hopefully very rare boundary violation, but it serves as a reminder that the human capacity to rationalize one’s actions is enormous and dangerous. Even though sharing food is an uncommon practice, there are reasons therapists might provide a client with food or share food during a session. Young, hungry clients become much more pleasant after a snack (J. Sommers-Flanagan & Sommers-Flanagan, 2007). Clients with certain phobias or forms of eating disorders might have a treatment plan that 264

includes eating or sharing food with the therapist present. Thus, crossing the food boundary might be beneficial to the client, but the purpose should be not to satisfy the therapist’s hunger or need to share a tasty treat but rather to serve the therapy relationship, the treatment plan, and therapy goals. Language. The ability to communicate is a prerequisite for clients seeking help through psychotherapy. Language has a number of boundary considerations. The most obvious are the problems created when the client and the therapist do not speak the same language (Beeber et al., 2009). When an interpreter is necessary, a third person is present in what is essentially a two-person process. This is a clear and essential boundary crossing, but one intended to be beneficial to the client. The therapist must trust the interpreter’s ability to handle the communication back and forth accurately and compassionately. Confidentiality cannot be guaranteed in this situation, but the psychologist needs to ensure that interpreters understand the importance of confidentiality and perhaps involve them directly in the informed consent process. Psychologists working with clients who are immigrants may face the issue of the client’s children being brought to the session to serve as interpreters. This makes the situation even less confidential, and it introduces or increases the dynamic of parentifying children and disempowering the client (Trickett & Jones, 2007). When an interpreter is not necessary but the client is communicating in a second language, it is important to be aware of certain folk phrases or slang that might be unfamiliar to the client (Poyrazli, 2009). Another interesting boundary related to language is in the realm of vocabulary, vernacular, and acceptable jargon or slang. William, an intern in our training program, was working in the student counseling service on campus with a specially designed program to support students who were racial minorities or international students. One of his clients, Rafael, was a very homesick African American freshman, recruited to play on the tennis team. William was making great progress and a strong therapy relationship had developed. Rafael frequently used the “N” word in describing his social connections and related issues. William had the very bad idea to try

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this himself, thinking that it would lead to even greater connection with Rafael. A split-second after William floated that word into the conversation, the room grew very, very still and, by his own account, a thin layer of ice formed on William’s desk. He was able to recognize he had drastically misjudged the effect of using this word, so he apologized and recovered. Language can be a boundary signal. Certain words and phrases indicate or assert membership in cultures and subcultures. Knowing the meaning of the words or phrases is very helpful for the therapist. However, attempting to use them may backfire. Acceptable levels of profanity, slang, or even fivesyllable words must be determined by the setting, the personalities of both client and therapist, and theoretical orientation. Gifts. Psychologists strive to be fair, respectful of every client, unbiased, and devoted to their clients’ welfare. What harm might come from accepting or giving the occasional gift? Because gifts potentially can influence the therapist and the therapy process, most ethics texts (Welfel, 2006) caution against accepting large gifts. Researchers and writers have offered guidance and insight into gift-receiving behaviors for many decades. A large survey of mental health professionals (Borys & Pope, 1989) found that 45% of the respondents believed there was ethical justification for accepting gifts that were valued at less than $10.00. However, 45% also agreed that it would not be ethical to accept a gift valued at more than $50.00. Correcting these figures for inflation might lead some psychologists to raise the acceptable value to $20.00, raising the unacceptable cutoff accordingly. Factors such as the value of the gift, the meaning behind the gift, the timing of the gift, and the cultural meaning of gift giving are all important to consider and have received at least some research attention (Brown & Trangsrud, 2008). It is more common for clients to offer gifts to their therapists than for therapists to offer gifts to clients. However, either direction must be consciously considered and usually processed with the client (Smolar, 2002). It is important to have a general policy and to have this stated in the informed

consent forms and processes. Clients may ignore this policy, but at least it provides a starting point for the therapy discussion. The type of gift and its meaning, both in the culture and to the client, offer the potential for therapy work and insight. Even though both might be valued less than $10.00, there is a vast difference between the gift of a jock strap and the gift of an apple pie. Most would probably rather receive and explore the possible meanings associated with the apple pie, but even a pie deserves a bit of therapeutic exploration. Larger gifts have even more potential ethical ramifications (R. Sommers-Flanagan & SommersFlanagan, 2007). Consider these possibilities: ■

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The large gift could be something you’ve wished for and very much value. Accepting it could lead to a slight loss of objectivity. The large gift could be something you find quite unappealing, strange, or even offensive. What do you say? Without a clear policy, you might find yourself being dishonest or forced to accept the gift, even though it feels wrong to do so. The large gift could be a piece of art, which the client expects you to display in your office. The large gift could involve attending a sports or community event—possibly even with your client.

Another problem with accepting gifts is that therapy does not always go well or end well. If things take a difficult turn in the therapeutic relationship, your client might request that you give the gift back or provide reimbursement. It is easy to understand why psychologists might simply decide to have a firm and consistent no-gift policy. To do so, however, sidesteps cultural and therapeutic considerations that might be of great help to your client and the therapy process. Similar to handling other boundary crossings, exploring the gift-giving process can provide opportunities for insight and growth (Hahn, 1998). As psychologists have become more culturally sensitive, it has become clear that gift giving and receiving have many cultural meanings to consider. For instance, for many American Indian tribes, the act of giving is a sacred privilege and is an act of honor toward the recipient (Herring, 1996). At powwows 265

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and other gatherings, there are gifting ceremonies that involve many rituals and expectations for both the gift givers and the gift receivers. In Asian cultures, gifts can signal respect, serving as a specific and appropriate means to express gratitude (Cuellar & Paniagua, 2000). Exploring the meanings and intentions of gifts and gift giving can deepen the therapeutic relationship and increase the therapist’s understanding of the client’s culture. Children and adolescents deserve special consideration in gift-giving practices. Often, they bring artwork; homemade jewelry; or other small, meaningful offerings. Turning down such gifts might risk harming the therapy relationship (J. Sommers-Flanagan & Sommers-Flanagan, 2007). If accepted, however, it is important to consider how the gift might be displayed, stored, or even returned for therapeutic reasons. For instance, depending on setting and theoretical orientation, the therapist might have a practice of displaying artwork for a short time and then storing or returning it to the young artist. Though less common, psychologists might find themselves considering giving a client a gift. Concerns to consider include the insinuation of specialness or intimacy and the break in impartiality. Are you willing, and is it possible, to give gifts to all clients in similar circumstances? From a deontological perspective, it is our duty to be fair and impartial, and from a utilitarian perspective, we need to consider actions in terms of the greatest good for the greatest number. The complexities of gift giving and culturally varied meanings provide an example of how ethical boundary considerations interact directly with clinical concerns. Social, spiritual, political, cultural, or cyberspace connections. Although closely related to the concerns raised about multiple roles and nonprofessional contact, memberships in meaningful communities of like-minded individuals present a few unique boundary challenges. Chapter 10 of this volume covers religion in psychotherapy, covering general standards that psychologists should consider when deciding whether to integrate religious practices, such as prayer, Bible or Koran readings, or meditations, into psychotherapy sessions. It is possible to share political, spiritual, or religious memberships without 266

actually interacting in ways that would be considered multiple roles, and it is possible to have connections that are disembodied and one dimensional. For example, activism around a certain cause can identify either client, therapist, or both in a public way that may set in motion dynamics that play out in therapy (Flanagan & Sommers, 1986; Silverstein, 2007). Similarly, membership in a political party, spiritual group, or culture insinuates a set of values and beliefs that may or may not be true of any given individual. Here are some potential situations that illustrate these points of connection. ■

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A client is a devout Catholic and sees her psychologist’s name in the public sphere connected to supporting a woman’s right to choose an abortion. A psychologist is a third-generation Japanese American and his client has chosen him, assuming he will understand her concerns as a Japanese exchange student. A psychologist writes a letter that is published online in a national newspaper. This letter supports getting out of Afghanistan quickly. The psychologist’s client, the wife of a soldier currently deployed, reads the letter. A psychologist is on Facebook. She receives a friend request from her client. A psychologist conducts a Google search of her client and finds that he has a series of online articles advocating for the rights of children to have “consensual” sex with adults. A psychologist is a homosexual therapist who has published professional material that gives the reader a clear sense that he is out, but he is not out to his clients. His client comes across the writing.

Just as it is not necessary for the therapist to have been depressed to treat clients who are depressed, it is not necessary for clients and therapists to share the same sexual orientation or the same political, religious, spiritual, or cultural backgrounds or beliefs. The reality, however, is that we live in a polarized political climate, and some religions or cultures have core tenets that demand a general distrust of outsiders and, in some cases, a condemnation of other ways of being. Sometimes, the intensity of the beliefs

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or the depths of the values will be such that effective therapy is difficult. However, the majority of such differences are not so powerfully divergent. It is not possible to conduct value-free psychotherapy or to teach in a value-free manner (Tjeltveit, 1999), but it is often possible to bracket one’s values in a way that allows the professional relationship to be effective and helpful (Hays, 2008). Psychologists must be aware of the potential for unconscious or even overt imposition of their values onto their clients. Unless such matters are an openly stated part of the therapy, client autonomy to choose their own life paths, political parties, partners, recycling habits, and so on must always be respected. The self-disclosures involved in Facebook membership, letters to editors, blogs, political activism, professional publishing, and so on should be recognized and calibrated into each professional’s life. In the informed consent process, wise psychologists will spell out their policies and practices about cell phone messages, texting, e-mail, Facebook invitations, and whatever other technological boundaries might exist. Furthermore, given the many ways people can find themselves identified on the Internet, it is a good idea to search the Internet for oneself and one’s family members occasionally, just to be aware of what is available in the public domain (Zur, 2007). Although certainly not exhaustive, I hope that this section has given a sense of the saliency of boundaries in providing effective, safe, and ethical psychotherapy. The next section explores a particularly demanding context for both ethical and effective psychotherapy and related forms of helping. Using the lens of ethical principles, this next section elucidates ethics and boundaries in the compelling work of volunteering in disaster relief and crisis situations.

Boundary Considerations in Crisis Situations Human tragedy always has been part of the human condition, but never have humans been as quickly and graphically informed of tragedy as we are in the 21st century. From human-caused situations such as wars, mass shootings, and accidents to sweeping natural disasters, millions of people can access information even while the tragedy is still occurring. Psychologists and other mental health professionals

increasingly have sought ways to offer assistance to those affected by, and coping with, such disasters. Crisis situations are compelling events, often filling all involved with nearly overwhelming vicissitudes of emotion. The urge to be of help comingles with dismay and even revulsion. In such circumstances, certain boundaries will be altered while others need to be even more strictly observed than in day-to-day work. The content of this section is significantly informed by earlier writings (R. Sommers-Flanagan, 2007; R. Sommers-Flanagan & Sommers-Flanagan, 2007), but it is shaped specifically for what one might think of as metaboundary considerations. Some forms of therapy, professional behaviors, attitudes, and demeanor do more harm than good in crisis situations (Chiang, Lu, & Wear, 2005). In crisis situations, people often become narrowly focused on survival. They have endured, or are enduring, traumatic events and losses and are especially vulnerable in many ways. Their general coping abilities might be diminished (Fullerton & Ursano, 2005). The costs of physical and psychological survival are high, and the last thing needed is ineffective or iatrogenic help. Harmful interventions in crisis and the aftermath can take many forms (Chiang et al., 2005). Psychologists might be affected by the crisis in such a way that they temporarily suspend their cultural sensitivity and demand that victims behave according to the professional’s rules or see the world the way the professional wants them to see it. It is also possible for professionals to be attracted to crisis work for less than healthy reasons, such as the allure of the drama, or the wish to escape the tedium of their lives, or simply to travel and feel important. Finally, even seasoned psychologists can underestimate the effects the crisis exposure will have on them, thus adding another casualty to the crisis and a resulting burden on the recovery process (Gladding, 2002; Motta, Chirichella, Maus, & Lombardo, 2004). Consider the following examples. Case Example 6 Dr. Davis arrived to do volunteer grief and trauma therapy 2 days after a school bus carrying 30 students crashed into a truck on the way home from a sports 267

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event. Twenty students died. They all attended a small religious school in a suburb of a large town 50 miles from Dr. Davis’s home. Dr. Davis found the repeated mention of “God’s will” increasingly irritating, and she found herself viewing these faith-based statements as primitive defenses. She began to think that the accident might turn out to be something that helped at least some of these people to face the realities of life in a new way. Case Example 7 Dr. Horton was a recently divorced 40-year-old who had never done much but carry a heavy client load in his independent practice and play city league soccer for recreation. When he heard about a colleague who was going to volunteer after a hurricane had destroyed a large urban area, he decided to go along for the adventure of it. After arriving, he was happy to have living quarters and a set of suggested helping tasks, but he found himself more interested in looking at the amazing devastation and the intriguing tropical landscape than in talking with survivors. Case Example 8 Dr. Chu volunteered to help after an earthquake had utterly wiped out a huge portion of a city and surrounding villages. He spoke the language of the country in which the disaster occurred and felt compelled to try and help. He contacted a relief agency, which provided him with a short orientation and then flew him into the country, providing him with a place to stay and emergency food rations for 2 weeks. Dr. Chu was housed close enough to the rubble that he could smell the odors of rotting flesh. After the first night, he could not sleep, could not eat, and found himself almost dissociating as he tried to listen to the griefstricken and traumatized survivors. 268

Each of these hypothetical case examples has serious boundary problems. In the next section, I consider them in light of the principles from the Ethics Code, seeking to allow the principles to guide professional ethical behavior in demanding, unstable, or unpredictable situations.

Using the APA Ethical Principles to Guide Crisis Work Psychologists volunteering in crisis situations are obligated to the Ethics Code. The code has general, but not specific, applicability to crisis work. When volunteering for organizations that have codes of conduct, such as the Code of Conduct for the International Red Cross and Red Crescent (International Federation of Red Cross and Red Crescent Societies and the ICRC, n.d.) the professional becomes obligated to uphold the additional code as well. The relationship between helper and survivor can seem less professional because it might involve voluntary (uncompensated) professional work and clients who have very few choices in their lives because of the disaster or crisis. However, for psychologists volunteering as psychologists, professional boundaries should be firmly in place (APA, 2008). When considering engaging in crisis work, mental health professionals have many dynamics to assess. A principle-based approach to ethical decision making is more conceptual than a list of dos and don’ts. Furthermore, the principles overlap in meaning and application. The following concerns are detailed according to the dominant principle in play, but you will see that connections exist between the actions and different principles that might argue for listing the concern under a different principle. This will be true as you try to apply principle-based guidance to any ethical decision making you might face as you strive to develop and uphold healthy professional boundaries. Principle A, Beneficence and Nonmaleficence. Principle A is really two principles, so each will be considered separately. Beneficence refers to promoting good for others, not allowing one’s own selfinterest to override. It might seem that volunteering to help in a crisis situation is by definition beneficent. However, nothing is ever that straightforward.

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Motives, skill levels, and the ability to take care of oneself all interact with beneficent work. Motives. Assessing our motives for helping is a challenging assignment, even in ordinary conditions. Of course, in offering therapy in crisis situations, the dominant motive should be a desire to be of help. Other motives that might be in play include selfaggrandizing, a wish to add some interest to one’s life, a desire to express outrage or indignation at the unfairness of the disaster or the horrid motives of the perpetrators, or an unspoken hope to impose one’s perceived higher values or beliefs on vulnerable people. Having any of these motives as a predominant force in choosing to help is a violation of the core boundaries protecting any professional relationship. Necessary skills. To be of effective professional help, training, supervision, and extra readings or coursework most likely will be necessary (Smith, 2002). Although the training involved in becoming a psychologist is long and broad, it often does not include specialized training in crisis work. Beneficent professional interventions are based on adequate preparation and knowledge of best practices. Specific knowledge about the psychological aspects of trauma and crisis reactions is essential, and advanced skills are required to help survivors work through their losses and experiences and begin to integrate these into their lives (Collins & Collins, 2005). Self-care. We have long known that crisis workers can be traumatized by trying to help those devastated by trauma and crises (Pearlman & Mac Ian, 1995). A boundary that may seem quite obvious is that psychologists do not use their clients, or the resources intended for their clients, for their own self-care or betterment. Professional volunteers must monitor themselves so that they do not become so traumatized that the help they offer is ineffective or even damaging. (More information on self-care is found in Chapter 7 of this volume.) Let us now consider nonmaleficence. Upholding the principle of nonmaleficence means doing no unjustified harm. The potential for harm is exceptionally high in crisis situations. People are disoriented, and normal delivery systems might be disrupted or damaged. Every resource—physical, social, spiritual, and psychological—is precious. Using any of these resources while having little or nothing to offer is a

passive form of harm. However, active harm in the form of misapplication of professional skills or authority is much more damaging (Smith, 2006). Case conception and diagnosis. The empirical and theoretical battles over personal attributes that contribute to trauma reactions or resiliency are beyond this chapter. However, it is clear that people react and adapt to trauma in individually and culturally diverse ways. Some coping methods might seem more adaptive than others to a psychologist trained within the mores of Western culture. In most situations, a small subset of survivors may develop symptoms that fit a mental health diagnosis, but many will not (Caffo & Belaise, 2005). Even the act of diagnosing could be seen as harmful because it may insinuate the survivor is weak, permanently damaged, or mentally ill (Yehuda & Bierer, 2005). Diagnosing also can create an identity as a sick individual, bringing on further symptoms in a selffulfilling prophecy (Violanti, 2000). Cultural concerns. Even volunteering to help with a crisis within your own country can pose cultural challenges. From city to city, and state to state, people who are not part of a defined community are not likely to understand community customs or the deeper concerns of race or culture within the community (Jackson & Cook, 1999). Outsiders can make mistakes by bringing their own assumptions of similarity with them, thereby seeming clueless or insensitive, misunderstanding signals of distress, fear, or even strength. Multicultural awareness and competence is now expected of all mental health professionals (Hays, 2008) and is related to all the principles in the Ethics Code. Hopefully, the basics are in place through graduate training, but being culturally aware and informed is a lifelong task. Under ordinary circumstances, psychologists have time to research, get supervision, and utilize cultural gatekeepers to add knowledge about an unfamiliar community or culture. In crisis situations, there may be little time for this background work. An online article entitled “Developing Cultural Competence in Disaster Mental Health Programs,” provided by the U.S. Department of Health and Human Services, is helpful for both volunteer professionals and those assembling the necessary services in the given locale (Athey & Moody-Williams, 2003). 269

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An additional challenge in cultural sensitivity is that trauma and crisis generates a search for meaning in the survivors (Herman, 1992), and this meaning is culturally embedded (Eagle, 2005), thus requiring great caution on the part of the professional. Professionals volunteering in an unfamiliar culture could easily fail to recognize cultural norms and beliefs about psychological distress and the relative stigma attached to various patterns of symptom expression (Shinfuku, 2005). This failure could lead to diminished social support, which could be quite harmful for the survivor. Principles B and C, Fidelity, Responsibility, and Integrity. In boundary considerations in crisis and trauma work, fidelity, responsibility, and integrity are all closely related. Fidelity speaks to professional loyalty, dependability, and trustworthiness. The concept of responsibility simply underlines the folk assertion “the buck stops here.” The professional is responsible for the relationship and holds responsibility to the community and society as well. Integrity has to do with honesty and reliability. Psychologists are expected to provide services and care that do not promise more than actually can be delivered. In volunteering across cultures in disaster situations, these are all especially important duties. Depending on the nature of the crisis and situation, many customary practices that help establish professional boundaries may be altered or suspended. The informed consent process may be reduced from well-written forms and thoughtful questions and answers to a short verbal exchange providing the essential parameters of therapy. It may even disappear entirely. Expectations of confidentiality may have to be limited due to makeshift settings, such as tents, warehouses, retail outlets, schools, or churches. Psychologists may not be able to keep detailed notes or any at all. All of these changes can make the professional boundary seem weak, artificial, or frayed. Furthermore, if the crisis is ongoing, or the aftermath has significant threat or devastation, the professional and the client are experiencing the same difficult threats, which add to the difficulty of establishing and maintaining an appropriate therapeutic distance (Benyakar & Collazo, 2005). 270

The survivors of disaster or trauma are often not in a position to protect themselves from exploitation, and sometimes systems designed to provide that protection are also damaged. Aid workers of any background have enormous ethical duties in the realm of fidelity, integrity, and justice. One test of morality is how people choose to behave when no one is looking and no one will know. In crisis situations, the chaos is such that accountability is sometimes obscured. When this is combined with the heightened emotions and vulnerabilities of disasters, boundaries can be damaged at many levels. One particularly important area is that of intimacy. High levels of stress and shared outrage or misery can lead to the formation of very strong emotional bonds. These bonds can be misinterpreted by both the professional and the client (Weaver, 1995). In the compelling frame of crisis work, ethical psychologists must maintain absolutely unambiguous professional boundaries, knowing that they may find themselves the love objects of some crisis survivors and the hate objects of others (R. SommersFlanagan, 2007). Principle D, Justice. The principle of justice implies that psychologists will work to ensure that what they have to offer is equally available to those seeking services. Furthermore, they will work against unjust practices or applications of psychological services. Justice is a high ideal that is difficult to approximate. Individuals have varying levels of need, and resources, such as medical assistance or transplant organs, can be in very short supply (Richard, Rawal, & Martin, 2005). The effort to provide services in a fair and just manner can be most difficult, both practically and emotionally. Further complicating justice in crisis situations is the fact that such events violate our sense of justice in the world. Terribly unfair things happen to innocent and undeserving people. As we have seen many times in recent history, the least able and the most destitute often are hardest hit by natural or human-caused disasters (Caffo & Belaise, 2005). It can be tempting to choose favorites or to try to obtain goods or services in unfair ways for certain clients. It also can be tempting to be reactive and unfairly withhold time or materials from certain clients in crisis situations. Because we

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want to believe in a just world, in the face of a disaster, people might be inclined to unfairly level blame at a handy target (Janoff-Bulman, 2004). Furthermore, those providing help can get caught up in creating small groups that fight with each other for resources, adding to the chaos and injustice already present (Benyakar & Collazo, 2005). Psychologists have the ethical obligation to use their knowledge of human function, and their professional training, to override any impulse to project blame on any survivors—even those who may be behaving in unfair, hateful, or intimidating ways. Principle E, Respect for People’s Rights and Dignity. Honoring this principle involves paying attention to many of the concerns already discussed. Being especially aware of cultural values and of the vulnerabilities inherent in disaster work is essential. This principle also encompasses the principle of autonomy (Beauchamp & Childress, 2001), which asserts that humans should have authority over decisions affecting their health and well-being. Crisis situations can severely limit what might ordinarily be considered as autonomy. People in disaster situations often are faced with few to no options, even in the most basic of arenas. The disaster or trauma itself can trigger existential awareness of how little control we have over our lives (Bonanno, 2004). It is important to be as respectful as possible of the client’s rights to self-determination and not to be insistent or punitive in any way (Foa, 2000). As noted, there will be constraints on the informed consent process and related boundary-setting procedures in crisis situations. Skilled psychologists will work to find ways to communicate respect for the client’s rights to make decisions in whatever limited ways are available. However, the core therapeuticrelationship boundaries must stay in place. Psychologists have a vital role to play in helping communities and individuals recover from disasters, crises, and traumatic events. However, the context of this help will extend beyond the relatively safe and predictable 50-minute hour and will necessitate wisdom and discipline in the establishment and maintenance of therapeutic boundaries. In the final section of this chapter, I turn our attention to some overarching considerations for

professionals who are mindful of their duty to create and maintain healthy, therapeutic, and ethical boundaries, regardless of task, theory, or setting. BOUNDARY TENDING AND MENDING From the traditional 50-minute-hour psychotherapy to the many far-flung professional services and activities that psychologists are engaged in around the world, setting and maintaining professional boundaries is a central moral duty. Part of the work of tending and mending professional boundaries has to do with understanding the impact these boundaries have on clients and others involved in our work.

Reactions to Boundaries In his poem “Mending Wall,” Robert Frost (2002) wrote, Something there is that doesn’t love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun, And makes gaps even two can pass abreast. (p. 33) When therapists set up, explain, and maintain boundaries, clients and others have a variety of emotional reactions. It is not uncommon for clients to question or resist boundaries, perceiving them to be artificial, limiting, hierarchical, or protective of the therapist. It is not hard to see why. In almost every form of psychological treatment, we expect that clients will have positive feelings about their therapists. Beyond a generally positive feeling, some will secretly or overtly hope for special favors, or want to become friends or even lovers (Hayward, 1994). For instance, when working with disadvantaged youth, I have been asked directly by a client if I would consider becoming adoptive or foster parent for him or her, and it is not uncommon for clients to inquire about being friends after therapy. Some theorists conceptualize this positive regard and wish for closeness as positive transference, but that is certainly not the only way to think about it. In forms of therapy that do not recognize or work with transference, this positive feeling might simply be regarded as a conscious recognition that the therapist is an accepting, caring person who is interested in being of help. 271

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Feelings of connection and affection are a natural response. Who would not want such compassionate, attentive qualities in a parent, friend, or lover? This urge for closeness—whether driven by unconscious needs and fantasies or a more conscious response to being listened to and cared for—creates a very real vulnerability in the client. In response to this vulnerability, the ethical professional must find comprehensible and gentle ways to explain professional boundaries so that clients do not feel embarrassed, judged, or rejected. Boundary setting, boundary maintenance, and boundary crossings can all elicit strong and difficult client reactions. Many examples of books, investigative televisions shows, and even movies detail the pain and anger of damaging boundary breaks in therapy relationships (Strean, 1993). Books also express rage, disdain, and disappointment in therapists who would not break boundaries that the client longed to have broken (Hayward, 1994). Of course, most therapists hope their clients have at least a mildly positive feeling about them, but not all clients long for special treatment, friendship, or other connections to their therapist. Many clients find the thought of a personal connection or relationship with their therapist most unappealing or even threatening. Clients often want their therapist to be very boundaried—a safe confidant who interacts in strictly professional ways and who in no way intrudes into their personal or social lives. These clients want the assurance that their personal materials and interactions will remain professional, private, and contained. Such clients are often overtly relieved when assured that their psychologist understands professional boundaries and can be trusted to maintain them (Epstein, 1994). Whether clients resent and challenge professional boundaries or are boundary enthusiasts, they deserve to know your boundary-keeping practices and procedures. In an article entitled “Ethical Notes on Disrupted Frames and Violated Boundaries,” Isaac Tylim (2004) wrote, “Psychoanalysts ought to keep in mind the late Donald Kaplan’s advice to his supervisees, that prior to opening a practice they should place a sign at the entrance to the consulting room reading, ‘This relationship has no future’” (p. 612). Perhaps signage is not the best solution, but the informed consent process is a central and 272

ongoing professional obligation that should include talking about boundaries. As noted, boundary problems can emerge unexpectedly. When this occurs, clients deserve to have time to talk about and process the therapeutic and emotional implications of boundary crossings or changes. This is true for the professional, too. Boundary tending and mending is an important dimension of professional self-care. Chapter 7 of this volume is devoted to self-care, but it is worth mentioning here as well. Maintaining healthy boundaries around personal and professional relationships is an important component of burnout prevention.

Professional Strategies for Balanced Boundaries There are a number of ways psychologists can help themselves and their profession to have a healthy, balanced approach to boundaries. Here are some to contemplate: ■

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Be a faithful and helpful member of a professional consultation group. This is important no matter what professional or ethical domain is under consideration. From the importance of lifelong learning, to self-care, to solving complex dilemmas, there is nothing like being a member of a community of professionals who respect and care for each other. Take time to educate those around you. Psychologists are increasingly involved behind the scenes in industry, media, and other consulting capacities (Koocher, 2009). The public and colleagues from other disciplines deserve to understand the role and scope of psychological practices and the related ethical boundaries involved. This will pay off when the time comes to manage delicate boundary situations in mixedagency settings (Kennedy & Johnson, 2009). Attend trainings, workshops, and professional conferences. Ethical thinking changes over time, responding to changes in society, legal practice, technological advances, politics, and economic forces. It is good to stay informed and connected to one’s profession.

Even with these suggested practices in place, a chapter like this one can leave professionals wondering

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why they became psychologists. Later in the poem “Mending Wall,” Frost (2002) wrote, To each the boulders that have fallen to each. And some are loaves and some so nearly balls We have to use a spell to make them balance: “Stay where you are until our backs are turned!” We wear our fingers rough with handling them. (p. 33) On the one hand, the world is filled with need. People are depressed, anxious, traumatized, lonely, subassertive, burdened by underdeveloped character or capacities, and struggling with certain painful abnormalities. There is plenty to do professionally. But on the other hand, there are many, many ethical considerations involved in setting up personal and professional boundaries to make our work ethical and safe. Some of these considerations may seem relatively tedious, legalistic, or rigid. Others intrude into our personal sphere, making it difficult to know where to draw certain lines (Pipes, Holstein, & Aguiree, 2005). And unlike the story told in Robert Frost’s poem, the boundary tending is one-sided. The client’s fingers are not worn rough with handling the repairs, but sometimes the professional might feel that way. Hopefully, this chapter has taken you beyond the Ethics Code entries themselves to create a broader and deeper set of thoughts and procedures to use as you engage in this important work.

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RELIGION, SPIRITUALITY, AND MENTAL HEALTH Alan C. Tjeltveit

Religion and spirituality can spark significant ethical challenges. Deep differences in worldviews, moral convictions, and beliefs about life’s meaning(s), plus strongly held feelings—both for and against religion and spirituality, or for and against particular forms of them—can make it difficult for psychologists to handle issues of religion and spirituality optimally. However, when psychologists draw on, and carefully apply, basic ethical principles and standards, religion and spirituality not only can be addressed ethically, they also can serve as important resources to enhance psychotherapy and improve clients’ psychological well-being. To delineate the ethical issues associated with the complex relationships among religion, spirituality, and mental health, I will first address the definitions of both religion and spirituality, the variety and individual differences to be found within religions and spiritualties, how religion and spirituality can either reinforce or clash with professional ethics (or both), the ethical dimensions underlying concepts of mental health, and empirical evidence regarding the relationship between mental health and religion and spirituality. Relevant ethical principles and standards will then be discussed. Although the emphasis will be on psychotherapy, the same ethical issues often are relevant to research, teaching, and other professional activities. Psychologists have traditionally tended either to set aside religious and spiritual issues (believing psychotherapy appropriately focuses on psychological, not religious or spiritual, issues) or to view religious or spiritual issues solely through psychological

lenses (which viewpoint often has been assumed to require either atheism or agnosticism). The latter explained religion and spirituality in strictly psychological terms (e.g., Joiner, Perez, & Walker, 2002). Those neutral or positive regarding religion and spirituality might refer someone with religious or spiritual issues to a relevant religious leader (e.g., a rabbi); those with negative leanings would likely not. Many psychologists now contend that psychotherapists should integrate spiritual issues into psychotherapy (Aten & Leach, 2009; Pargament, 2007; Plante, 2009; Richards & Bergin, 2005; Sperry & Shafranske, 2005; Walsh, 2009), producing religiously sensitive or accommodative or spiritually oriented therapeutic approaches. Some psychologists address spirituality in general; others employ particular spiritual or religious perspectives. And so, for example, there has been a rise in Christian psychology (Johnson, 2007) and counseling (Malony & Augsburger, 2007), Islamic psychology (Husain, 2006) and psychotherapy (Shah, 2005), Buddhist psychology and psychotherapy (Glaser, 2005), and Orthodox Jewish psychological perspectives (Adahan, 1987). Referrals to religious leaders may be less likely, since such psychologists often address both psychological and religious/spiritual issues. Another trend has been to draw on concepts (e.g., mindfulness and forgiveness) that originated in a religious context but may be addressed in therapy in ways that are arguably independent of their religious roots (Hathaway & Tan, 2009). Those roots may make some clients more open to those interventions, but others less open. Still other clients, concerned

DOI: 10.1037/13271-010 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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only with symptom reduction, may consider the interventions’ roots irrelevant. Ethical issues related to religion and spirituality can arise in any of those approaches. THE MANY MEANINGS OF RELIGION AND SPIRITUALITY Beliefs, practices, rituals, and institutions are emphasized in some definitions of religion. James (1902/1978), though, proposed that religion is “the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine” (p. 49). Wulff (1999) pointed, however, to a problem with definitions of religion that require a deity: Some religions don’t. Spirituality also is defined in diverse ways— overlapping with religion or being one dimension of religion (or of a particular religion), unrelated to it, or sharply distinguished from it. Transcendence, connectedness, or living from the core of one’s being may be emphasized, or, as Hill et al. (2000) noted, definitions may point to one’s ultimate concern, a factor that integrates one’s personality, authenticity, yearning, “meaningful identity and purpose,” “a search for the sacred” (p. 66), or “union with God” (p. 57). Hill et al. noted that some problematically dichotomize spirituality (which is “good” and has to do with personal experience) and religion (which is “bad” and has to do with institutions; 2000, p. 64). In fact, they concluded, most people who are religious also are interested in spirituality, most spiritual experiences have social and institutional concomitants, and both religion and spirituality can produce harm as well as benefit. Some differentiate true spirituality from counterfeit spirituality. Optimal spirituality may be tied to specific religions. Wolpe (1995), for example, argued that “Judaism teaches … [that] true spirituality means a relationship with other human beings and with God” (p. 10). Others define spirituality broadly, regarding dogmatically bounded or religion-specific spiritualties to be false or insufficiently inclusive. Other broad definitions of spirituality are offered nonprescriptively, without claims that they alone are true or best. I agree with Hill et al.’s (2000) 280

conclusion that spirituality and religion share “many common characteristics” (p. 58) and “are complex phenomena, multidimensional in nature, and any single definition is likely to reflect a limited perspective or interest” (p. 52). In terms of self-understanding, some people consider themselves spiritual but not religious, some religious but not spiritual, some both religious and spiritual, and some neither religious nor spiritual (Davis & Smith, 2007). Sensitivity to this diversity is key: Psychologists who regard religiousness and spirituality as virtual synonyms need to be aware that some consider themselves spiritual but not religious (with spirituality central to their identities); those who sharply distinguish religiousness and spirituality need to be aware that some see religion and spirituality as utterly integrated in their lives and identities. More generally, psychologists and clients inevitably take some stand regarding religion and spirituality— whether broad or narrow, more or less positive, more or less explicitly articulated, and more or less firmly held. Ethical problems may arise when psychologists employ definitions that diverge from those with whom they work. Accordingly, psychologists need to learn to practice ethically, not only with those whose religion or spirituality diverges from their own, but also with those whose definitions of religion or spirituality diverge from their own. Significant inter- and intrareligious and interand intraspiritual differences exist (Cousins, 1985– 2004; Eck, 2001). Religious beliefs, Cohen, Siegel, and Rozin (2003) found, for instance, are less important to Jews than to Christian Protestants. However, Rosmarin, Pirutinsky, Pargament, and Krumrei (2009) found that that may be true only for non-Orthodox Jews (Reform, Conservative, Reconstructionist, unaffiliated, and other). Differences within a particular religious group or denomination and between individuals also exist. One congregation or client may emphasize one religious theme (e.g., being holy) but a second another theme (e.g., forgiveness). Shifts in religiousness and spirituality also occur across time. When psychologically fragile, clients may become religiously or spiritually rigid, or may withdraw from beneficial practices and social support.

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A client may choose to be in Christian counseling but later change his beliefs and practices. If he had agreed that therapy would be conducted in harmony with a faith he no longer embraces, his therapist would need to respond appropriately. Other changes may occur. Stern (2009), for instance, described the experience of those with fluctuating faith: “I sometimes see myself as waking up in the morning a devout atheist; later in the afternoon, a persuaded skeptic; later still, an agnostic; that evening an excited polytheist; just before retiring, an impious atheist” (p. 1). In this realm, especially, Kluckhohn and Murray’s (1953) reminder is apt: Each person is “like all,” “like some,” and “like no” others (p. 53). RELIGION AND SPIRITUALITY AS MOTIVATION TO UPHOLD PROFESSIONAL ETHICS Psychologists behave ethically for a variety of reasons, some religious and spiritual and some not. Because highly ethical behavior may be contrary to selfinterest (at least in the short term) and may require hard emotional and intellectual work (Tjeltveit & Gottlieb, 2010), powerful reasons and motivations to be ethical may be required. A psychologist working with a client whose religion he or she despises, for example, needs to draw on deep ethical sources. Although some psychologists’ ethical sources are neither religious nor spiritual, other psychologists draw extensively on religious and spiritual sources, finding in them empowering social support, emotional equilibrium, passion, motivation, inspiration, and reasons for acting in accord with the highest ethical standards. For example, when striving to embody caring and compassion—crucial for clinical practice, Sarason (1995) contended—clinicians may turn to centuries-old religious and spiritual resources (Greenberg, 2008). On the other hand, some religions and forms of spirituality may be incompatible with professional ethics. “My overriding moral obligation is to convert all nonbelievers to my religion” cannot, for instance, be reconciled with professional ethics. If, as Handelsman, Gottlieb, and Knapp (2005) have suggested, ethics training is “a process of acculturation” into the culture of psychology, a key question

is the relationship of that culture with psychologists’ and trainees’ other culture(s). Some integrate their religious and spiritual culture with that of psychology (with difficulty or ease); others privilege either the culture of psychology or their religious and spiritual culture (problems may be associated with either privileging); others end up marginalized, uncommitted to either (Handelsman et al., 2005). New cross-cultural tensions may arise when ethics codes change, an individual’s religion or spirituality evolves, or both. Because psychologists draw on a variety of ethical sources, some religious or spiritual, and some not, they exhibit a variety of ways of being ethical, and of exhibiting ethical excellence. A Jewish psychologist who sees observance of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) as a mitzvah (meaning either commandment or good deed) is motivated in somewhat different ways than is an atheist whose ethical convictions and motivations are unrelated to any religious or spiritual tradition, a Buddhist who sees professional ethics as a contemporary outworking of the Eightfold Path, a Christian who is motivated to observe professional ethics because that is what Jesus would do, or a secular humanist whose nonreligious, deep spirituality involves striving to benefit others. THE ETHICAL CHARACTER OF CONCEPTS OF MENTAL HEALTH The ethical dimensions of concepts of mental health may connect in important ways with religion and spirituality. Especially when mental health is construed broadly to include therapy goals, ideal or optimal psychological functioning, and desired therapeutic outcomes, concepts of mental health are—to a greater or lesser extent—value-laden. The ethical values with which they are laden may be informed to varying degrees by religious and spiritual considerations. Psychotherapists can take “rather striking moral positions,” Roazen (1972) observed, “via clinical categories without any awareness that the same categories might justify very different moral alternatives” (p. 202). In a collectivist culture, I think a “successful therapeutic outcome” may be declared when a client 281

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upholds familial honor and restores community harmony, even at considerable personal cost. Familial honor and harmony may be viewed—by therapist, client, and client’s family and community—as goods to be celebrated. A client who fails his filial duty as eldest son and dishonors his family by leaving his community may be seen as “a therapeutic failure.” In an individualistic culture, however, that client’s independence may be declared a therapeutic success (and that outcome good), but a client’s sacrifices for family honor or filial duty that resulted in ongoing or exacerbated symptoms would likely be viewed as a therapeutic failure. Cultural and other moral values can inform clinical concepts (Tjeltveit, 1999, 2006). Religion and spirituality may significantly shape psychologists’ and clients’ ideas about mental health and therapy goals. (Others, of course, report that their concepts of mental health are not affected by religion or spirituality.) Consider self-realization as a therapy goal: For Muslims, Shah (2005) reported, “self-realisation means self-knowledge as a moral principle in order to follow the spiritual goal in which the biological and worldly needs become instrumental toward the achievement of natural equilibrium consistent with the Fitrah” (p. 1), with Fitrah being “an inborn predisposition to acknowledge Allah (SWT)” that “implies submission to the will of Allah (SWT)” (p. 12).1 More generally, Tjeltveit, Fiordalisi, and Smith (1996) found that mental health values were complexly related to various measures of religiousness and spirituality. Therapists and clients may hold the same or different religion- or spirituality-related therapy goals. Some clients want mental health that is in harmony with religious or spiritual ideals. Some therapists affirm such goals, some accept them (perhaps grudgingly), and some reject them. To the extent therapist and client differ about what mental health means, ethical problems may arise. Such differences need to be handled with special care when therapists evaluate the mental health consequences of client religion and spirituality. Sensitivity to how psychologists’ ethical convictions and understandings of religion and spirituality might affect their judgments

is crucial. Insensitivity may produce bias or changes that clients do not want or that are harmful. THE FRUITS OF RELIGION AND SPIRITUALITY: HARMFULNESS AND BENEFIT Psychotherapy clients’ religiousness or spirituality may be a problem, a resource (of modest or considerable efficacy), or both. Extensive empirical research has addressed the relationship of mental health and religion, both variously defined. A more modest set of studies has addressed the mental health–spirituality relationship. Reviews generally indicate that religion tends to be slightly positively correlated with mental health (results vary by measurements used), a trend supported by increasingly sophisticated research designs (Gartner, 1996; Hackney, 2010; Koenig, 2009; Koenig, McCullough, & Larson, 2001). Koenig et al. for instance, found generally modest, positive correlations between religiousness and well-being in 80% of the reviewed studies, with religion positively correlated with greater hope and optimism, greater purpose and meaning, greater self-esteem, better adaptation to grieving, greater social support, less loneliness, less depression, fewer suicides, less anxiety, less schizophrenia, less drug and alcohol abuse, less delinquency and crime, and greater marital stability. Gartner, however, found ambiguous or complex relationships between religion and anxiety, psychosis, self-esteem, and sexual disorders. He also found that religion was correlated positively with authoritarianism, dogmatism, rigidity, and dependence, and negatively correlated with tolerance of ambiguity. In his review of relevant empirical literature, Pargament (2002) reported that certain forms of religion are generally helpful but others generally harmful. Researchers increasingly have investigated not religion in general but types of religiousness. Religion also appears to be particularly helpful to those who are socially marginalized. For instance, religious involvement is more closely related to various measures of well-being among Blacks than among Caucasians (Pargament, 2002).

1 SWT stands for Subhanahu wa ta’ala, an Islamic expression meaning, roughly, “Glory to God,” traditionally spoken or written after the name of the deity and retained in these quotes to be respectful to their Muslim author.

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Despite stereotypes about them, even controversial forms of religion, Pargament (2002) reported, may be associated with psychological benefits. He pointed to these “strong advantages” of fundamentalism: “an unambiguous sense of right and wrong, clear rules for living, closeness with like-minded believers, a distinctive identity, and, most important, the faith that their lives are sanctioned and supported by God” (p. 172). Galanter (1996) likewise documented adaptive aspects of cult (or “new religious movement”; Woody, 2009) membership. Avoiding stereotypes and minimizing bias— whether pro- or antireligious—is an ethical obligation for psychologists. Stereotypes may contain a measure of truth, however. Pargament noted, for example, that fundamentalists exhibit intolerance and discrimination. However, individual differences in religion or spirituality and mental health relationships do exist. Even generally health-promoting forms of religion and spirituality may harm some persons. “Especially in the emotionally vulnerable,” Koenig (2009) noted, “religious beliefs and doctrines may reinforce neurotic tendencies, enhance fears or guilt, and restrict life rather than enhance it” (p. 289). Psychologists thus need to assess a specific person’s religion or spirituality, not relying solely on their own experience or group generalizations. Accurate assessment of the relationship between an individual’s religion or spirituality and mental health requires an informed, nuanced, self-aware, unbiased appraisal, including the benefits and problems associated with religion and spirituality and how an individual uses it to cope (Pargament, 1997). Psychologists whose own perspective on religion shapes their understanding of mental health need to be particularly careful not to use it to bias their understandings of clients. The best question to ask is not the simplistic, “Is religion good or bad?” but “How helpful or harmful are particular kinds of religious expressions for particular people dealing with particular situations in particular social contexts according to particular criteria of helpfulness and harmfulness?” (Pargament, 2002, p. 178). However psychologists answer that question, some clients will pursue what they consider to be a true spiritual or religious path, regardless of what

psychologists understand to be its negative psychological consequences. Such clients may create for the psychologist an apparent ethical dilemma: Benefiting such clients means violating their autonomy by altering their religion or spirituality; respecting their autonomy means allowing them to be harmed. RELEVANT ETHICAL IDEALS Addressing such dilemmas and otherwise practicing in optimally ethical ways involves applying key ethical ideals relevant to religion or spirituality, a task to which I now turn.

Principle A, Beneficence and Nonmaleficence Deciding whether religion and spirituality benefit people (APA, 2010) can be deceptively difficult: People with different positions regarding religion and spirituality may understand benefit in very different ways. A psychologist may think leaving her religion would benefit a client because it harms her; the client, however, thinks a loss of faith would harm her, violating the principle of nonmaleficence. Furthermore, while some psychologists think mental health is a supremely important benefit, clients may think religious well-being is more beneficial (Yarhouse & VanOrman, 1999). In many cases, psychologists legitimately evaluate the mental health consequences of religion and spirituality, determining their harm or benefit. They also may implement religious or spiritual interventions, which evidence increasingly suggests can improve mental health (Baetz & Toews, 2009; Plante, 2009; Priester, Khalili, & Luvathingal, 2009). Harm to clients can also result from addressing religious or spiritual issues, however. APA (2010) Standard 3.03, Other Harassment, states that “psychologists do not knowingly engage in behavior that is … demeaning to persons with whom they interact in their work based on factors such as those persons’ … religion” (p. 6). Insensitive handling of religious and spiritual issues may harm clients, even when psychologist do not have negative attitudes toward religion or spirituality. Severe client distress or psychopathology may, Baetz and Toews (2009) warned, preclude even asking about 283

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sensitive religious or spiritual matters, because doing so may harm a client. Finally, McMinn (in Gonsiorek, Richards, Pargament, & McMinn, 2009) noted, there may be “clinical dangers” (p. 393) associated with integrating spiritual interventions, like prayer, into psychotherapy. Religious or spiritual assessment or intervention thus may help or harm. A strict neutrality toward religion and spirituality in psychotherapy has been proposed as a way to avoid potential harm to clients that results from religious or spiritual assessment or intervention. However, as Post, Puchalski, and Larson (2000) noted, “when patients feel that their spiritual needs are neglected in standard clinical environments, many of them may be driven away from effective treatment” (p. 578). Neutrality may thus also help or harm.

Respect Specifying the nature of the respect psychologists should exhibit when addressing religion and spirituality is complex. What respect should psychologists exhibit when working with clients whose religious beliefs or practices they find problematic or even appalling? For instance, what form of respect is warranted, and optimal, when a client who is a fundamentalist preacher reports that he tells women who have abortions, as well as those who are sexually attracted to people of the same sex, that they are despicable sinners bound for hell? Principle E, Respect for People’s Rights and Dignity (APA, 2010) states that “psychologists respect the dignity and worth of all people, and the rights of individuals to … self-determination” (p. 3). The dignity and worth of that preacher should thus be respected, as should his right to make decisions about the good life he seeks, even if we disagree with them. Principle E states that “psychologists are aware of and respect … differences, including those based on … religion …, and consider these factors when working with members of such groups” (p. 3). Respect thus includes awareness that others believe and behave in relationship to what they consider to be real spiritual or religious entities and that some reject or lack interest in religion or spirituality. As Poole et al. (2008) noted, “The insistence that even non-believers have a spiritual life shows a lack of 284

respect for those who find meaning within beliefs that reject the transcendent and the supernatural” (p. 356). Respect is also due to those highly religious clients who “strongly prefer religiously similar counselors, not merely counselors who value general spirituality” (Worthington, Kurusu, McCullough, & Sandage, 1996, p. 460). The Ethics Code, Plante (2007) contended, asks psychologists “to be respectful of the religious and spiritual beliefs, behaviors, and traditions of others” (p. 894; see Yarhouse, 2003). Others, however, argue that such respect is not obligatory. For instance, we need not respect the religious behavior of the Rev. Jim Jones when he ordered his obedient followers to kill themselves and their children (J. Rudski, personal communication, November 2009). Indeed, some think it would be wrong, or even immoral, to do so. Principle E (APA, 2010) does not, in fact, state that psychologists are obligated to respect religion in general, every religion, or all religious and spiritual beliefs and behaviors, although we are to respect all persons. Respecting persons whose religion or spirituality is different from one’s own can be quite difficult. Psychologists who hold that most religions and spiritualties have some merit, but none should be taken overly seriously or rigidly, may have problems respecting a client passionately committed to a particular religious or spirituality. Psychologists committed to a particular religion or form of spirituality may struggle to respect persons who are not religious, think all religions and spiritualties have merit, or have different religious passions. Focusing on what one can affirm in a client, religion, or form of spirituality may be helpful, however. Genuine ethical dilemmas pitting beneficence against respect for autonomy may arise. How should a psychologist address a client whose religious choices, beliefs, or behaviors are very harmful? Although establishing a good therapeutic relationship and carefully processing such issues with clients will often resolve such dilemmas, and considerable deference is appropriately given to clients’ choices, benefiting clients and preventing harm to them or a third party may, in some situations, require psychologists to act in ways that reduce client autonomy. Pargament (2007), for instance,

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discussed the occasional need to challenge spiritual inflexibility. That is, the respect mandated by the Ethics Code is not absolute, but rather it must be weighed against other ethical principles (Knapp, Lemoncelli, & VandeCreek, 2010). In thinking about such dilemmas, psychologists inevitably draw on their own ideas about benefit and so should be aware of biases those ideas may produce, of mental health professionals’ tendency to be biased negatively about unfamiliar religious perspectives (O’Connor & Vandenberg, 2005), and of other relevant empirical evidence. Appropriate consultation should be sought and interventions that challenge clients’ religion or spirituality should be no more intense or broad ranging than required.

Justice and Addressing Bias According to Principle D, Justice, psychologists “take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices” (APA, 2010, pp. 3–4). Psychologists thus work to identify their biases and ensure that those biases do not result in unfair treatment of clients. In particular, Standard 3.01, Unfair Discrimination, states that “in their work-related activities, psychologists do not engage in unfair discrimination based on … religion” (p. 6). Determining what constitutes bias or discrimination can be challenging, however, because we lack an Archimedean point to determine bias about religion and spirituality objectively. Religious or spiritual bias can be either unduly positive or negative. Negative biases include the following: nonreligious psychologists who perceive client faith as indicative of rigidity, low intelligence, or poor coping … [or] who perceive spiritual and religious concerns as of little consequence, thereby disparaging an important aspect of clients’ worldview; religious psychologists who view nonreligious clients as immoral, defective, or untrustworthy … [or] who view clients from a tradition other than their own as misguided. (Gonsiorek in Gonsiorek et al., 2009, p. 386)

Unduly positive bias also can be problematic. Psychologists sharing clients’ religious or spiritual perspectives may ignore the problems inherent in that perspective or in a particular client’s appropriation of it, a phenomenon Akhtar (2008) called “nostalgic collusions” (p. 324). Psychologists who see persons exhibiting unusual religiousness or spirituality as exotic or idealize them might misconstrue “serious problems … as diversity” and ignore “behaviors with significant mental health implications” (Gonsiorek in Gonsiorek et al., 2009, p. 387). Empirical evidence often can help psychologists avoid bias. Research on the psychological consequences of involvement with new religious movements (Galanter, 1996), for instance, served to reduce bias against those movements. Research and professional statements challenging common assumptions about the effectiveness of religiously mediated efforts to change sexual orientation also require careful attention (e.g., APA, Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009; Greene, 2007; Jones & Yarhouse, 2007). Consultation with other psychologists, other professionals (see APA, 2010, Standard 3.09, Cooperation With Other Professionals), and those with scholarly expertise or practical experience about a particular religion, religious community, form of spirituality, or spiritual practice can reduce bias. Particularly helpful are consultants familiar with both a particular form of religion or spirituality and relevant psychological research on its mental health concomitants. Consultation may be essential with some clients, for example, ultra-orthodox Jewish clients, lest interventions violate their religious laws and produce undue distress (Buchbinder, 1994). When therapist and client share the same approach to religion and spirituality, the perspective of a professional who does not share that approach may be helpful, as may an insurer’s perspective on billing. Indeed, Gonsiorek (in Gonsiorek et al., 2009) suggested that a reluctance to obtain such consultation may raise a red flag. Awareness of one’s attitudes, beliefs, and emotions regarding religion and spirituality and conscientiously addressing one’s own ethical vulnerabilities (Pope, Sonne, & Greene, 2006; Tjeltveit & Gottlieb, 2010) in relationship to religion and spirituality also can reduce bias. 285

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Practicing Competently Is a psychologist, qua psychologist, competent to address a client’s religious and spiritual issues? Standard 2.01, Boundaries of Competence, states that psychologists function “only within the boundaries of their competence” (APA, 2010, p. 5). Religion is mentioned: Where scientific or professional knowledge in the discipline of psychology establishes that an understanding of factors associated with … religion … is essential for effective implementation of their services or research, psychologists have or obtain the training, experience, consultation, or supervision necessary to ensure the competence of their services, or they make appropriate referrals, except as provided in Standard 2.02, Providing Services in Emergencies. (p. 5) What does not establish competence to address religious or spiritual issues is theology training, religious faith, spirituality, “equally held agnosticism or atheism” (Gonsiorek, in Gonsiorek et al., 2009, p. 386), or past experience or familiarity with a religion (Yarhouse, 2003). Two sets of guidelines for addressing religious and spiritual issues exist. Competencies for Addressing Spiritual and Religious Issues in Counseling (Association for Spiritual, Ethical, and Religious Values in Counseling [ASERVIC], 2009) was approved by ASERVIC, an American Counseling Association division “committed to the infusion of spiritual, ethical, and religious values in counselor preparation and practice” (Cashwell & Young, 2005, p. xiii). An ad hoc APA Division 36 (Psychology of Religion) committee developed Preliminary Practice Guidelines for Working With Religious and Spiritual Issues (Hathaway & Ripley, 2009), but they have not been adopted by Division 36 or APA. Those guidelines address professionals possessing relevant knowledge; sensitivity; respect; self-awareness; and skills in assessment, intervention, and referral. The guidelines also address being aware of blind spots (or being open to learning about their blind spots) and biases, especially about those whose approach to, definitions of, and 286

understandings of religion and spirituality differ from our own. To ensure competence with religious and spiritual clients, Richards (in Gonsiorek et al., 2009) argued that “all psychologists are ethically obligated to incorporate religion and spirituality into their practices” (p. 389, emphasis added). That claim is controversial—because of the extensive additional training required, many client problems can be resolved without addressing religious or spiritual issues, and many clients want therapists to address only issues that are psychological, not religious or spiritual (in part because religious or spiritual leaders alone may be considered competent to address them). Indeed, the APA (2008) stated that psychologists lack the competence to evaluate religious tenets, but it also asserted that “psychologists can appropriately speak to the psychological implications of religious/spiritual beliefs or practices when relevant psychological findings about those implications exist” (p. 433, emphasis added). Psychologists’ limited competence regarding religion and spirituality can and sometimes should be increased, however. They can obtain relevant knowledge and appropriate consultation (Richards & Bergin, 2005), drawing on extensive available resources (e.g., Josephson & Peteet, 2004; Kobeisy, 2004; Richards & Bergin, 2000; Sperry & Shafranske, 2005) to equip them with knowledge about religion and spirituality in relationship to psychological issues. An area of competence that has received special attention is assessment. Standard 9.06, Interpreting Assessment Results, states that “psychologists take into account … other characteristics of the person being assessed, such as … cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations” (APA, 2010, p. 12), with cultural differences presumably including religion and spirituality (Cohen & Hill, 2007). Some forms of assessment are problematic, such as taking an extensive spiritual history from a client who has neither current nor past religious affiliation, denies being spiritual, or does not want that area addressed, or for whom religion and spirituality are not relevant to the psychological matter being addressed (Josephson & Peteet, 2007; Poole et al., 2008). Optimal

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assessment is respectful and focuses on the relevance of religion and spirituality to psychological issues, with assessments ranging accordingly from a common “short, respectful, and nonjudgmental spiritual needs assessment” (Baetz & Toews, 2009, p. 297) to less common extensive evaluations. Resources to help psychologists conduct sensitive assessments of relevant spiritual and religious issues are extensive (e.g., Aten & Leach, 2009; Griffith & Griffith, 2002; Josephson & Peteet, 2007; Plante, 2009; Richards, Bartz, & O’Grady, 2009).

Avoiding Inappropriate Psychologist Influence on Client Religion or Spirituality Intrusive advocacy, “the tendency to want to guide, direct, or determine a patient’s decisions” (Pope & Vasquez, 2007, p. 191) in ways not directly related to the treatment goals, may mean psychologists fail to respect a client’s autonomy, harm the client, or inappropriately intrude into or influence religious and spiritual matters beyond the boundaries of their competence or what the client wants to be addressed. Even when therapists strive to be value-free, they sometimes influence clients to adopt, not healthy values, in general, but the therapist’s own values (Kelly & Strupp, 1992), a process sometimes described as imposing views on clients, coercing them (Post et al., 2000), or converting them (Priester et al., 2009). That dichotomy—neutral therapists versus therapists who impose their views on clients—is deeply problematic, however. In reality, therapists influence clients to varying degrees and rarely are able to impose their views on others. If they could easily convert clients to their views on religion or spirituality, they could easily convert their clients to mental health, an ability psychologists do not possess. Psychologists nevertheless may significantly influence client religion or spirituality. Therapists need to be aware of their power in relationship to often-vulnerable clients, whose capacity to make choices may be impaired (Doherty, 2009). Clients may not understand that psychologists’ expertise about psychological matters does not extend automatically to religion and spirituality (see Sloan, Bagiella, VandeCreek, & Poulos, 2000).

Psychologists may inappropriately influence clients by relying exclusively on their own conceptualizations or understandings of religion and spirituality (whether broad and liberal or particular and tradition conserving), disregarding clients’ approaches. Doherty (2009) suggested, for example, that “when the idea of a calling in the spiritual domain is reduced to a need in the psychological domain, conceptual imperialism is at work” (p. 220). Working within clients’ religious and spiritual frameworks is usually ideal (Doherty, 2009; Priester et al., 2009; Tjeltveit, 1999). Various solutions have been proposed to prevent inappropriate influence, including divergent proposals about self-disclosure. Some stress the benefits of avoiding “both overt and covert messages” (Zeiger & Lewis, 1998, p. 415) and encourage professionals to “be neutral” (Dein, 2010, p. 4) or minimize their influence. Slife and Richards (2001), in contrast, contended that “claims of objectivity, nonpartisanship, and neutrality can contain the worst kind of biases and values, because they influence the enterprise with biases and values that are unrecognized” (p. 192). Accordingly, therapists should be explicit about their religion and spirituality and about their approach to religion and spirituality, to diminish subtle influence, facilitate dialogue, and empower clients. Research has not yet established, however, whether either routine disclosure or nondisclosure is more effective. Still others suggest that the extent of self-disclosure be tailored to particular client needs and characteristics (Doherty, 2009; Hathaway & Ripley, 2009; Tjeltveit, 1999). Doherty suggested therapists be generally cautious about self-disclosure but noted that well-timed self-disclosures that follow a client’s lead can sometimes be very therapeutic. Clients may try to push for self-disclosure by asking about their therapist’s views—such requests may represent either resistance or clients’ valid desire to know whether a therapist will understand, respect, and support their religion or spirituality. Processing with a client the reasons for such requests balances respect for client autonomy, beneficence, and nonmaleficence. Therapist interventions concerning religion and spirituality range from acknowledging spiritual beliefs 287

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to challenging harmful beliefs (Doherty, 2009). Psychologists appropriately tailor intensity of intervention to a particular client on the basis of client preference, relevance to therapeutic goals, and therapist competence (Doherty, 2009; Tjeltveit, 1999), as demonstrated by the APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009). Matching therapist and client on the dimension of religion and spirituality largely solves the problem of inappropriate influence, but finding such matches is not always practical. Clinicians matched with clients who share their religion or spirituality need to be sensitive to issues arising if a client’s views change over time. Clients may be reluctant to talk about their new views for fear of disappointing—or being judged by—therapists whose views they once shared.

Obtaining Informed Consent Providing clients with information about the nature of therapy (APA, 2010, Standard 10.01, Informed Consent to Therapy; also see Chapter 12 of this volume) is especially important if psychologists intend to address religion or spirituality in a nonstandard way (Hawkins & Bullock, 1995; Hunter & Yarhouse, 2009). Obtaining informed consent should be ongoing. Hunter and Yarhouse (2009) suggested that if, in the course of therapy, a client requests a particular form of religious intervention, detailed and careful informed consent be provided, assuming the psychologist is competent to provide the intervention and has determined it will benefit the client. Informed consent is also important when therapists suggest a nonstandard religious or spiritual intervention, with attention paid to relevant power differentials and ensuring that clients really do consent.

Appropriate Referral and Collaboration Benefiting religious or spiritual clients may require psychologists to “consult with, refer to, or cooperate with other professionals” (APA, 2010, Principle B, Fidelity and Responsibility, APA, 2010, p. 3; also see Standard 3.09, Cooperation With Other Professionals). Consultation may be indicated if a psychologist needs to know about a religion or spirituality to benefit clients, or either client or therapist react with strong emotions when religious or spiritual issues are discussed. 288

Collaboration may be indicated when clients want both religious or spiritual intervention and psychological services, when religious or spiritual issues emerge in therapy, when religious or spiritual issues contribute to psychopathology, and when a psychologist is not competent to provide religious or spiritual interventions that would improve clients’ mental health (Baetz & Toews, 2009; McMinn & Dominquez, 2005; Plante, 2009). Cooperating with a client’s religious leader or with professionals who possess expertise in a particular religion or form of spirituality may be helpful. A collaborative relationship requires release of information, clarity regarding confidentiality, and effective communication between professionals. Psychologists may need to refer when clients strongly prefer a therapist whose approach to religion or spirituality matches theirs, or when major religious or spiritual differences provoke strong emotions, make understanding each other too hard, or both (Hathaway & Ripley, 2009).

Appropriately Handling Multiple Relationships Applying Standard 3.05, Multiple Relationships, is important when client and psychologist share a small community centered on a particular approach to religion or spirituality, whether that be an atheist club, a local Buddhist meditation group, or the only Regular Baptist congregation in Rhode Island. Particular boundary issues may arise with psychologists who also are religious leaders (Plante, 2007) or family therapists involved in religious communities (Hill & Mamalakis, 2001). Psychologists seeking guidance may draw on general guidelines for addressing nonsexual multiple relationship (Gottlieb, 1993; Pope, n.d.) and on strategies that those practicing in rural communities employ (Geyer, 1994). (More information on boundaries can be found in Chapter 9 of this volume.)

Ethical Issues Associated With Interventions That Draw on Religion or Spirituality When psychologists employ interventions that arise from religion or spirituality, all this chapter’s ethical issues may arise. Such interventions can range from

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one-time and delimited to broad in scope, from the explicit to the implicit (Tan, 1996), from those based in a specific religion (e.g., Buddhism; e.g., Glaser, 2005) to those that are generically spiritual (e.g., Cashwell & Young, 2005), from those addressing psychology in general (e.g., Hill et al., 2000) to those linked with a particular theory (e.g., rational– emotive therapy; Nielsen, Johnson, & Ellis, 2001), from those found only in a particular tradition (e.g., the Christian Theophostic Prayer Ministry; Hunter & Yarhouse, 2009) to those so general (e.g., voluntarism; Plante, 2009) they may seem psychological, and from those that can be carried out only by someone who shares a client’s religion or spirituality (e.g., Shah, 2005) to those anyone can implement (e.g., Plante, 2009). Such interventions have been tested empirically (Baetz & Toews, 2009; Koenig, 2009; Plante, 2009; Priester et al., 2009). Koenig reported that in six of seven randomized clinical trials testing the effectiveness of religious interventions, anxiety levels in patients who received those interventions dropped more rapidly than in those who did not. Two types of interventions with religious and spiritual roots have received extensive empirical support: forgiveness and mindfulness (e.g., Shapiro & Carlson, 2009; Wade, Worthington, & Meyer, 2005). Whatever level of empirical support spiritual and religious interventions have received, however, they can be employed either ethically or unethically. Applying APA ethical principles and standards can clarify how psychologists can employ those interventions ethically. However, particular interventions— when implemented in certain ways, with certain clients, with particular problems, and at particular points in therapy—may harm, exploit, cause a rupture in the therapeutic alliance (Dew et al., 2008), or otherwise exacerbate clients’ psychological problems. The meaning of the respect psychologists should exhibit varies with clients’ religion, spirituality, and choices about receiving religious or spiritual interventions. Respect may mean sensitively, nonjudgmentally inquiring about religion or spirituality, especially because many clients welcome such inquiries (Baetz & Toews, 2009; Shah, 2005). It also may mean incorporating religious or spiritual interventions into therapy—when clients choose to

receive them and they contribute to clients’ therapy goals. Respect also may mean deferring to a client’s choice to see a therapist who shares his or her religion or spirituality. It also means being unbiased and just. When providing religious or spiritual interventions, psychologists should practice within the boundaries of their competence, although there is no clear consensus on what competence concerning such interventions means. Competency involves knowledge, respect, sensitivity, practical skills, and other factors delineated in adopted and proposed competency guidelines (ASERVIC, 2009; Hathaway & Ripley, 2009), but what competency means also depends, in part, on how religion and spirituality are understood and the extent to which clients and their religious or spiritual traditions think psychologists are competent to address religion or spirituality. Ethical psychologists accurately convey to others the nature of their work with clients (APA, 2010, Principle C, Integrity). They accurately identify the nature of services rendered and file insurance claims only for services that are primarily psychological, not primarily religious or spiritual (Gonsiorek in Gonsiorek et al., 2009). They avoid “a careless slide from religiously sensitive psychological services to primarily religious services” (Gonsiorek in Gonsiorek et al., 2009, p. 388) and answer “no” when asked, “Would the psychologist reasonably expect concerns if the religious and spiritual interventions were known by a third-party payer?” (McMinn in Gonsiorek et al., 2009, p. 394). Intervening outside of the normal boundaries of psychological practice requires a process of informed consent that is more careful and extensive than usual. For example, if mindfulness or forgiveness interventions may clash with clients’ religious or spiritual approaches (or with how clients are nonreligious or nonspiritual), psychologists should inform clients of this potential clash and proceed only with a client’s clear consent. That an intervention works in general to produce psychological benefit does not mean that it will work with a particular client or that the client wants the intervention. Even more important is obtaining informed consent when psychologists offer spiritual interventions for which less empirical support is available. 289

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When psychologists implement religious or spiritual interventions, they add a new form of expertise to their psychological expertise. As McMinn (in Gonsiorek et al., 2009) noted, adding such expertise risks “an escalation of the intrinsic power differential between psychologist and client” (p. 393). Accordingly, special efforts are needed to avoid inappropriate religious or spiritual influence. Religious or spiritual interventions may appear so beneficial that all psychologists should employ them. Frame (2003), for example, asserted that “counselors working with religious clients must help them examine the tenets of their religion that could be contributing to their distress” (p. 101, emphasis added). This gives rise to three questions that will close this chapter. Question 1: Given the potential benefits to clients of religious or spiritual interventions, is it ethical for psychologists to refrain from addressing religion and spirituality? When presenting problems and client goals are substantially unrelated to religion or spirituality, when religious or spiritual interventions would harm a client, when clients do not want those issues addressed, and when psychologists do not possess the competence to address those issues (including both relevant knowledge and the ability to handle the topic emotionally), psychologists certainly may refrain from addressing religion or spirituality. Indeed, that would be the optimal ethical course to pursue. It would be problematic, however, for psychologists to refuse consistently to talk about religious or spiritual issues that clients think are important and that are relevant to the client’s presenting problems. Additionally, it would be problematic for psychologists to fail to learn about interventions empirically established as beneficial to clients and clearly within the competence of psychologists. To avoid problems created by dual relationships, Frame (2003) argued that therapy relationships in which religious clients work with therapists “who share their values and religious beliefs … are best avoided if possible” (p. 290). In sharpest contrast, Shah (2005) contended that “the practice of Islamic psychotherapy requires the therapist to be well versed in Islamic tradition and to be a practicing 290

Muslim in letter and spirit” (p. 14). These views give rise to a second question. Question 2: Is it ethical for psychologists to work with clients who share their religion or spirituality and to develop forms of therapy that grow out of and are consistent with particular approaches to religion or spirituality? It depends. Certain psychologists—that is, those who are aware of the potential biases created by working with clients who share their religion or spirituality, who are open to criticisms of their religion or spirituality (including potentially harmful psychological consequences), who obtain and respect client informed consent regarding religious or spiritual interventions, who possess competence as psychologists (including proper deference to relevant scientific findings and competence to implement religious or spiritual interventions), who do not commit boundary violations that impair their objectivity or exploit clients, and who are equipped emotionally to allow clients to move away from their shared religion or spirituality— certainly can work effectively and ethically with such clients. Question 3: Is it ethical for psychologists to address religion or spirituality with clients who do not share their religion or spirituality? Again, it depends. Empirical evidence is relevant: Nonreligious psychologists can implement effective religious or spiritual interventions with religious clients (e.g., Propst, Ostrom, Watkins, Dean, & Mashburn, 1992). Certain psychologists—that is, those who possess relevant knowledge about a client’s religion or spirituality, who are unbiased in assessing client religion or spirituality and its relationship to mental health, who can competently provide effective religious or spiritual interventions, who are sensitive to the fact that some clients do not want interventions whose origins are from a religious or spiritual perspective they do not share, who obtain and respect client informed consent, who respect clients and religious differences (including a recognition of the divergent ways religion and spirituality are defined and conceptualized and of any definitional or conceptual differences between themselves and their clients), who are willing to work within a client’s religious or spiritual framework,

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who do not inappropriately influence client religion or spirituality, and who are willing to consult with, collaborate with, or refer to those with particular knowledge about a client’s religion or spirituality— certainly can work effectively and ethically with clients who do not share their religion or spirituality. Psychologists who lack these characteristics run the risk of practicing in ways that fall short of the highest ethical ideals of the profession. With careful reflection, self-awareness, relevant knowledge and skills, sensitivity, and a willingness to learn, psychologists can address religious and spiritual issues in ways that benefit and do not harm clients; that respect clients’ rights, autonomy, and dignity; that are just; and that permit psychologists to exhibit responsibility and integrity.

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CHAPTER 11

SEXUALIZED RELATIONSHIPS Janet L. Sonne

Less than 40 years ago, sexualized relationships between mental health practitioners and their current patients were referred to as the “problem with no name” (Davidson, 1977, p. 43). In the past four decades, however, professional, legal, and public influences combined to catapult the subject to the forefront of clinical inquiry, empirical investigation, revision of professional ethics codes, establishment of new legal standards, efforts to create effective interventions (for both patient and therapist), and development of preventive training strategies (Bates & Brodsky, 1989; Pope, 1994; Schoener, 2007). Over the years, the topic expanded to include sexualized relationships between mental health professionals and their former clients, students and supervisees, and relatives or significant others of current therapy clients. The topic remains critically important. Central to the identity of a psychologist are the foundational moral responsibilities outlined as the General Principles in the current Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010): Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; Principle D, Justice; and Principle E, Respect for People’s Rights and Dignity. Sexualized relationships between psychologists and clients, former clients, students and supervisees, and current clients’ significant others compromise those basic professional obligations. Such relationships harm clients and students. They betray the fiduciary trust of the individuals involved, as well as the community at large.

They undermine the integrity of the professional involved and the profession as a whole. They are the essence of unjust practices, and they disrespect the dignity and rights of clients and students by exploiting vulnerabilities that impair their protective selfdetermination. This chapter reviews the history and current status of the problem of psychologists’ sexual misconduct (which includes a broad range of behaviors from verbal innuendo to intercourse and sodomy) with those whom they treat, teach, or supervise, as well as with relatives or significant others of current clients. The primary goal of the chapter is to raise awareness and increase understanding of the underlying dynamics and significant consequences of sexualized relationships. Clearly, one intended outcome of the reader’s heightened awareness and fuller understanding is the prevention of sexualized relationships. However, that is not the only aim. The information in this chapter also mitigates less obvious and egregious erosions of psychologists’ ethical responsibilities. Although the vast majority of psychologists will never engage in sexualized relationships, many experience discomfort and anxiety when confronted with issues of sexual feelings and behaviors in their professional relationships. And those reactions may interfere with their ability to recognize, assess, and appropriately manage the myriad of factors involved in their interactions with clients or students and then to make appropriate decisions. Familiarity with the complexities of this topic helps psychologists gain perspective. With that perspective, psychologists are better equipped to

DOI: 10.1037/13271-011 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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handle immediate situations with clients, students, or others, as well as to develop creative ethical training models and empirical research strategies regarding the problem of sexualized relationships. HISTORICAL PERSPECTIVES Sexualized relationships between helping professionals and the clients they treat were identified as unethical more than 23 centuries ago in the Hippocratic oath (Edelstein, 1943). In modern history, further discussion of potential harmful effects on patients of such intimacies arose from various political, professional, and literary sources (see Schoener, 2007) and underscored the presumption of the inherent unethical nature of the conduct. However, many of those discussions stemmed from the obvious—sexual relationships between health professionals and their patients in fact did occur. And that recognition created an undertow of dissonance among professionals that began to swell in the first half of the 20th century. For many years, the primary professional response to actual transgressions of this long-standing code essentially consisted of private disputations among therapists within specific theoretical orientations (Schoener, 1989a). Professional discussion of this issue became more open in the 1970s, triggered by several well-publicized events that exposed the extent, nature, and effects of sexualized relationships between therapists and clients (for a comprehensive review of these events, see Schoener, 1989a). That discussion rose to the level of an organizational response from psychology when APA’s 1973 Task Force on Sex Bias and Role Stereotyping investigated the problem of therapist–patient sex (Bates & Brodsky, 1989). Given the heightened professional and public awareness of both the frequency and the effects of sexual intimacies between therapists and patients, mental health professional organizations struggled with whether to explicitly condemn the conduct. Although the APA Ethics Codes from 1953 to 1977 did not explicitly prohibit psychologist–patient sexual intimacies, such conduct clearly violated several principles and standards in those earlier versions (Canter, Bennett, Jones, & Nagy, 1994). Likely 296

influenced by professional, legal, and public activity, APA adopted the explicit rule in 1977 that “sexual intimacies with clients are unethical” (APA, 1977, Standard 6a, p. 4). All subsequent codes have retained the same absolute prohibition. The current Ethics Code states, “Psychologists do not engage in sexual intimacies with current therapy clients/ patients” (APA, 2010, Standard 10.05, Sexual Intimacies With Current Clients/Patients, p. 13). Nearly a decade passed after the explicit prohibition of sexual intimacies with current clients before psychologists began to address the issue of such relationships with former clients. By the mid-1980s, there was increasing evidence that ethics committees and licensing boards interpreted such relationships as violations of the standards of practice despite the absence of explicit ethical codes (Sell, Gottlieb, & Schoenfeld, 1986). A heated debate erupted among mental health professionals regarding whether sexualized relationships with former clients should be expressly proscribed. Proponents in favor of prohibiting sexual intimacies with a former client contended that the client’s experience of the therapy process (including the client’s transference) and perception of the therapist’s role, as well as the professional responsibilities of the therapist, persisted beyond termination for an indefinite time, extending the roles of therapist and client beyond the precise termination date (Gabbard & Pope, 1989; Vasquez, 1991). Counterarguments centered on three issues: (a) clients’ and therapists’ civil and legal rights as consenting adults to privacy and to freedom of association after the final session of the therapeutic relationship (Bersoff, 1994), (b) the inadequate empirical evidence regarding the persistence of transference and harmful effects on clients of such relationships (Appelbaum & Jorgenson, 1991), and (c) the humanistic perspective that a prohibition of all posttermination sexual relationships would not allow the individual to grow from client to mature personhood and thus would be “infantilizing” and “demeaning” (Gonsiorek & Brown, 1989, p. 293). In 1992, the APA Council of Representatives adopted a new standard that attempted to balance the “protection of vulnerable clients” with the “legal rights of both clients and therapists” (Gonsiorek & Brown, 1989, p. 300). The standard did not prohibit

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all posttermination sexual intimacies between therapists and clients, but it warned psychologists of the likelihood of potential harm to the client and to the public image of the profession, imposed a 2-year waiting period, and listed a number of risk factors that the therapist bore the ultimate burden to rule out before engaging in such a relationship. Following more debate, the standard remained essentially unchanged in subsequent versions of the Ethics Code in 2002 and 2010 (Standard 10.08, Sexual Intimacies With Former Therapy Clients/Patients): (a) Psychologists do not engage in sexual intimacies with former clients/patients for at least two years after cessation or termination of therapy. (b) Psychologists do not engage in sexual intimacies with former clients/patients even after a twoyear interval except in the most unusual circumstances. Psychologists who engage in such activity after the two years following cessation or termination of therapy and of having no sexual contact with the former client/patient bear the burden of demonstrating that there has been no exploitation, in light of all relevant factors, including (1) the amount of time that has passed since therapy terminated; (2) the nature, duration, and intensity of the therapy; (3) the circumstances of termination; (4) the client’s/patient’s personal history; (5) the client’s/patient’s current mental status; (6) the likelihood of adverse impact on the client/patient; and (7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/ patient. (APA, 2010, p. 17) During the height of professional focus on the problem of therapist–patient sexual intimacies, Pope, Levenson, and Schover (1979) expressed concern that psychologists functioning as educators also often carried significant power in their roles that could result in exploitation of their students or supervisees. Subsequent studies indicated

that sexualized relationships between psychologists and their graduate students and supervisees indeed were not rare (particularly for female graduate students) and underscored the negative effects of those involvements (Glaser & Thorpe, 1986; Robinson & Reid, 1985). Concerned professionals argued for an explicit statement in the professional ethics codes prohibiting educator–student and supervisor–supervisee sexualized relationships. Sexualized relationships between students or supervisees in training and psychologists who exercise “evaluative or direct authority” over them were expressly prohibited in the 1992 Ethics Code for the first time (APA, 1992, p. 6). The standard was clarified and expanded in the 2002 Ethics Code revision: “Psychologists do not engage in sexual relationships with students or supervisees who are in their department, agency, or training center or over whom psychologists have or are likely to have evaluative authority” (APA, 2002, Standard 7.07, Sexual Relationships With Students and Supervisees, p. 10). Explicit prohibition of sexual intimacies between psychologists and the relatives or significant others of current therapy clients appeared for the first time in the 2002 Ethics Code. Individuals on the revision task force, many of whom had served on state licensing boards or as expert witnesses in civil cases, noted the harm to clients resulting from sexualized relationships between the therapists and the clients’ spouses or parents. Although such relationships arguably could be violations of standards already in existence in the 1992 Ethics Code, the task force added a more specific statement to the new Ethics Code: “Psychologists do not engage in sexual intimacies with individuals they know to be close relatives, guardians, or significant others of current clients/ patients. Psychologists do not terminate therapy to circumvent this standard” (APA, 2002, Standard 10.06, p. 15, Sexual Intimacies With Relatives or Significant Others of Current Therapy Clients/Patients). FREQUENCIES, CONTRIBUTING FACTORS, AND EFFECTS OF SEXUALIZED RELATIONSHIPS To date, primary methodologies of research investigating frequencies of sexualized relationships 297

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involving psychologists; contributing factors of those relationships; and effects on clients, students, or supervisees have been anonymous surveys and structured interviews. These studies have numerous methodological problems associated with them, including inadequacy of the sample, potential for error or bias in retrospective reports of respondents, variations in the definition of sexual intimacies, and the absence of assessment of prior symptoms or other significant events that may affect the client’s current psychological status. Also, because many psychologists who report sexual contacts with clients or students or supervisees admit to sexual involvement with more than one individual, incidence rates and descriptions of the relationships may be inaccurate if researchers failed to solicit information from respondents about all sexualized relationships (Haspel, Jorgenson, Wincze, & Parsons, 1997). In addition, although reports of licensing board and ethics committee data offer a glimpse at the frequency of psychologists’ sexual misconduct, they greatly underestimate the magnitude of the problem because many clients do not pursue the arduous complaint process (see Chapter 18 of this volume). Given methodological limitations, existing data may suggest only a range of prevalence or effects of sexualized relationships (Williams, 1992).

Frequencies of Sexualized Relationships Studies of the frequencies of therapist–client sexual intimacy have found rates for male psychologists varying between 3.5% (Akamatsu, 1988) and about 16.1% (Holroyd & Brodsky, 1977) and for female psychologists varying between 0.4% (Pope, Tabachnick, & Keith-Spiegel, 1987, as cited in Pope, 1994) and 3.0% (Pope et al., 1979). Several researchers noted that percentages of psychologists who reported sexual intimacies with clients appeared to decrease over the years between the late 1970s and the late 1980s–early 1990s, a time during which professional and public attention was riveted to the problem. Pope (1993) suggested that this apparent trend reflected an actual decline in the conduct because of the influence of the increased professional and public discussion about negative effects on clients, or by the increase in professional and legal negative repercussions for the therapists of 298

such conduct, or both. Another explanation was that, for the same reasons, respondents became more reticent to acknowledge actual sexual intimacies with clients. Given the methodological issues inherent in research, however, Schoener (1991) warned that it was not possible to accurately compare studies conducted over several years or confirm that the data actually reflected a downward trend. And, one of the more recent studies reported the highest frequency for male psychologists (15.8%) and a higher frequency for female psychologists (1.5%) than many previous studies (Jackson & Nuttall, 2001). The frequencies with which psychologists engage in sexualized relationships with former clients again vary across studies with rates for male psychologists ranging from 7.2% (Holroyd & Brodsky, 1977) to 14% (Akamatsu, 1988) and for female psychologists ranging from 0.6% (Holroyd & Brodsky, 1977) to 8% (Pope, 1993). Differences in reported frequencies depend, in part, on how the time since termination was defined (e.g., 3 months posttermination vs. open-ended). As early as 1979, Pope et al. (1979) found that 1% of male respondents reported sexual contact as a student with a psychology teacher, 2% with a clinical supervisor, and 0% with an administrator, compared with 12%, 8%, and 2%, respectively, for female respondents. In their roles as professionals, 18% of male psychologists reported that they engaged in sexual contact as a psychology teacher, 6% as a clinical supervisor, and 4% as an administrator, compared with 4%, 2%, and 1% for female psychologists. In addition, 31% to 48% of respondents reported that they had experienced some form of sexual seduction (Robinson & Reid, 1985) or sexual advances (Glaser & Thorpe, 1986) from one or more of their psychology educators. Furthermore, Glaser and Thorpe reported that 45% of the women reported receiving punitive reactions from the educators when they declined the advances.

Contributing Factors of Sexualized Relationships To understand the dynamics underlying sexualized relationships involving psychologists and to identify possible contributing factors, several authors have

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presented clinical anecdotes, conceptual and theoretical models, and some woefully limited empirical research. However, no one profile of the professional, the other involved (client, former client, student), the interactional process, or the context can adequately explain these complex relationships. Therapists and current clients. The most often cited gender and age pattern for therapist–client sexualized relationships is that of an older (middleage) male therapist with a younger (late 20s, early 30s) female client (Celenza, 2007; Koocher & KeithSpiegel, 2008; Pope, 1990). Other therapist–client gender dyads do occur (male therapist–male client, female therapist–male client, female therapist– female client) at lower frequencies, and some adult therapist–child client sexual contacts have been reported (Bajt & Pope, 1989). Over the years, investigators have reported various personal characteristics of (primarily male) therapists who engage in sexualized relationships with their (primarily female) clients (e.g., Celenza, 2007; Gabbard, 1994; Gonsiorek, 1995a; Gutheil & Brodsky, 2008; Schoener, 1995). Despite differences in methodologies to classify involved therapists, some common themes emerge. Offenders have been described as naïve, inadequately trained, or inexperienced therapists who do not know how to negotiate appropriate boundaries (sexual and other) with clients; lonely, needy, vulnerable, or stressed by situational circumstances who “fall in love” at the time of the misconduct (described as “lovesick” by Gabbard, 1994, and “narcissistically needy” by Celenza, 2007; also see Chapter 7 of this volume); or suffering from impulse control problems, serious personality disorders (e.g., narcissistic, masochistic or self-defeating, or sociopathic), or serious and persistent mental illnesses (e.g., psychoses). Celenza (2007) also noted two common factors in the history of offending therapists: childhood sexualized overstimulation “against a background of emotional deprivation and neglect” (p. 32) and a “family history of covert and sanctioned boundary transgressions” (p. 11). Although Celenza cautioned that “a history of childhood incest in therapist/ transgressors … is not the rule” (2007, p. 69), Jackson and Nuttall (2001) found that a history of

severe childhood sexual abuse (more general than incest) coupled with a high degree of psychological distress was significantly predictive of reports by male therapists of sexual contact with their clients. Observations of male therapists who engage in sexual intimacies with their male clients include many of these same characteristics. In addition, risk for exploitation of male clients may increase for male therapists who are in the process of securing their own sexual identities, including deeply conflicted same-sex feelings (Gonsiorek, 1995b). Far less has been written about female therapists involved in sexualized relationships with their clients, likely because of the relative rarity of such cases. Early assumptions that female therapist– female client involvements typically involved lesbian therapists were contradicted by later observations that a substantial number self-identified as heterosexual and many were married to men. Instead, such involvement may reflect the therapist’s inability to accept or appropriately process her feelings of samesex attraction (Benowitz, 1995; Brown, 1988). The literature contains many cautions against the overgeneralization of the individual characteristics of clients involved in sexualized relationships with their therapists. Their histories, personality features, and presenting problems vary. In addition, distinguishing between preexisting characteristics and consequences of sexualized involvement is difficult (Pope, 1994; Schoener, 1989b). Nonetheless, investigators have suggested that female clients at a higher risk for sexual involvement with their (typically male) therapists may identify with the traditional feminine social role (defined by traits of low inner-directedness, low self-esteem, low acceptance of their own aggression; D’Addario, 1977), suffer from significant disturbances in identity and relationships—often reflected in diagnoses of personality traits or disorders (e.g., histrionic, borderline, dependent; dissociative identity disorder) and substance abuse disorders (Gutheil, 1999; Pope & Bouhoutsos, 1986), or have reported histories of childhood or adult sexual abuse (Gutheil, 1999; Pope & Vetter, 1991). Considerably less is known about male clients involved in sexualized relationships, perhaps because of the difficulty men experience either identifying themselves or being 299

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identified by others as victims (Gonsiorek, 1995b; Gutheil & Brodsky, 2008). Researchers, clients (e.g., Bates & Brodsky, 1989; Noël & Watterson 1992), and therapists (e.g., Pope & Bouhoutsos, 1986; Rutter, 1989) have described the processes that unfold between therapist and client culminating in a sexualized relationship (again, typically between male therapists and female clients). Early research findings indicated that the therapist most often initiated the sexual intimacies with the client, sexual contact typically occurred within the first year of therapy, and therapy sessions continued (as did the client’s payments) in most cases after the initiation (Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1983). Derived from their clinical experience with involved therapists and clients, Pope and Bouhoutsos (1986) described 10 common interactive scenarios, including role trading (the therapist becomes the client, and his needs and desires become a focus of the relationship), sex therapy (the therapist presents sexual intimacy as a valid treatment), and svengali (the therapist creates and exploits an exaggerated dependence for the client). Gonsiorek (1989a, 1995b) and Benowitz (1995) noted that the interactional dynamics between same-sex therapists and clients had both similarities and differences with the classic male therapist– female client dyads. Many of the differences arose from the stereotypic heterosexist role expectations (and homophobia) of society at large and the cultural norms of the gay and lesbian minority community. These influences may have obscured the client’s perception of a same-sex therapist’s sexual contact as exploitative and interfered with the therapist’s ability to accurately distinguish sexual from nurturing feelings. These expectations and norms contributed to the community’s tacit permission for the same-sex dyads to be seen socially in public without suspicion that the relationship was also sexual. Considerable debate about a slippery-slope process between therapist and client has transpired in the literature (more information on boundaries can be found in Chapter 9 of this volume). Simon (1989) and Gutheil and Gabbard (1993) suggested that sexualized relationships between therapists and clients evolve from various boundary crossings and 300

relatively minor violations of appropriate boundaries that slip into a pattern of increasingly serious and harmful violations culminating in sexual contact. Although some research supports the concept of a slippery-slope process between therapists and clients, as well as between educators and students (e.g., Holroyd & Brodsky, 1980; Lamb & Catanzaro, 1998), the concept also is strongly criticized in the literature (e.g., Zur, 2007). Critics argue that the term slippery slope inappropriately reflects a causal connection between all boundary crossings and subsequent boundary violations (such as sexual intimacy with a client), and that it establishes unnecessarily rigid limits on the interactions between therapists and clients, potentially compromising the welfare of the client. Gottlieb and Younggren (2009) concluded recently that the slippery slope exists but is “neither so steep nor as slippery as many fear” (p. 23). Contextual factors that may contribute to therapist–current client sexualized relationships exist at the general sociocultural level, the professional organization level, and the clinical practice setting level. These factors include power patterns of dominance and submission in a patriarchal social structure (Holroyd, 1983); isolation in practice (private practice or practice within a clinic or agency that implicitly or explicitly discourages discussion of difficult topics such as sexual attractions between therapist and client); and the intimate nature of the conversations in the privacy of the office, away from real-life interruptions and concerns (most of the time) that can potentiate romantic fantasies, feelings of sexual attraction, and longings for more intimate connection (Celenza, 2007). Therapists and former clients. Far less is known about factors that contribute to sexualized relationships between therapists and their former clients. As in sexualized relationships with current clients, male therapists engaged in intimate relationships with former clients more often than female therapists. Involved therapists were more often unmarried, believed that such relationships were significantly less unethical and significantly more unlike such relationships with current clients, and rated nonsexual friendships with former clients as ethical

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significantly more often than those not involved (Akamatsu, 1988; Lamb et al., 1994). Brown (1988) observed that female therapists who became involved sexually with their female former clients tended to be in significant emotional distress (including relationship loss), likely contributing to impairment of the therapists’ judgment. Unfortunately, the literature is virtually silent regarding the characteristics of clients involved in sexual intimacies with their former therapists. Educators and students or supervisees. Replicating the pattern observed between therapists and clients involved in sexualized relationships, male professionals more often reported sexual involvement with their students or supervisees than females, female students or supervisees were more likely than males to report such involvement with their educators, and the most common dyad was male educator–female student (other pairings did occur at a lower frequency; e.g., Hammel, Olkin, & Taube, 1996; Lamb, Catanzaro, & Moorman, 2003). It is possible that these statistics at least partly reflected the fact that until recently academic faculty were predominantly male. Although the role of the professional most often involved (e.g., teacher, advisor, supervisor) has varied across studies, Hammel et al. (1996) described the modal sexualized relationship as “between a 30-year-old, unmarried female student in her 2nd year of graduate training with her 40-year-old, married, male clinical supervisor or educator” (p. 94). Personal characteristics of either individual involved in educator–student sexualized relationships are varied. They include naiveté (such that neither fully appreciates the power and intimacy dynamics inherent in the professional relationship); situational vulnerability (e.g., a relationship loss); and serious Axis I or Axis II impairment (e.g., narcissistic, borderline, or dependent personality disorder, paranoid grandiosity, or psychoses; see Conroe & Schank, 1989; Glaser & Thorpe, 1986; Lamb et al., 2003). Conroe and Schank (1989) listed some contextual factors that may contribute to sexualized relationships between psychologists and students or supervisees. The authors cited the increased risk

associated with a closed and enmeshed organizational system (e.g., a psychology department or clinical agency) in which individuals look only to each other for fulfillment of needs, and larger organizational systems (e.g., the university level or agency administration) that fail to acknowledge or resolve such problems.

Effects of Sexualized Relationships Early first-hand accounts of clients have described the intensely negative effects of sexualized relationships with their therapists (e.g., Bates & Brodsky, 1989). Although the first large-scale research project regarding the effects of sexualized relationships noted some rare positive effects on clients (such as improved emotional or sexual relationships status and enhancement of the therapeutic process), Bouhoutsos et al. (1983) reported that 90% suffered some type of harmful consequences, including impairment of their mental health (11% were hospitalized and 1% committed suicide), disruption of their intimate relationships, and marked discomfort reentering therapy with a subsequent therapist. Several clinicians have offered descriptive models of common negative sequelae of therapist–patient sexual intimacies (e.g., Pope & Bouhoutsos, 1986; Schoener, Milgrom, & Gonsiorek, 1989). The symptoms include ambivalence and confusion regarding the sexualized relationship, guilt or shame, feelings of emptiness and isolation, cognitive dysfunction (in attention and concentration—often involving flashbacks, nightmares, and intrusive thoughts and images), identity and interpersonal boundary disturbances (including sexual confusion and deep distrust or fear of others), lability of mood (often including severe depression), suppressed rage, and anxiety. The negative symptoms may meet criteria for a new diagnostic disorder for the client (e.g., major depressive disorder or posttraumatic stress disorder [PTSD]), may reflect an exacerbation of a preexisting disorder, or may represent a reactivation of previously resolved emotional distress resulting from other traumatic events in the client’s life. Other adverse effects may include loss of appropriate diagnosis or treatment (including improper use of hypnosis, medications, or electroconvulsive therapy) and concomitant loss of money paid for inappropriate 301

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care, loss of appropriate referrals for adjunct treatments, confidentiality violations, deception, financial fraud, misuse or abuse of alcohol or drugs, physical harm, and loss of job or inability to perform vocationally or in school (Schoener, 1989b). Although in their early discussions of the effects on clients Pope and Bouhoutsos (1986) proposed a therapist–patient sex syndrome, most experts now agree that clients vary too greatly in their experience of adverse consequences to be defined by a specific syndrome. Although many of the psychological and social sequelae are similar for same-sex dyads, some important differences exist. For example, Gonsiorek (1995b) observed that effects on male clients vary in a complex fashion depending on the clients’ identity and self-acceptance as a gay or heterosexual man. He noted that a specific consequence for some male clients is the “mobilization of internalized homophobia”—that is, self-hatred for being gay (Gonsiorek, 1995b, p. 230). And, Benowitz (1995) stated that given a heterosexist social structure in which women generally are not perceived as the perpetrators, female clients involved in sexualized relationships have difficulty acknowledging to themselves that the relationship was inappropriate. In addition, many fear others’ heterosexist judgments regarding the sexual relationship between two women, leading to heightened feelings of shame and desire to keep the relationship a secret. Negative consequences of therapist–client sexual intimacies extend beyond the client involved, but they still affect the client. Spouses and partners, children, parents, siblings, friends, and coworkers have been identified as “secondary” or “associate victims” (e.g., Luepker, 1995). In addition, the offending therapist’s other clients and colleagues are likely to be adversely affected by suspicion or actual disclosure of such relationships (Celenza, 2007). And, the community at large may respond with distrust of psychologists, mental health professionals in general, and even the professional organizations and regulatory agencies. Research has identified several factors that appear to affect the reported outcome for clients of sexual involvement with their current therapists, including the gender or sexual orientation of the client, the person initiating the relationship, the timing of the 302

client’s assessment of the experience, and the attitudes and practices of the professionals reporting the effects. Vinson (1984) found that female clients experienced greater negative effects than male clients. Gonsiorek (1989a) argued, however, that because of sex-role socialization, males have a difficult time perceiving that they were sexually exploited and, thus, tend to deny or rationalize any adverse consequences. Bouhoutsos et al. (1983) found that clients suffered the most when the therapists initiated sexualized relationship. Clients tended to report greater negative effects of therapist–client intimacies with the passage of time since the relationship began; adverse consequences may be delayed in their presentation or may increase in intensity over time (Lamb & Catanzaro, 1998). Other factors that may affect the quality and intensity of effects on the client include the client’s preexisting psychological status (including ego strength and coping abilities), the client’s history of previous abuse or loss, the intensity of the therapeutic relationship (length, level of disclosure, nature of transference, etc.), and the meaning of the therapeutic relationship to the client (e.g., degree to which the client came to depend emotionally on the therapist, etc.). Although Lamb and Catanzaro (1998) reported that the impact of a posttermination sexualized relationship was rated by the client more positively than that of a relationship beginning before or during therapy, Pope and Vetter (1991) found that at least 80% of the clients (female or male) experienced some harm as a result of their posttermination sexualized relationships with a previous therapist. In general, clinical observations of such clients have noted effects similar in quality and variability to those described for clients involved with their current therapists (e.g., Brown, 1988). Gender also may be associated with the outcome for former clients. Female clients reported lower negative impact of relationships initiated after termination than of relationships with current therapists; male clients reported no difference (Pope & Vetter; 1991). However, this finding may have reflected the low overall report of negative consequences for male clients for either type of relationship. Other factors that may affect outcome include the former client’s preexisting history and psychological status when

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entering and leaving the therapy relationship, the intensity and meaning of the therapeutic relationship, the length of time between the termination of therapy and the beginning of the sexual relationship, the circumstances of the initiation of the sexual relationship, and client needs for continued access to the therapist in the professional role (e.g., for subsequent treatment, for records, etc.). Data regarding the effects of educator–student sexualized relationships are limited. In one study, students more often rated their global assessments of the personal impact of sexualized relationships with their instructors and supervisors as positive than as negative (Lamb & Catanzaro, 1998). Studies to date have not indicated specific positive effects beyond the report that sexual intimacies facilitated the working relationship for some students (Hammel et al., 1996). Reported negative effects included the student’s feeling coerced into the relationship, perceiving that the working relationship was impaired, and experiencing a negative impact on their own professional work (Glaser & Thorpe, 1986; Hammel et al., 1996; Lamb et al., 2003). Additional potential negative effects of educator–student sexualized relationships include the following: disruption of the student’s ability to perform in the class or clinical training placement involving the educator–lover, or in graduate school in general; compromise of the trainee’s development into an independent professional; adverse impact on the student’s relationships with other students or trainees or other educators who become aware of the relationship; impairment of the objectivity of any evaluation of the student’s or trainee’s work by the professional involved or by colleagues who are aware of the relationship; and the potential loss of clinical hours accrued with the involved supervisor toward internship requirements or licensing (Conroe & Schank, 1989). Several researchers have found that over time students or supervisees tended to view sexualized contacts with their educators more negatively and involving more coercion and more interference with the working relationship (Glaser & Thorpe, 1986; Hammel et al., 1996). The student’s history and psychological status at the time of the sexualized relationship, and the emotional or practical significance

of the relationship to the student, likely also are associated with the consequences for the trainee. The consequences of sexualized relationships also can be devastating for offending therapists and educators. Although some therapists will not or cannot acknowledge the negative effects on their clients and students, many experience guilt, remorse, and shame regarding the harm caused by their misconduct. And, some lose spouses, partners, children, parents, friends, and colleagues through separation, divorce, or estrangement. In addition to effects on their personal lives, therapists often face serious consequences of their sexualized involvements on their professional careers. Clients or former clients may file complaints with professional organizations such as the APA Ethics Committee and state licensing boards or seek civil or criminal legal recourse. (More information on the regulation of psychology can be found in Chapter 18 of this volume.) Sexual intimacies with current clients and with former clients within 2 years of termination (and beyond, under particular circumstances) violate the Ethics Code and are grounds for expulsion from the APA. The conduct also violates state licensing laws and can result in the professional’s loss of licensure. In addition, several state laws make sexual misconduct with current or former clients actionable in civil suit for monetary damages and many specifically criminalize therapist–client sexual relationships (Celenza, 2007; Haspel et al., 1997), although the exact definitions, scope, standards, and penalties vary widely from state to state. Educators who engage in sexual intimacies with their students or supervisees may be subject to civil suits based on general federal or state sexual harassment or discrimination statutes (e.g., Title IX), university policy, breach of contract, general tort principals, or breach of fiduciary responsibility (Bisbing, Jorgenson, & Sutherland, 1995). Criminal complaints may arise from allegations of physical assault and rape or child abuse (if the student is a minor). Students and supervisees also have avenues of redress through the school or agency administrative grievance process. And, if the offending psychologist is a member of the APA, the student or supervisee may file a complaint with the Ethics Committee. 303

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INTERVENTION AND PREVENTION Strategies for clinical intervention with those involved in therapist–client sexualized relationships (the literature is relatively silent on any such strategies for students and supervisees and completely absent for relatives of current clients) have been presented in a comprehensive fashion in several sources (e.g., Celenza, 2007; Pope, 1994; Schoener et al., 1989) and are briefly summarized in the following sections. And, although the elimination of sexualized relationships unfortunately is highly unlikely given the complexity of contributing factors, various preventive strategies exist and merit discussion and further development.

Intervention Assessment and treatment of a client who has been sexually involved with a prior therapist tends to be exceptionally difficult and complex. However, such clients often return to therapy, and clinicians should be prepared to engage ethically and beneficially in their treatment (Parsons & Wincze, 1995; Pope, 1994). Sonne and Pope (1991) emphasized that the subsequent therapist must acknowledge and manage common (normal and understandable) reactions to hearing the client’s sexualized experience. A subsequent therapist may experience feelings of disbelief as the client describes a sexualized relationship with a former therapist, with details that may be surprising or even shocking. Such disclosures from the client also may elicit significant feelings of anxiety or embarrassment in the subsequent therapist. Given such reactions, the subsequent therapist may experience a desire to foreclose the topic, deny that the transgression occurred, or if it did, deny that the client suffered any harm. Conversely, understandable reactions in the therapist of indignation and anger may prompt an inappropriately intrusive advocacy; the therapist may push past the client’s common protective, or even ambivalent, feelings about the former therapist and invoke a unilateral agenda to “bring the offender to justice.” The therapist also should be familiar with the variety of assessment and treatment approaches developed to help the client process their sexualized experiences with a prior therapist. Such approaches include multidimensional assessments and development of 304

differential treatment plans (e.g., Luepker, 1989), individual therapy (Celenza, 2007; Pope & Gabbard, 1989), group therapy (e.g., Sonne, 1989) and processing sessions between the client and offending therapist (Schoener & Milgrom, 1989). Interventions with psychologists who have engaged in sexualized relationships are no less difficult or complex. Several assessment strategies and inpatient and outpatient treatment programs for offending therapists have been elaborated in the literature (e.g., Celenza, 2007; Gabbard & Lester, 2002; Gonsiorek, 1989b). A controversial issue has emerged over the years, however, regarding whether therapists who have engaged in sexual intimacies with their clients can be rehabilitated and benefit from treatment to the extent that they can return safely to practice. The controversy has centered on various reports that there was an 80% recidivism rate for therapist offenders (Pope, 1989). Gonsiorek (1995a) and others have argued that those statements were based on an incorrect use of the term “recidivism” and that there is no valid data on the recidivism of offending therapists. As such, it is clinically and professionally unjustifiable to suggest that some cannot be rehabilitated (Gonsiorek, 1995a). A corollary issue, however, is whether any offending therapist should be allowed to return to practice, given the abuse of trust and power inherent in the misconduct and the absence of empirically demonstrated efficacy of rehabilitation efforts (Pope & Vasquez, 2007).

Consumer Education Various resources inform consumers of psychological services regarding the problem of sexualized relationships between clients and their therapists, and they guide and support those who have had such experiences. Print and online aids are available from state licensing boards (e.g., California Department of Consumer Affairs), self-help groups (e.g., Advocate Web and Therapist Exploitation Link Line), and private resources (e.g., psychologist Ken Pope’s website: http://kspope.com).

Training and Support for Psychologists Prevention of sexualized relationships between psychologists and those with whom they work depends,

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in great part, on adequate training programs for those preparing to enter or already participating in the professional practice of psychology. And, in turn, the adequacy of training depends on the openness, rigor, and comprehensiveness with which training institutions confront these difficult topics. Although several programs have been proposed or developed to address the problem of therapist–client sexualized relationships (e.g., Rodolfa, Kitzrow, Vohra, & Wilson, 1990), issues remain whether what exists is sufficient or effective (Housman & Stake, 1999). Furthermore, training regarding educator–student relationships is much less well developed (Celenza, 2007). Although many universities have adopted formal policies regarding such relationships and have instituted formal grievance procedures, the literature contains little regarding actual programs for training administration, faculty, and students or trainees. And, to date, the training literature is silent regarding therapist sexual intimacies with relatives or significant others of current clients. The factors contributing to the occurrence of sexualized relationships between psychologists and their clients, students, and supervisees (and, presumably, current clients’ significant others) are multiple and complex; training strategies should be equally multifaceted. Simply teaching the content of the Ethics Code (and the law) is not sufficient to prevent such unethical behavior (Tjeltveit & Gottlieb, 2010). All too often those who engage in sexualized relationships know that such actions violate professional standards. The misconduct often occurs as a last step in a series of poor (though not necessarily unethical) decisions regarding the maintenance of professional boundaries for which there are no clear rules or guidelines (and, arguably, cannot and should not be; Heyward, 1993; Sonne, 2006). Even if the professional’s mismanagement of boundaries does not result in overt sexualized misconduct, it may degrade the overall quality of the professional relationship. For example, therapists who have not developed a good understanding of their own emotional reactions to particular clients and situational stressors, or a set of skills with which to manage physical contact boundaries with clients, may invoke a rigid stance that no physical contact will

ever occur for fear of losing control in the session. Such an inflexible approach actually may increase the risk of harm to a client by decreasing the genuineness, mutual respect, and connectedness in the therapy relationship (Heyward, 1993). Instead, training programs should emphasize the elements and process of ethical decision making that enable psychologists to respond with flexibility and positive impact as they negotiate interpersonal boundaries with others throughout the professional relationship. Programs should cover a broad range of topics, including the psychologist’s self-awareness (e.g., personal and professional values and attitudes, recognition of identity issues, feelings toward the other in the relationship, and emotional or cognitive impairment), the impact of immediate and distal contextual factors (e.g., the privacy of the office, the isolation of private practice, and the failure of larger systems to acknowledge or sustain professional standards), and the development of skills with which to manage appropriate boundaries. Training in self-assessment, self-understanding, and self-care is critical. Psychologists should understand the distinction between feelings of sexual attraction they may experience toward clients or students and sexualized behavior. Sexual feelings about a client or a supervisee are common and normal reactions, not inherently unethical. Psychologists report, however, that such feelings often cause confusion, anxiety, or guilt, which in turn can negatively affect the process of the professional relationship (Pope & Tabachnick, 1993; Rodolfa et al., 1994). They also should be able to recognize characteristic or transient emotional vulnerabilities that may potentiate involvement in sexual misconduct and how to react appropriately (e.g., obtain formal consultation or personal therapy; Gutheil & Brodsky, 2008). And, psychologists must learn to recognize colleagues and students who evidence problems with maintaining sexual boundaries in their professional relationships and take appropriate actions (e.g., informal discussion with the colleague, referral of the colleague to an assistance program, or formal evaluation of the student) to ensure their awareness and prevention of potential dangers. Psychologists should receive training that increases their awareness and understanding of the 305

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specific social, political, and cultural contextual factors contributing to the process of their work and decisions. For example, beginning in graduate school, programs may help sensitize psychologists about gender and sexual orientation expectations and biases in Western and other cultures. On a more immediate level, psychologists in training and in practice may be exposed to various mechanisms through which they can develop and maintain social connections with other professionals to prevent isolation and loneliness. Psychologists also must learn, develop, and practice behavioral skills with which to manage boundaries with clients, students, and others ethically. Even the most ethically, legally, and clinically sound decisions may be compromised if the professional does not know what to do to enact them. Rather than limiting the training to classroom lectures and supervision discussions, professional ethical decision making should be taught over the course of the psychologist’s career with a variety of teaching methods that include didactic experiences (for understanding ethical decision-making theory and research, and ethical and legal standards of practice) and experiential methods (for exploration of the professional’s or student’s moral and ethical values, ethical sensitivity, emotional reactions, and reasoning and behavioral skills when faced with an ethical dilemma; Handelsman, 1986; Rodolfa et al., 1990). Handelsman and his colleagues proposed an acculturation model for ethics training—a framework that emphasizes the lifelong developmental process through which the professional achieves an “ethical identity” (Handelsman, Gottlieb, & Knapp, 2005; Gottlieb, Handelsman, & Knapp, 2008). Several excellent textbooks present general ethical principles (e.g., Beauchamp & Childress, 2009), ethical principles and standards for psychologists and other mental health professionals (e.g., Koocher & Keith-Spiegel, 2008; Pope & Vasquez, 2007; Welfel, 2009), the current Ethics Code (e.g., Fisher, 2003; Nagy, 2005), and the specific topics of sexual intimacies with clients and students or supervisees (e.g., Celenza, 2007; Pope, 1994). In addition, videotapes presenting various professional boundary dilemmas are available for use in experiential aspects of training (e.g., APA, 2007). Pope and colleagues published two 306

books that include a variety of scenarios for selfexploration and group discussion in courses, workshops, or peer consultation (Pope, Sonne, & Greene, 2006; Pope, Sonne, & Holroyd, 1993). Other sources of support for the concept of career-long ethics training have emerged. For example, according to a recent survey reported in Gottlieb et al. (2008), 22 states require continuing education in ethics and law for psychologists’ licensure renewal (APA, 2006). A number of valuable workshops, conference presentations, and online education programs have been developed that address sexualized relationships. Finally, institutional and organizational support for those psychologists confronted with difficult ethical dilemmas or personal difficulties must be expanded. Although some consultation resources are available through malpractice insurance agencies, professional organizations, and private attorneys to assist psychologists with complex ethical decision-making issues, psychologists often are unaware of these resource or reticent or unable to access them. And, formal intervention programs designed to help psychologists suffering from serious psychological problems or situational crises need further definition and development. Most important, psychologists must foster a professional culture that encourages and provides easier access to meaningful consultation and intervention before the professional engages in unethical conduct. CONCLUSION The problem of sexualized relationships between psychologists and those with whom they work is no longer a “problem with no name” (Davidson, 1977, p. 43). The profession has acknowledged that such relationships do indeed occur, and they can cause substantial harm to the individuals involved and to the larger communities and social systems surrounding the relationship. The current Ethics Code includes explicit prohibitions against sexual intimacies with current clients, former clients (within 2 years of termination and then only under very specific circumstances for which the therapist holds the burden of proof), current clients’ significant others, and students or supervisees. And models of ethics

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training (both general and specific to the problem of sexualized relationships) have expanded beyond single didactic courses and informal teaching during a student’s clinical experiences. Psychologists cannot become complacent, however. Egregious violations of the ethical proscriptions still occur, and consumer education and professional training programs (particularly those regarding therapist–former client, therapist–client’s significant other, and educator–student intimacies) and support systems need further development. In addition, empirical research regarding the process of ethical decision making regarding such relationships is sorely lacking. Psychologists must continue to engage in creative and collaborative efforts to fulfill their primary obligation to clients, students and supervisees, colleagues, and the public to work ethically.

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D’Addario, L. (1977). Sexual relationship between female clients and male therapists. Unpublished doctoral dissertation, California School of Professional Psychology, San Diego. Edelstein, L. (1943). The Hippocratic oath: Text, translation, and interpretation. Baltimore, MD: Johns Hopkins University Press. Fisher, C. B. (2003). Decoding the ethics code: A practical guide for psychologists. Thousand Oaks, CA: Sage. Gabbard, G. O. (1994). Psychotherapists who transgress sexual boundaries with patients. Bulletin of the Menninger Clinic, 58(1), 124–135. Gabbard, G. O., & Lester, E. P. (2002). Boundaries and boundary violations in psychoanalysis. Washington, DC: American Psychiatric Publishing. Gabbard, G. O., & Pope, K. S. (1989). Sexual intimacies after termination: Clinical, ethical, and legal aspects. In G. O. Gabbard (Ed.), Sexual exploitation in professional relationships (pp. 115–127). Washington, DC: American Psychiatric Press. Glaser, R. D., & Thorpe, J. S. (1986). Unethical intimacy: A survey of sexual contact and advances between psychology educators and female graduate students. American Psychologist, 41, 43–51. doi:10.1037/0003066X.41.1.43 Gonsiorek, J. C. (1989a). Sexual exploitation by psychotherapists: Some observations on male victims and sexual orientation issues. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 113–119). Minneapolis, MN: Walk-In Counseling Center. Gonsiorek, J. C. (1989b). Working therapeutically with therapists who have become sexually involved with clients. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 421–433). Minneapolis, MN: Walk-In Counseling Center. Gonsiorek, J. C. (1995a). Assessment for rehabilitation of exploitative health care professionals and clergy. In J. C. Gonsiorek (Ed.), A breach of trust: Sexual exploitation by health care professionals and clergy (pp. 145–162). Thousand Oaks, CA: Sage. Gonsiorek, J. C. (1995b). Boundary challenges when both therapist and client are gay males. In J. C. Gonsiorek (Ed.), A breach of trust: Sexual exploitation by health care professionals and clergy (pp. 225–233). Thousand Oaks, CA: Sage. Gonsiorek, J. C., & Brown, L. S. (1989). Post therapy sexual relationships with clients. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement 308

with clients: Intervention and prevention (pp. 289–301). Minneapolis, MN: Walk-In Counseling Center. Gottlieb, M. C., Handelsman, M. M., & Knapp, S. (2008). Some principles for ethics education: Implementing the acculturation model. Training and Education in Professional Psychology, 2, 123–128. doi:10.1037/1931-3918.2.3.123 Gottlieb, M. C., & Younggren, J. N. (2009). Is there a slippery slope? Considerations regarding multiple relationships and risk management. Professional Psychology: Research and Practice, 40, 564–571. doi:10.1037/a0017231 Gutheil, T. G. (1999). Issues in civil sexual misconduct litigation. In J. D. Bloom, C. C. Nadelson, & M. T. Notman (Eds.), Physician sexual misconduct (pp. 3–17). Washington, DC: American Psychiatric Press. Gutheil, T. G., & Brodsky, A. (2008). Preventing boundary violations in clinical practice. New York, NY: Guilford Press. Gutheil, T. G., & Gabbard, G. O. (1993). The concept of boundaries in clinical practice: Theoretical and riskmanagement dimensions. The American Journal of Psychiatry, 150, 188–196. Hammel, G. A., Olkin, R., & Taube, D. O. (1996). Student-educator sex in clinical and counseling psychology doctoral training. Professional Psychology: Research and Practice, 27, 93–97. doi:10.1037/07357028.27.1.93 Handelsman, M. M. (1986). Problems with ethics training by “osmosis.” Professional Psychology: Research and Practice, 17, 371–372. doi:10.1037/0735-7028. 17.4.371 Handelsman, M. M., Gottlieb, M. C., & Knapp, S. (2005). Training ethical psychologists: An acculturation model. Professional Psychology: Research and Practice, 36, 59–65. doi:10.1037/0735-7028.36.1.59 Haspel, K. C., Jorgenson, L. M., Wincze, J. P., & Parsons, J. P. (1997). Legislative intervention regarding therapist sexual misconduct: An overview. Professional Psychology: Research and Practice, 28, 63–72. doi:10.1037/0735-7028.28.1.63 Heyward, C. (1993). When boundaries betray us. Cleveland, OH: Pilgrim. Holroyd, J. C. (1983). Erotic contact as an instance of sex-biased therapy. In J. Murray & P. R. Abramson (Eds.), Bias in psychotherapy (pp. 285–308). New York, NY: Praeger. Holroyd, J. C., & Brodsky, A. M. (1977). Psychologists’ attitudes and practices regarding erotic and nonerotic physical contact with patients. American Psychologist, 32, 843–849. doi:10.1037/0003-066X.32.10.843 Holroyd, J. C., & Brodsky, A. M. (1980). Does touching patients lead to sexual intercourse? Professional

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Psychology, 11, 807–811. doi:10.1037/0735-7028. 11.5.807 Housman, L. M., & Stake, J. E. (1999). The current state of sexual ethics training in clinical psychology: Issues of quantity, quality, and effectiveness. Professional Psychology: Research and Practice, 30, 302–311. doi:10.1037/0735-7028.30.3.302 Jackson, H., & Nuttall, R. L. (2001). A relationship between childhood sexual abuse and professional sexual misconduct. Professional Psychology: Research and Practice, 32, 200–204. doi:10.1037/0735-7028. 32.2.200 Koocher, G. P., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press. Lamb, D. H., & Catanzaro, S. J. (1998). Sexual and nonsexual boundary violations involving psychologists, clients, supervisees, and students: Implications for professional practice. Professional Psychology: Research and Practice, 29, 498–503. doi:10.1037/0735-7028 .29.5.498 Lamb, D. H., Catanzaro, S. J., & Moorman, A. S. (2003). Psychologists reflect on their sexual relationships with clients, supervisees, and students: Occurrence, impact, rationales, and collegial intervention. Professional Psychology: Research and Practice, 34, 102–107. doi:10.1037/0735-7028.34.1.102 Lamb, D. H., Strand, K. K., Woodburn, J. R., Buchko, K. J., Lewis, J. T., & Kang, J. R. (1994). Sexual and business relationships between therapists and former clients. Psychotherapy: Theory, Research, Practice, Training, 31, 270–278. doi:10.1037/h0090230 Luepker, E. T. (1989). Clinical assessment of clients who have been sexually exploited by their therapists and development of differential treatment plans. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 159–176). Minneapolis, MN: Walk-In Counseling Center. Luepker, E. T. (1995). Helping direct and associate victims to restore connections after practitioner sexual misconduct. In J. C. Gonsiorek (Ed.), Breach of trust: Sexual exploitation by health care professionals and clergy (pp. 112–128). Thousand Oaks, CA: Sage. Nagy, T. F. (2005). Ethics in plain English: An illustrative casebook for psychologists (2nd ed.). Washington, DC: American Psychological Association. Noël, B., & Watterson, K. (1992). You must be dreaming. New York, NY: Poseidon Press. Parsons, J. P., & Wincze, J. P. (1995). A survey of client–therapist sexual involvement in Rhode Island as reported by subsequent treating therapists.

Professional Psychology: Research and Practice, 26, 171–175. doi:10.1037/0735-7028.26.2.171 Pope, K. S. (1989). Therapists who become sexually intimate with a patient: Classifications, dynamics, recidivism, and rehabilitation. The Independent Practitioner, 9, 28–34. Pope, K. S. (1990). Therapist–patient sexual involvement: A review of the research. Clinical Psychology Review, 10, 477–490. doi:10.1016/0272-7358(90)90049-G Pope, K. S. (1993). Licensing disciplinary actions for psychologists who have been sexually involved with a client: Some information about offenders. Professional Psychology: Research and Practice, 24, 374–377. doi:10.1037/0735-7028.24.3.374 Pope, K. S. (1994). Sexual involvement with therapists: Patient assessment, subsequent therapy, forensics. Washington, DC: American Psychological Association. doi:10.1037/10154-000 Pope, K. S. (n.d.). Sexual issues in psychology training and practice. Retrieved from http://www.kspope.com/ sexiss/index.php Pope, K. S., & Bouhoutsos, J. (1986). Sexual intimacies between therapists and patients. Westport, CT: Praeger. Pope, K. S., & Gabbard, G. O. (1989). Individual psychotherapy for victims of therapist–patient sexual intimacy. In G. O. Gabbard (Ed.), Sexual exploitation in professional relationships (pp. 89–100). Washington, DC: American Psychiatric Press. Pope, K. S., Levenson, H., & Schover, L. R. (1979). Sexual intimacy in psychology training: Results and implications of a national survey. American Psychologist, 34, 682–689. doi:10.1037/0003066X.34.8.682 Pope, K. S., Sonne, J. L., & Greene, B. (2006). What therapists don’t talk about and why: Understanding taboos that hurt us and our clients. Washington, DC: American Psychological Association. doi:10.1037/11413-000 Pope, K. S., Sonne, J. L., & Holroyd, J. (1993). Sexual feelings in psychotherapy: Explorations for therapists and therapists-in-training. Washington, DC: American Psychological Association. doi:10.1037/10124-000 Pope, K. S., & Tabachnick, B. G. (1993). Therapists’ anger, hate, fear and sexual feelings: National survey of therapists’ responses, client characteristics, critical events, formal complaints and training. Professional Psychology: Research and Practice, 24, 142–152. doi:10.1037/0735-7028.24.2.142 Pope, K. S., Tabachnick, B. G., & Keith-Spiegel, P. (1987). Ethics of practice: The beliefs and behaviors of psychologists as therapists. American Psychologist, 42, 993–1006. doi:10.1037/0003-066X.42.11.993 309

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Pope, K. S., & Vasquez, M. J. T. (2007). Ethics in psychotherapy and counseling: A practical guide (3rd ed.). San Francisco, CA: Jossey-Bass. Pope, K. S., & Vetter, V. A. (1991). Prior therapist-patient sexual involvement among patients seen by psychologists. Psychotherapy: Theory, Research, Practice, Training, 28, 429–438. doi:10.1037/0033-3204.28.3.429 Robinson, W. L., & Reid, P. T. (1985). Sexual intimacies in psychology revisited. Professional Psychology: Research and Practice, 16, 512–520. doi:10.1037/0735-7028.16.4.512 Rodolfa, E. R., Hall, T., Holms, V., Davena, A., Komatz, D., Antunez, M., & Hall, A. (1994). The management of sexual feelings in therapy. Professional Psychology: Research and Practice, 25, 168–172. doi:10.1037/0735-7028.25.2.168 Rodolfa, E. R., Kitzrow, M., Vohra, S., & Wilson, B. (1990). Training interns to respond to sexual dilemmas. Professional Psychology: Research and Practice, 21, 313–315. doi:10.1037/0735-7028.21.4.313 Rutter, P. (1989). Sex in the forbidden zone: When men in power—Therapists, doctors, clergy, teachers, and others—Betray women’s trust. New York, NY: St. Martin’s. Schoener, G. R. (1989a). A look at the literature. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 11–50). Minneapolis, MN: Walk-In Counseling Center. Schoener, G. R. (1989b). The assessment of damages. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 133–145). Minneapolis, MN: Walk-In Counseling Center. Schoener, G. R. (1991, January). Therapist-client sexual involvement—Incidence and prevalence. Minnesota Psychologist, 40(1), 14–15. Schoener, G. R. (1995). Assessment of professionals who have engaged in boundary violations. Psychiatric Annals, 25, 95–99. Schoener, G. R. (2007). Foreword. In A. Celenza, Sexual boundary violations: Therapeutic, supervisory, and academic contexts (pp. xiii–xxi). Lanham, MD: Jason Aronson. Schoener, G. R., & Milgrom, J. H. (1989). Processing sessions. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists’ sexual involvement with clients: Intervention and prevention (pp. 345–358). Minneapolis, MN: Walk-In Counseling Center. Schoener, G. R., Milgrom, J. H., & Gonsiorek, J. C. (1989). Therapeutic responses to clients who have

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CHAPTER 12

INFORMED CONSENT TO PSYCHOTHERAPY (EMPOWERED COLLABORATION) Andrew M. Pomerantz

Like few other topics in the ethics of psychology, informed consent illustrates the range between the ethical floor and the ethical ceiling. It is possible to view informed consent as a mandate, a chore to be completed near the outset of psychotherapy to avoid legal trouble and ensure minimal adherence to the ethical standards set forth in the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010). Yet it is equally possible to view informed consent as a golden opportunity to strive for the highest level of ethical ideals, which in turn may maximize positive clinical outcome. The latter of these two approaches is, deservedly, receiving increasing attention in recent years (e.g., Anderson & Handelsman, 2010; Fisher & Oransky, 2008; Knapp & VandeCreek, 2006). This chapter takes a floor-to-ceiling approach to reviewing the empirical and theoretical research on informed consent. That is, it will discuss minimal standards of informed consent that psychologists often have chosen to employ (the ethical floor), but ultimately it emphasizes the ways in which the principle of informed consent can inspire psychologists to endeavor toward the highest possible level of ethical behavior (the ethical ceiling). As described in other chapters of this handbook, numerous terms have been used to describe these two discrepant perspectives on psychology ethics. The ethical floor approach has been called remedial ethics, medicolegal ethics, or simply minimum standards, while the ethical ceiling has been called positive ethics, active ethics, or participatory ethics (Knapp & VandeCreek, 2006). Language regarding

informed consent in particular has reflected a similarly dichotomous view of the concept, especially with terms such as empowered collaboration, shared decision making, and informed choices appearing in recent years as supplements to the more basic term informed consent, suggestive of the ceiling as opposed to the floor of this ethical issue (e.g., Barnett, Wise, Johnson-Greene, & Bucky, 2007; Wise, 2007). The emergence of these new terms reflects an important movement regarding informed consent in psychotherapy that will be explored throughout this chapter: More than they have in the past, scholars and clinicians are recognizing that the informed consent process has a tremendous upside. Viewed as an aspiration rather than a directive, it undoubtedly can help rather than hinder the therapy process. The Ethics Code, of course, includes both aspiration- and directive-based sections (APA, 2010). The directives are listed as standards, many of which explicitly mention informed consent. The standards most relevant to informed consent to psychotherapy are Standards 3.10 and 10.01 (although several others, including Standard 3.07, Third-Party Requests for Services; Standard 4.03, Recording; and Standard 6.02, Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work, are relevant as well). Standard 3.10, Informed Consent, states that psychologists should “obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons” (APA, 2010, p. 6), seek the assent of individuals not legally capable of giving informed consent, explain the specifics of any

DOI: 10.1037/13271-012 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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mandated or court-ordered services, and document their written and oral informed consent processes. Standard 10.01, Informed Consent to Therapy, instructs psychologists to “inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers,” admit the “developing nature” and alternatives to any “treatment for which generally recognized techniques and procedures have not been established” (APA, 2010, p. 13), and explain when appropriate that the clinician is a trainee under supervision. For the sake of completeness, these two

ethical standards are included in their entirety in Exhibit 12.1. In addition to its specific, enforceable standards, the Ethics Code (APA, 2010) also includes five general principles to which psychologists should aspire. (The enforceable standards and the general principles can be thought to represent the ethical floor and ceiling, respectively; Fisher, 2009; Knapp & VandeCreek, 2006). Although none mention informed consent specifically, several of these general principles are nonetheless quite relevant to informed consent, particularly from the perspective of positive ethics (Anderson & Handelsman, 2010). For example, Principle B, Fidelity and Responsibility, includes the statement, “Psychologists establish relationships of

Exhibit 12.1 Ethical Standards Especially Relevant to Informed Consent to Psychotherapy 3.10 Informed Consent (a) When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code. (See also Standards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to Therapy.) (b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare. (c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. (d) Psychologists appropriately document written or oral consent, permission, and assent. (See also Standards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to Therapy.) 10.01 Informed Consent to Therapy (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/ patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers. (See also Standards 4.02, Discussing the Limits of Confidentiality, and 6.04, Fees and Financial Arrangements.) (b) When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation. (See also Standards 2.01e, Boundaries of Competence, and 3.10, Informed Consent.) (c) When the therapist is a trainee and the legal responsibility for the treatment provided resides with the supervisor, the client/ patient, as part of the informed consent procedure, is informed that the therapist is in training and is being supervised and is given the name of the supervisor.

Note. From Ethical Principles of Psychologists and Code of Conduct (2002, Amended June 1, 2010), by the American Psychological Association, 2010, Washington, DC: Author. Copyright 2010 by the American Psychological Association.

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trust with those with whom they work” (APA, 2010, p. 3). The informed consent process offers a unique opportunity to initiate and build such trust, as the psychologist makes ongoing efforts to keep the client abreast of what may be ahead rather than leaving the client in the dark. Principle A, Beneficence and Nonmaleficence, states, “Psychologists strive to benefit those with whom they work and take care to do no harm” (APA, 2010, p. 3). As I illustrate throughout this chapter, the informed consent process can accomplish both of these. At the floor level, it can ensure that clients will not be harmed by entering into treatments about which they were not adequately informed, and at the ceiling level, it can maximize the benefit that clients ultimately receive from therapy, primarily via the establishment of a strong therapeutic alliance. Finally, Principle E, Respect for People’s Rights and Dignity, begins, “Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination” (APA, 2010, p. 3). The notion of self-determination is particularly relevant to the informed consent process; indeed, it represents a core underlying value on which informed consent is fundamentally based. Unfortunately, some research suggests that many clinicians do not approach informed consent with quite so high a level of aspiration. In fact, too often, they may focus merely on meeting the bare minimum requirement for obtaining informed consent, which often translates to getting the client to sign a standardized form. To illustrate, Lidz et al. (1984) studied how psychiatrists obtained informed consent. Few other empirical studies before or since have been as extensive or large scale. The authors spent thousands of hours over a 4-year period directly observing the interactions between staff and patients in a psychiatric hospital with the goal of learning how staff actually handle informed consent The setting was a department of psychiatry in the medical center of a major university. It housed multiple units, including an outpatient clinic, an admissions unit, and a research ward. Through naturalistic observation, the researchers saw discussions on informed consent, viewed the forms patients received, saw how these forms were (or were not) explained, and interviewed patients to

assess their understanding of their treatment. Their findings were hardly encouraging, especially for those hoping that the mental health professionals would use informed consent as an opportunity to strive for the ethical ceiling. They found that the clinicians typically used the informed consent process solely as a means for compliance. Actually informing clients was of minimal importance, as reflected by haphazard and casual procedures for obtaining or even discussing the issue of consent. Moreover, the information that clinicians provided did not appear to have a meaningful impact on clients’ decision-making processes. To summarize, nowhere in the Hospital did we see decisionmaking and communication patterns that looked very much the way they were supposed to look under the ethical doctrine of informed consent. We saw only a few examples of either staff members or patients behaving as though they expected patients to be major participants in the decisionmaking or to have good reason to know most of the information necessary to make rational decisions … patients rarely seemed to understand the treatment issues well enough to make well-informed decisions. (Lidz et al., 1984, p. 8) Berg, Appelbaum, Lidz, and Parker (2001) lamented this attitude toward informed consent in their description of medical residents that may describe some members of the psychology profession as well. They wrote, Currently, physicians in residency training too frequently learn from what they see around them that informed consent is a nuisance, an alien imposition of the legal system that must be tolerated because of possible legal consequences, but that can be dealt with in relatively mechanical ways, such as making sure patients sign consent forms before major procedures. They learn that patients must be listened to early in the evaluation process because they may be an 313

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important source of valuable diagnostic information, but that once the physician has made a diagnosis and decided on a plan of action, the patient’s role goes no further than pro forma ratification of the physician’s choice. They are taught by example that a system of medical care that minimizes doctor-patient interaction is acceptable, and that given economic pressures (e.g., demands for increased productivity as a result of reductions in payment by managed care organizations and the government), such minimization may even be desirable. There is no hope for informed consent as an ethical doctrine or even as a meaningful set of legal rules unless this situation changes. (p. 322) Thankfully, attitudes toward informed consent appear to be changing, at least if recent professional discourse is any indication. Numerous books, chapters, and articles published in the past 10 to 15 years indicate that the psychology profession is recognizing the value of informed consent, particularly as an aspirational ideal rather than a rote task or an impediment. In the rest of this chapter, I explore numerous questions regarding the informed consent process, including why it should be obtained, what it should include, how it should be obtained, when it should take place, and who it should involve. As we consider these questions, we should keep in mind that the term informed consent, as applied to psychotherapy, actually incorporates a number of discrete tasks, each of which will be discussed to some extent and at various points: presenting information to the client about the proposed treatment, ensuring that the client understands the information, determining that the client has the capacity to consent, obtaining the client’s voluntary agreement, and documenting this agreement (Lidz et al., 1984). A note before proceeding: Informed consent, of course, is a process important to many activities within professional psychology, including research (Stanley & Galietta, 2006) and clinical assessment (Goldfinger & Pomerantz, 2010). Although the concepts covered in this chapter may be relevant to 314

those activities to some extent, its focus will be informed consent to psychotherapy. Because informed consent is a cornerstone of psychology (and other aspects of our lives), many chapters in this handbook feature some discussion of informed consent as it relates to specific topics: confidentiality and privacy notices (Chapter 13 of this volume), billing and other business issues (Chapter 17 of this volume), psychological testing and assessment (Volume 2, Chapter 4), forensic issues (Volume 2, Chapter 6), telehealth (Volume 2, Chapter 10), participation in psychological research (Volume 2, Chapter 16), and vulnerable research participants (Volume 2, Chapter 17), among others. WHY SHOULD INFORMED CONSENT BE OBTAINED? Some psychologists may feel that the obvious answer to “Why obtain informed consent?” is simply “because I have to—the ethical code requires it.” Such an approach to informed consent may meet minimal standards but reflects a poor appreciation of the rationale behind informed consent and the potential benefits of devoting more attention to this process. Knowledge of the history of informed consent, including its prepsychotherapy roots, may offer the opportunity for improvements in practice. Historically, informed consent to psychotherapy stems from informed consent to medical procedures. It originally was used for surgeries and similarly invasive procedures in the early 1900s, and then it was used increasingly for other discrete medical procedures as the century progressed. Only more recently has it been extended to psychotherapy (Barnett, 2007; Bednar, Bednar, Lambert, & Waite, 1991; Fallon, 2006). Before 1900, physicians generally did not obtain informed consent, and they did not have any obligation to do so. Instead, their approach to the doctor–patient relationship essentially was paternalistic and formed on the assumption that the physician definitively knew what was in patients’ best interests and that patients simply should passively accept these decisions (Welfel, 2006). As described by Pope and Vasquez (2007), Historically, the health care professions took a fairly arrogant and authoritarian

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position in regard to what the patient needed. The Hippocratic Oath lacked the principle of informed consent. The patient obviously did not have sufficient training and knowledge, let alone objectivity, to determine what procedures were indicated. (p. 137) Far fewer legal cases have emerged from informed consent issues in psychotherapy than medical procedures (Bednar et al., 1991), but two particular legal cases, Canterbury v. Spence (1972) and Osheroff v. Chestnut Lodge (1985), represent important points in the increasing application of informed consent to psychotherapy. In Canterbury v. Spence, a patient seeking relief from back pain underwent surgery but was never told the dangers of the surgery. Subsequently, the patient developed paralysis of the bowels, developed urinary incontinence, and had to walk with crutches. The patient sued alleging, among other things, that he should have been told the risks of the surgery. The ruling in Canterbury v. Spence (1972), which favored the patient, included the statement that “every human being, and thus every medical patient, of adults years and sound mind has the right to determine what shall be done with his body” (p. 792), and that every patient has a right to be informed “in nontechnical terms as to what is at stake” (p. 793). This finding signified a shift in the discipline of medicine, which ultimately affected psychotherapy as well, by which professionals were required to defer to patients in treatment decisions. Osheroff v. Chestnut Lodge (1985) involved Rafael Osheroff, a successful physician, seeking inpatient treatment for depression and narcissistic personality disorder at Chestnut Lodge in Maryland in 1979. For his entire stay at Chestnut Lodge, he received only individual psychodynamic psychotherapy. He did not receive any medication, even when his condition worsened and his family urged the treating mental health professionals to consider other treatment methods beyond what he had been receiving. After 7 months with no progress, he transferred to an inpatient facility in Connecticut and was prescribed psychiatric medication. Within a few weeks, he had recovered sufficiently to leave the hospital

and resume his own medical practice. In 1982, Osheroff sued Chestnut Lodge. In part, his claim focused on his lack of information and choice regarding his treatment. If he had known that Chestnut Lodge planned to treat him as they did, Osheroff might have chosen another facility (one more willing to prescribe medication) from the start. Osheroff received an out-of-court settlement in this case, preventing the case from formally setting legal precedent, but it certainly drew attention to the importance of informed consent to psychotherapy (Fallon, 2006). In the years since the Osheroff case, informed consent to psychotherapy undoubtedly has evolved from an overlooked or optional task to one that is justifiably obligatory. Moreover, especially in the 2000s, the tenor of the relationship between psychotherapist and client seems to have shifted away from paternalism and toward the promotion of autonomous decision making (Fisher & Fried, 2003). Fisher (2009, p. 6, 121) labeled this shift as a “sea change” encompassing both legal decisions and social mores. The promotion of autonomous decision making is just one of a list of higher order values that have risen in prominence in our society in recent years and that provide fertile ground for the growing recognition of informed consent as an essential component of psychotherapy (Fisher & Oransky, 2008; Strom-Gottfried, 2007). Informed consent emerges from “deeply held beliefs about the inviolability of individual choice” (Grisso & Appelbaum, 1998, p. 14). It “reflects respect for individual freedom, autonomy, and dignity” (Pope & Vasquez, 2007, p. 135) and “is the progeny of one of the most deep-seated principles of democratic societies: the right of self-determination” (Bednar et al., 1991, p. 133). According to this set of values, it can be argued that informed consent is among the most basic human entitlements: Informed consent is an essential, internationally recognized, and legally enforceable human right. Like the Magna Carta, the Declaration of Independence, and the U.S. Bill of Rights, the 20th century’s Nuremburg Code authoritatively asserted fundamental human rights—most 315

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notably the right to informed consent. (Barden, 2001, p. 160) Whether or not informed consent to psychotherapy is unquestionably an undeniable human right, it is clear that the increased attention that it has received in recent decades correlates with a surge in societal values consistent with the notion that people who are considering or have begun psychotherapy deserve the opportunity to know about that psychotherapy, as well as its alternatives, and to decide based on their own self-interests rather than having those decisions made for them by others. Some have compared this client role to that of a consumer, another role with some basis in entitlement and self-determination, especially in recent years. For example, Ford (2006) encouraged clients to “act as consumers (which they are)” and noted that if they are “very careful” about choosing clothes and appliances, they should “certainly be just as discriminating when deciding how they want to deal with their life problems and with whom they feel comfortable discussing their innermost feelings” (p. 100). Values such as autonomy, self-determination, and a consumerist right to choice provide a philosophical backdrop for the emergence of informed consent to psychotherapy. But there are also pragmatic reasons for informed consent. For example, informed consent may be necessary to enlighten clients who are naïve or ignorant about the psychotherapy process, especially clients whose cultural background provides them little understanding of typical forms of Western psychotherapy. Indeed, some clients at the outset of therapy have a limited understanding of the most basic tenets of psychotherapy (Fisher & Oransky, 2008; Ford, 2006; Pedersen, Draguns, Lonner, & Trimble, 2008), such as how it may differ from medical or other forms of treatment. Much of the information (or misinformation) held by naïve or ignorant clients may be based on media portrayals of psychotherapy, in which case the informed consent process serves the purpose of correcting misconceptions rather than replacing ignorance with information (Orchowski, Spickard, & McNamara, 2006; Zuckerman, 2008). One specific misconception clients often bring to psychotherapy is that the notion that confidentiality is 316

absolute. Miller and Thelen (1986) found that before being informed otherwise, 69% of prospective clients believed there were no exceptions at all to therapist–client confidentiality, when in fact state laws mandate such exceptions in a variety of situations. Thus, the informed consent process can ensure that clients have an accurate grasp of some of the ground rules of psychotherapy. In the process, the therapist can be informed as well, particularly about the particular assumptions of each client regarding psychotherapy (O’Neill, 1998). The informed consent process also encourages therapists to reflect on their practices (Beauchamp & Childress, 2009). A prerequisite to communicating information to clients is to develop that information in the first place. As such, creating and exercising an informed consent process helps therapists think through the various aspects of their practices, in the process clarifying the process for themselves more thoroughly than it might have been if informed consent was not sought. Informed consent can provide the pragmatic benefit of creating a good impression of the therapist in the eyes of the client (Barnett, 2007; Fisher & Oransky, 2008). An empirical study of the by-products of informed consent found that, simply put, prospective clients liked therapists who engaged them in a thorough informed consent procedure (Sullivan, Martin, & Handelsman, 1993). Participants valued the information, but they also saw the therapist as more trustworthy and expert than therapists who did not go through a similar informed consent procedure. Additional research suggests that when the informed consent process is personalized for the client, the therapist is viewed more positively (Wagner, Davis, & Handelsman, 1998). In general, an informed consent process, even when it involves reading and signing forms, does not necessarily hurt the client’s impression of the therapist; more typically, it enhances the client’s impression (Handelsman, 1990). The positive first impression facilitated by the informed consent process can enhance the therapeutic relationship, which in turn can enhance therapy outcome (Anderson & Handelsman, 2010; Barnett, 2007; Fisher & Oransky, 2008). In other words, a good informed consent process can enable clients to

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experience the therapist as an ally who genuinely cares about them and works collaboratively toward shared goals. These qualities in a therapeutic relationship have repeatedly been associated with positive outcome in psychotherapy (e.g., Duncan, Miller, Wampold, & Hubble, 2010; Wampold, 2001). A well-conducted informed consent process allows clients to “become less anxious, follow the treatment plan, recover more quickly, and be more alert to unintended negative consequences of the treatment” (Pope & Vasquez, 2007, p. 146). In fact, it can be argued that a successful informed consent process can mirror successful psychotherapy itself: “Proponents of informed consent for the psychotherapies believe that the process parallels the very goals of psychotherapy that encourage the client’s autonomy and control over his/her life” (Fallon, 2006, pp. 433–434). When clients begin to obtain this sense of autonomous decision making in the informed consent process, it can contribute to a greater sense of autonomy in other aspects of the clients’ lives (Zuckerman, 2008). Regarding informed consent to psychotherapy, there are clearly numerous philosophical and pragmatic answers to the question of why, but our discussion would be incomplete without some consideration of the question of why not. That is, numerous authors and clinicians have, over the years, put forth arguments that informed consent is a detriment to the therapy process and should be avoided or minimized. Among these arguments is the notion that discussion of limitations or risks of therapy may cause clients to feel uneasy about the therapy and decide not to pursue it (Bednar et al., 1991; Strom-Gottfried, 2007); clients will make inferior decisions to those of therapists if given the opportunity (Strom-Gottfried, 2007); the forms used in the informed consent process can deter or otherwise make a negative impression on some clients (Handelsman, 1990); and some features of psychotherapy, including psychoanalytic mainstays such as transference and free association as well as paradoxical techniques in which the therapist suggests the opposite of the actual intended behavior or benefit, can be spoiled if the client knows ahead of time why and how the therapist will use them (Brown & Slee, 1986; Croarkin, Berg, & Spira,

2003; Rutherford & Roose, 2006; Widiger & Rorer, 1984). The rise of informed consent to psychotherapy in recent decades, as well as the recognition of the benefits it can provide, have dispelled some of these doubts about informed consent, as have numerous empirical studies by. Handelsman (1990), Sullivan et al. (1993), and Wagner et al. (1998). WHAT INFORMATION SHOULD THE INFORMED CONSENT PROCESS INCLUDE? Standard 10.01(a), Informed Consent to Therapy, of the Ethics Code obligates psychologists to obtain informed consent to psychotherapy, but it allows considerable leeway regarding exactly what information psychologists should provide. The standard states that psychologists should inform clients “about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers” (APA, 2010, p. 13). The latitude inherent in the wording of this standard, in combination with the many different contexts in which psychologists work, contributes to the tremendous variability across psychotherapists in the information provided during the informed consent process. Thus, rather than universal content for the informed consent process—which would be impractical and restrictive, given the diversity of therapy approaches, modalities, and settings in which therapy takes place—there is wide variability in how much and what types of information are covered (Haslam & Harris, 2004; Zuckerman, 2008). Lists of what should be included among the information provided to prospective psychotherapy clients (beyond the language of the Ethics Code) indicate some degree of collective agreement as well some points of distinction. For example, many authors recommend that the informed consent process include information about the therapy approach or orientation, specific procedures to be employed, the therapist’s qualifications, the goal or purpose of the therapy, potential benefits or risks, alternatives to the proposed treatment, administrative and pragmatic issues (such as scheduling and payment, including discussion of third-party payment, if 317

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applicable), and confidentiality policies (e.g., Barnett, 2007; Bednar et al., 1991; Pope & Vasquez, 2007; Zuckerman, 2008). But to what extent, and in how much detail, should these topics be covered? And are there topics not on this list that also should receive some attention? Some authors have suggested that the information provided to prospective clients should go into quite extensive detail regarding these topics. For example, regarding potential risks related to treatment, Zuckerman (2008, p. 178) argued that the therapist should inform the client about risks beyond direct consequences of therapy, including indirect effects of therapy, such as “discomforts to be expected (e.g., conflicts with family members when a patient becomes more assertive).” Similarly, Koocher and Keith-Spiegel (2008) suggested discussing numerous second-order by-products of psychotherapy of which clients may be initially unaware. For example, they recommend discussing with clients the possibility that the changes they make in therapy could lead to disruptions in marriage potentially serious enough to lead to divorce and job-related difficulties that could culminate in a job change. They argue that “such cautions seem particularly warranted when the client has many inadequately addressed issues and the therapist suspects that uncovering these concerns (e.g., long-repressed anger) might lead to distressing feelings” (p. 113). Noll (1981; discussed in Stanley & Galietta, 2006) also has contended that the list of risks to be discussed with clients should be quite encompassing. For example, Noll maintained that clients should be informed, among other things, that if (present or potential) employers or insurers find out about the therapy, the employment or insurance could be lost; third-party payment could result in the client’s data being entered into a centralized computer bank potentially accessible by many; and the therapists’ confidential records could be accessed by robbery or subpoena. Some psychotherapists may cover the risks of therapy in such significant detail; surely, many do not. In fact, since the time of Noll’s article, the advent of the Health Insurance Portability and Accountability Act (HIPAA) has greatly reduced the risk of disclosure to employers. Moreover, some of the risks 318

listed by Noll (e.g., robbery) are simply such remote risks that mentioning them may not serve any beneficial function. Noll’s recommendations, however, do illustrate the diversity of attitudes held by therapists about the content to be included in informed consent processes. Potential risks of psychotherapy certainly are not the only topic about which there is disagreement about the extent of detail to be covered in the informed consent process. Similar discrepancy exists regarding the discussion of third-party payment. There are numerous truths of working with thirdparty payers about which therapists could choose to inform clients (Berg et al., 2001; Ford, 2006). For example, a psychiatric diagnosis may be required for payment, the therapist may be required to provide records of treatment to the third-party payer, the therapist may be unable to guarantee the confidentiality of records held in the computers of third-party payers, the financial agreement under which the therapist works may provide incentives for minimizing the number of sessions or may place limits on the amount of money available to fund treatment for a particular disorder, and the third-party payer may limit or discourage the discussion of alternative treatments. To what extent should these and similar specific issues regarding third-party payment be covered during the informed consent process? Regarding the necessity of diagnosis for reimbursement, in managed care situations, Ford (2006) made the case that clients must be informed that the therapist will need to provide a diagnostic code to the insurer. Some clients are very uncomfortable with this process, fearing that their confidentiality may be threatened by the presence of a psychiatric diagnosis in their computerized insurance records. (p. 101) Certainly, not all practitioners agree with Ford’s (2006) argument, and it is likely that clients commonly enter therapy unaware of this need for a diagnostic label to facilitate payment for therapy, among other details of how third-party payment influences the psychotherapy process. Pomerantz (2000) studied the reactions of prospective clients

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to psychotherapists’ widely held beliefs regarding the influence of managed care on their work with clients. Participants (undergraduates) initially answered a series of questions assessing their attitudes toward psychotherapy and the likelihood that they would see a psychotherapist and use managed care benefits to pay for therapy. Next, they received information about a particular (fictional) therapist. This information consisted of the therapist’s negative views regarding the impact of managed care on psychotherapy, which were in fact the modal responses from actual therapists to questions about managed care in an earlier empirical survey (Murphy, DeBernardo, & Shoemaker, 1998). After receiving the information, participants were quizzed to ensure that they correctly understood it. Results indicated that compared with their uninformed attitudes, participants’ attitudes toward therapy became remarkably more negative when they were informed of the negative impact that managed care had on psychotherapists’ practices. They were significantly less likely to use managed care to pay or to enter psychotherapy at all. In a follow-up study, Jung, Pomerantz, Tuholski, and Sullivan (2001) found that the pieces of information that most strongly and negatively influenced clients’ attitudes toward psychotherapy were the psychotherapists’ beliefs that managed care could lead to inappropriate assessment, altered diagnosis, insecure confidentiality, decreased quality of care, and potential harm to the client. Together, these studies imply that the way psychotherapists handle the issue of informing clients about third-party payment—for example, the extent to which they discuss it, which specific details they choose to present or omit—can powerfully affect the opinions of prospective clients about therapy, and in some cases, can result in clients changing their mind about how to pay for therapy or about pursuing therapy at all. Regardless of what information therapists provide about psychotherapy, it is important for them to separate objective facts regarding managed care from their personal, subjective feelings about managed care. Indeed, surveys repeatedly have found that most psychologists hold negative opinions about managed care and its impact on their practice and income (e.g., Murphy et al., 1998; Phelps,

Eisman, & Kohout, 1998). Thus, it is not unlikely that a therapist presenting information about managed care to a client holds unfavorable attitudes about managed care. For clients making a decision between managed care therapy or self-pay therapy (or between managed care therapy or no therapy at all), it is essential that the therapist portray the managed care company and estimate its impact realistically, and emphasize the impact of the company’s involvement on the client, not the therapist. Like potential risks of therapy and third-party payment, the description of the treatment itself— “the nature and anticipated course of therapy,” as stated in Standard 10.01 (APA, 2010, p. 13)—is a topic about which psychotherapists must make decisions regarding how much to cover and what specifics to include. To begin, should this discussion focus on therapy in the most general sense, or on the specific type of therapy being considered for a particular client? As an example, consider a psychotherapist considering the use of cognitive therapy with an outpatient adult client who is mildly depressed. At the most global level, the therapist could provide generic information about psychotherapy: that it will involve talking (i.e., rather than medication), that it will occur in an office setting in a series of ongoing appointments, and that empirical research has strongly concluded that therapy works (e.g., broad-based general studies, meta-analyses, or mega-analyses, including Lambert & Ogles, 2004; Lipsey & Wilson, 1993; Luborsky et al., 2002). (Although it may seem obvious, such a basic orientation can be quite helpful to clients unfamiliar with therapy, including many from diverse cultures.) On the other hand, the therapist could provide specific information about the therapy being considered for this particular client, such as the use of cognitive restructuring techniques and between-session homework assignments; data from efficacy studies about cognitive therapy for clients who are mildly depressed; and, if available, data from efficacy studies about cognitive therapy for clients with depression who match this client in terms of age, gender, ethnicity, or other individual variables. In fact, therapists could offer details of the status of cognitive therapy for depression on professionally endorsed lists of psychological treatments that work (e.g., 319

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Chambless et al., 1998). Once this issue is resolved, the therapist must decide how much to tell the client. On one hand, it might be possible to summarize psychotherapy (in general or a specific type) in just a few sentences; on the other, an argument could be made that the client is entitled to know much more about what they are considering, including perhaps enough information to fill paragraphs, pages, chapters, or books. Clearly, psychotherapists face challenging decisions about the extent to which they will cover such topics as risks, third-party payment, and the nature of therapy in their informed consent processes. They also face similarly challenging decisions regarding whether to speak to other topics at all. For example, in the course of describing the therapy that they plan to provide, should psychotherapists explicitly tell clients the diagnosis they have assigned? Bednar et al. (1991) suggested that informed consent should include diagnostic information, presumably including specific diagnoses from the Diagnostic and Statistical Manual of Mental Disorders (DSM–IV–TR; American Psychiatric Association, 2000). Directly informing clients of their DSM diagnosis is not specifically mentioned in the Ethics Code and could prove to be beneficial or harmful to outcome, especially when cultural issues are considered (e.g., Okasha, Arboleda-Florez, & Sartorius, 2000). As a second example, should psychotherapists include personal information about themselves in the informed consent process? That is, do prospective clients need to be aware of certain qualities about the therapist as a human being to make truly informed decisions about therapy? If so, which qualities? Braaten, Otto, and Handelsman (1993) found that prospective clients are indeed interested in personal qualities about the therapist; in fact, for many clients, such questions are more crucial than questions about the therapy itself, such as those on confidentiality and alternatives to treatment. On the other hand, Braaten and Handelsman (1997) found that current and former clients assigned greater importance to information about such topics as confidentiality and inappropriate therapy techniques than personal qualities of the therapist. Anderson and Handelsman (2010) suggested that psychotherapists may choose to inform clients 320

about “some of your basic values that guide your work and your life,” including “whether you work from a religious framework,” “political or moral issues you feel strongly about,” and “your views about ____ (abortion, civil rights, homosexual marriage, home schooling, war, parenting styles, local political issues, gay rights, gun control, terrorism, etc.)” (p. 229). McMinn, Ruiz, Marx, Wright, and Gilbert (2006) advocated that psychologists who provide psychotherapy might consider putting some statement of religious or spiritual values in the initial psychotherapy contract that clients review and sign … it may also be appropriate for psychologists of no religious faith … to disclose something about their worldview at the beginning of psychotherapy. (p. 300) Others have stated unequivocally that some therapists, including feminist therapists and explicitly religious therapists, should routinely tell clients about their convictions: “Doing so makes truly informed consent possible. And if clients know their therapist’s values, therapists are less likely to have an untoward influence on client values” (Tjeltveit, 1999, p. 160). Some data suggest that telling a client one’s own religious background is likely to influence the client’s likelihood to pursue therapy with that therapist (e.g., Gregory, Pomerantz, Pettibone, & Segrist, 2008). It is unclear, however, which, if any, aspects of a therapist’s religious background—or personal values, or political beliefs, or other individual qualities—are relevant enough to warrant automatic inclusion in the informed consent process. For certain clients— for example, a client seeking therapy to deal with anxiety about an unintended pregnancy—certain beliefs—for example, the therapist’s personal stance on abortion—may be quite relevant. But for others, an overly exhaustive or premature description of the therapist’s beliefs, values, or history not only may be irrelevant but also a disconcertingly candid violation of professional boundaries between client and therapist. Therefore, the burden falls on the therapist to determine which personal characteristics, if any, are relevant for informed consent with a particular client. The therapist may need to reevaluate as issues

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arise in therapy, as new topics may emerge or new events may take place in the client’s life that place importance on an aspect of the therapist as a person that previously were unrelated to the therapy. For example, the therapist’s views on abortion may become relevant only after the client reveals that she is unexpectedly pregnant and is considering an abortion. The modality of therapy also can influence the content of informed consent. In group therapy, for example, the therapist may choose to inform group clients explicitly about some issues unique to that modality of therapy, such as the impossibility of guaranteeing that fellow group members will not break confidentiality or the risk that fellow group members could be verbally or physically aggressive toward the client (Fallon, 2006; Lasky & Rivan, 2006). A separate set of questions arises when therapy is conducted via computer. Ford (2006) has provided a thorough list of issues that should be covered when therapy is conducted electronically, including questions from the client’s perspective, such as, “How secure and confidential are our communications via computer?” “How quickly will you respond to e-mail?” “How can I contact you in case of an emergency?” “What local resources are available if the situation is urgent and you are unavailable?” “How do you charge (per interaction, per minute, etc.)?” “What should I do if one of us has logistical problems with computer, Internet service provider, or local electricity?” “How long and in what manner will our electronic communications be saved or stored?” What is perhaps most striking about the many questions surrounding the issue of what to include in the informed consent process is the inherent difficulty in balancing comprehensiveness with conciseness (Barnett et al., 2007; Berg et al., 2001). In other words, how can psychotherapists give clients sufficient information to make a truly informed decision without unduly inundating them with extraneous information? The reasonable person and perspectivetaking strategies have been invoked as solutions to this predicament. Some malpractice cases have in fact hinged on the standard defined by what a reasonable person would want to know before choosing how to make a decision about psychotherapy

(Knapp & VandeCreek, 2006). The perspectivetaking strategy is designed to encourage the psychotherapist to take a first-person view of the issues at hand, as explained by Wise (2007): “Asking ourselves what we would want to know if either we or a loved one were contemplating the proposed course of treatment enables us to more meaningfully take the perspective of the client” (p. 183). For the therapist, an important part of the reasonable person or perspective-taking strategies is to recognize that the decision regarding what to cover or emphasize during the informed consent process may depend on certain client circumstances. For example, if the client has been referred to outpatient therapy by his or her supervisor at work, the therapist may want to take extra care to ensure that the client understands the limits of confidentiality (e.g., whether the supervisor has access to information from the therapy sessions). Together, the reasonable person and perspective-taking strategies of informed consent ensure that the client’s interests remain a top priority and that clients are maximally empowered to make truly informed decisions about their own treatment. As we discuss in more detail in the upcoming section on when informed consent should be obtained, informed consent to therapy increasingly is being recognized as an ongoing process rather than a discrete, singular event (e.g., Fisher, 2009; Grisso & Appelbaum, 1998; Lasky & Rivan, 2006; Pomerantz, 2008). This distinction between process and event applies to the issue of what to include in the informed consent process as well. Specifically, it is important to ensure that the client knows as early as possible that informed consent will be a process rather than an event. This way, the client will not be under the misapprehension that the therapist can provide all relevant data about the course of therapy at its outset. Instead, the therapist can give certain general information to all clients up front, but give more personalized information regarding a particular client’s psychotherapy after the client and therapist have spent some time together. Telling the client that they will be informed increasingly as the psychotherapist’s understanding of the client grows can be an important part of the initial informed consent process, especially when informed consent is 321

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seen as an opportunity to maximize client participation and empowerment rather than merely a riskmanagement or rule-adhering necessity (Pomerantz, 2005). HOW SHOULD INFORMED CONSENT BE OBTAINED? Some consensus exists that informed consent consists of three basic parts: adequate information provided to the client, the client’s competence to understand the information, and consent provided by the client in a voluntary manner (e.g., Grisso & Appelbaum, 1998; Stanley & Galietta, 2006; Strom-Gottfried, 2007). But little agreement exists regarding how to go about satisfying these three conditions. Instead, informed consent often is customized by each psychotherapist for each client, resulting in a wide variety of informed consent practices across clinicians and clients (Haslam & Harris, 2004; Johnson-Greene, 2007; Pope & Vasquez, 2007). Discussions of how to obtain informed consent to psychotherapy generally focus on the dichotomy of written forms and oral discussion, typically with both being recognized as important methods to incorporate into the process (Beahrs & Gutheil, 2001; Pope & Vasquez, 2007; Wise, 2007). Written consent forms—which can take the form of a handout, brochure, list of client rights, or therapy contract, among others—offer the advantages of providing standard information to clients and documenting client consent in a manner consistent with risk-management strategies (Zuckerman, 2008). However, as a sole attempt to tell clients what they need to know about psychotherapy, they run the risk of being too exhaustive, too brief, too impersonal, or too inflexible. Additionally, they can be written at a reading level that exceeds that of many clients, making them essentially unintelligible to some. When creating written consent forms, monitoring the accessibility of the language is essential. This includes minimizing the legalese that often is intended to protect the therapist but can befuddle or daunt some prospective clients (Knapp & VandeCreek, 2006; Pope & Vasquez, 2007). Handelsman, Kemper, Kesson-Craig, McLain, and Johnsrud (1986) found that the average readability level of 322

consent forms used by private practice psychologists was in the “difficult” range, roughly equivalent to an academically oriented magazine. This is undoubtedly above the level that many clients can reliably comprehend. Therapists should strive instead to create written consent documents written in ordinary, accessible language. Like written consent forms, oral discussions to obtain informed consent also are characterized by strength and weaknesses. They allow for maximal direct interaction between therapist and client, do not depend on the client’s reading ability, and can be customized for each client. They lack standardization, however, and a mechanism by which therapists retain tangible proof that clients have agreed to specific information regarding therapy. Moreover (similar to written consent forms), discussions with clients can be too long or too short. A combination of written form and oral discussion is often recommended as preferable to choosing one or the other exclusively (Beahrs & Gutheil, 2001; Knapp & VandeCreek, 2006; Pope & Vasquez, 2007). As a hybrid of sorts, Pomerantz and Handelsman (2004) presented an informed consent format consisting of a thorough list of questions about psychotherapy that therapists provide to outpatient clients at the outset of the informed consent process. This list of questions is an update of an earlier list (Handelsman & Galvin, 1988), with new questions regarding more contemporary issues such as thirdparty payment and manualized or evidence-based therapy. Clients are given the opportunity to read through the list and pursue any question of interest. The list consists of several dozen questions organized into the following categories: therapy, alternatives, appointments, confidentiality, money, insurance and managed care, and general issues. It is a loose template that therapists can adapt according to their work setting, modality, client characteristics, or other variables. It also supplements other written forms, which may include basic information about which the therapist feels strongly that every client should be informed. Ideally, such a format can enable productive discussion between therapist and client in a manner consistent with the Ethics Code’s pronouncement that the psychologist should “provide sufficient opportunity for the client/patient to

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ask questions and receive answers” (APA, 2010, Standard 10.01, p. 13). Furthermore, to a greater extent than either written consent forms or unstructured oral discussion alone, this format can establish the basis for a strong therapeutic alliance founded on “autonomy and empowerment through information rather than withholding, distrust, or patronization” (Pomerantz & Handelsman, 2004, p. 203). Whether in written, oral, or combined form, numerous factors can further influence the way in which informed consent is obtained, especially when the therapist’s goal is truly empowering clients to make genuinely informed choices. In particular, such issues as the modality of therapy, the delivery method of therapy, and the cultural background of the client contribute to the multiplicity of ways that psychotherapists obtain informed consent. Regarding the modality of therapy, the informed consent format for clients in group therapy may need to differ from the informed consent format for clients in individual therapy. The therapist may handle each client’s informed consent process individually or instead may handle informed consent at least partially as a group activity with all clients asking questions and making decisions in the presence of fellow group members. Fallon (2006) has adapted the informed consent format developed by Pomerantz and Handelsman (2004) for clients in group therapy by adding some group-specific questions that clients may ask, including questions about seeking individual and group therapy simultaneously and the therapist’s policies about talking with clients outside of group sessions. The delivery method of the therapy—specifically, whether the therapy is delivered via computer rather than in person—also can affect how informed consent is obtained. As computer-based forms of therapy (a broad range incorporating “e-therapy,” Internet-mediated therapy, computer-assisted therapy, and others) have emerged in recent years, challenges in obtaining informed consent have been noted (Fisher & Fried, 2003; Recupero & Rainey, 2005). A primary question is whether the informed consent process itself should take place via computer or, if possible, face to face even if the remainder of the therapy will take place electronically. (Without face-to-face verification, it can be difficult

to ensure that the person providing consent is in fact the person receiving the treatment or that the consent is truly voluntary.) Likewise, therapists must consider the issue of how to handle the questions that prospective clients are entitled to ask and the answers the therapists should provide. Should this interaction happen electronically as well, or should there be opportunity for oral exchanges (by phone or in person) as well? Ford (2006) discouraged therapists from automating the entire informed consent process for computer-based therapy, suggesting that some kind of discussion between therapist and client should remain an important component. (More information on informed consent in telehealth can be found in Volume 2, Chapter 10, this handbook.) Like the modality and delivery method of therapy, the client’s cultural background should play a role in how the therapist approaches the informed consent process. To begin, issues of language must be taken into account (Barnett, 2007). Therapists cannot assume that all clients will be fluent enough in the therapist’s primary language to fully comprehend the information provided during the informed consent process. They instead should be prepared to offer translations, work with translators, or provide referrals to more linguistically appropriate services as necessary. Beyond issues of language, other culturally relevant issues may loom large for some clients immersed in the informed consent process. Some clients may be entirely unfamiliar with psychotherapy, particularly as typically practiced from a Western perspective, and therefore require a very basic explanation of the activities that psychotherapy will and will not entail. Fisher and Oransky (2008) cited the example of a recent immigrant from China who recognized no distinction between a psychotherapist and a physician and entered psychotherapy expecting a physical exam and a prescription for medication rather than talk therapy. Other clients may be quite familiar with psychotherapy but, because of cultural history, understandably may be slower to trust the information provided during the informed consent process. For example, African American clients who enter psychotherapy with knowledge of the Tuskegee experiments, in which hundreds of African Americans were deliberately deceived and mistreated for the 323

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purpose of researching the course of syphilis between 1932 and 1972, may experience some skepticism when the therapist explains the purpose or course of the proposed therapy (Strom-Gottfried, 2007). When therapists engage in the informed consent process with clients from this or any culture with a history of deception or exploitation by supposed health care providers, extra care and patience may be beneficial. In some non-Western cultural groups, it may be rather uncommon for treatment decisions to be made solely by the individual client. Instead, treatment decisions may be shared among a group of family members that includes the client or may be delegated entirely to other family members who may hold positions of relatively high esteem or authority. For example, a young woman from a traditional American Indian culture may feel the need to include older or male family members in a decision about whether she should move forward with psychotherapy. In such situations, psychologists should be sensitive to the communal nature of informed consent decisions and should strive to achieve a balance between client autonomy and respect for cultural norms. In a broad sense, the values of a particular culture may not match the values underlying some of the ethical standards of psychologists, including standards relating to informed consent. For example, Standard 10.01 requires psychologists to “provide sufficient opportunity for the client/ patient to ask questions and receive answers” (APA, 2010, p. 13), but such an interaction may be foreign or uncomfortable for some clients: “clients from differing cultural backgrounds may not feel personally empowered to ask questions of a professional or may actually perceive it to be disrespectful” (Wise, 2007, p. 183). Houser, Wilczenski, and Ham (2006) cited the example of a Latina client whose culture promotes a marianismo role for women characterized by being, among other qualities, “submissive to men” (p. 93). Should a male therapist expect this client to ask questions or challenge his authority regarding treatment? Houser et al. (2006) also described the Native American emphasis on respect for elders: “One should not offend or be disrespectful to an elder. This includes following the advice of elders” (p. 51). For a Native American client who is 324

younger than the psychotherapist, a participatory approach to informed consent in which the client is empowered to make decisions may conflict with this belief. Such cultural considerations relate to an interesting question raised by several authors (e.g., Berg et al., 2001; Brock, 1993; Schneider, 1998): Should the autonomous, empowered, participatory role be forced upon every client? Or should clients be allowed to choose an unempowered, passive role if they so choose, especially if this role is a better fit for their own culturally relevant values? As therapists consider these and other important questions regarding culture and informed consent, it is in their best interests, as well as those of their clients, to remain sensitive to the unique cultural background of each client when they approach the informed consent process. (More information on competence with diverse populations can be found in Chapter 8 of this volume.)

WHEN SHOULD INFORMED CONSENT BE OBTAINED? With precedent in both psychological research participation and medical procedures, such as surgery, informed consent to psychotherapy was initially thought to be appropriate solely at the outset of the therapy relationship. This scheduling of informed consent reflects an event model well suited for discrete experiences that are entirely predictable or predetermined. Psychotherapy, however, does not match this description. Thus, although informed consent efforts still may be concentrated toward the beginning of the therapy relationship, therapists and researchers increasingly are recognizing that informed consent to psychotherapy is best understood as an ongoing process throughout therapy (e.g., Fisher, 2009; Pomerantz, 2008; Pope & Vasquez, 2007; Strom-Gottfried, 2007). As stated by O’Neill (1998), Given these features of psychotherapy, it is evident that it fits poorly into the model of a one-time consent given before the occurrence of some discrete procedure … [C]onsent regarding this client, this problem, and this intervention must

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evolve in the course of therapy itself. (p. 18, italics in original) Compared with the event model, the process model of informed consent is a better fit for psychotherapy for a number of reasons. The course of psychotherapy is difficult to foretell, even when a specific diagnosis has been determined and a specific course of treatment has been chosen. As therapy progresses in such cases, the therapist may determine that other clinical issues, including comorbid disorders or relevant client variables, have emerged and require an adjustment of the course of therapy. Clients tend to respond to therapy in idiosyncratic ways; even with manualized therapies, it is impossible to foresee how quickly a given client will progress through each stage of therapy. Additionally, extratherapeutic events may unpredictably affect the course of the therapy. For example, a client undergoing exposure and response prevention for obsessive-compulsive disorder may experience a job layoff during treatment, resulting in a compounded clinical profile that includes symptoms of depression in addition to the original obsessivecompulsive symptoms. In such a situation, the course of treatment may change to address the new issues. Simply put, unlike participation in psychological research or most medical procedures for which the event model is a good fit, psychotherapy is sufficiently variable and unpredictable to warrant a process model by which informed consent takes place on a continuing basis throughout the therapy relationship. The process model of informed consent to psychotherapy is consistent with an aspirational approach to ethics. Specifically, viewing informed consent as an ongoing process rather than a singular event correlates with a healthy, empowering therapeutic alliance. As stated by Pope and Vasquez (2007), informed consent to psychotherapy “is a recurrent process, not a static set of pro forma gestures, that develops out of the relationship between clinician and client” (p. 144). Berg et al. (2001) also described the benefits of the process model to the therapeutic relationship. Although their language refers to physicians such as psychiatrists, their points are equally applicable to nonphysician

psychotherapists such as psychologists, professional counselors, social workers, and others: Seen as an ideal, the process model provides a goal that concerned physicians and patients can strive to achieve. It is the concrete embodiment of the idea of informed consent and the logical extension of the ethical and legal theories from which that idea developed. Further, in providing a model of informed consent that conforms to the realities of clinical medicine, the process model replaces the artificialities of the event model—in which legal requirements are fit uneasily into clinical practice—with a meaningful and realistic alternative. Informed consent, using this approach, is no longer the intrusion, farce, or myth that its physician critics have accused it of being. It is an important and integral part of the doctor-patient relationship. (p. 186) Grisso and Appelbaum (1998) emphasized another potential advantage of the process model for informed consent to psychotherapy: greater comprehension by clients of the information presented due to the information being delivered gradually over time rather than all at once: As patients’ conditions evolve, new information becomes available, and decisions need to be made, caregivers can disclose the relevant data to patients, solicit and answer their questions, anticipate their concerns, and help apply their preferences to the decision-making process. Moreover, providing information over time may allow patients to assimilate the information more comfortably and completely, thereby maximizing their actual understanding. (pp. 14–15) In addition to the gradual presentation of information, the process model also may incorporate (intentionally or unintentionally) a certain degree of repetition of information that could further enhance client comprehension. If informed consent to psychotherapy is better conceptualized as an ongoing 325

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process than a discrete event, is it possible to determine what may take place at various points in this process? Such a determination is especially relevant in the context of the mandate in the Ethics Code to obtain informed consent “as early as is feasible” (APA, 2010, p. 13), as there may be different points when different components of the informed consent process can become feasible. (Notably, inclusion of the phrase “as early as is feasible” in Standard 10.01 also allows for the informed consent process to be delayed in the case of a psychiatric emergency.) Pomerantz (2005) conducted an empirical study of licensed psychologists in which participants were presented with a list of 21 questions that prospective clients may ask regarding their therapy. The questions were extrapolated from the topics mentioned in Standard 10.01 on informed consent to psychotherapy (APA, 2010). They included questions on payment (“How much does therapy cost?”), confidentiality (“Is everything I say confidential?”), goals (“What are the goals of therapy?”), content (“What activities will be involved in therapy?”), and duration (“How many sessions will therapy last?”), among other topics (pp. 359–360). Participants responded to the following item after reading the client questions: “What is the earliest point in outpatient psychotherapy at which you feel you could substantively and accurately answer each of the following client questions?” (p. 359). Results indicated that participants could provide certain types of information—essentially, policies regarding such issues as payment and confidentiality that would apply to all clients—at the outset of therapy (before the first session took place). To provide more substantive or personalized information, however, participants required more time. Specifically, participants indicated that they would not be able to address client questions about the therapy approach, goals, activities, risks, and alternatives until a full session had taken place. Additionally, they indicated that they would need at least three completed sessions to be able to competently address client questions about duration of therapy, presumably because duration depends on not only the presenting problem (and how it unfolds during the first stages of therapy) but also how clients respond to the initial sessions. These results support the process model of informed 326

consent to psychotherapy as opposed to the event model (e.g., Berg et al., 2001; O’Neill, 1998; Stone, 1990) whereby clients become increasingly informed about their therapy as it progresses. The specific data provided by the participants in this study bolster the argument that informed consent to psychotherapy should not take place as a single “one-time” occurrence at the outset of therapy but instead should constitute an ongoing process between therapist and client (Pomerantz, 2005, pp. 355–356). Future research undoubtedly will shed more light on the timing of specific components of informed consent to psychotherapy. But, assuming that therapy does not involve unusual circumstances, such as a psychiatric emergency or required communication between the therapist and a thirdparty payer (Fisher, 2009), the notion of informed consent as an ongoing process rather than a discrete event increasingly is being promoted and accepted. This promotion and acceptance reflects an aspirational view of informed consent by which it can be an integral part of a beneficial therapeutic alliance rather than a rote, unimportant task to complete at the beginning of therapy. WHO SHOULD BE INVOLVED IN THE INFORMED CONSENT PROCESS? In many settings, the question of who will provide informed consent requires only the most obvious and simple answer: the client. This answer, however, presumes that the client is a competent adult with decisional capacity. Of course, the client may be a minor rather than an adult. Or, the client may be an adult whose decision-making powers are held by others (e.g., a client with dementia or profound mental retardation) or whose capabilities to provide consent have been found insufficient by a court of law. In such cases, it is essential not only to obtain informed consent from the responsible party, but also to explain the treatment to the prospective client and obtain assent from that person (Anderson & Handelsman, 2010; Grisso & Appelbaum, 1998; Knapp & VandeCreek, 2006). As stated in Standard 3.10(b), For persons who are legally incapable of giving informed consent, psychologists

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nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. (APA, 2010, p. 6) At times, the client’s assent is not immediately forthcoming. For example, a minor may steadfastly refuse to agree to therapy at all. If the minor does agree to the general notion of therapy, he or she may withhold assent because he or she disagrees with the goals of therapy as put forth by parents, guardians, or therapists, or because he or she disagrees with the balance proposed between the minor’s privacy and the parent’s or guardian’s wishes to be informed about the child’s therapy. Such problems certainly are not uncommon: In a survey of more than 300 children, parents, and therapists in a clinical setting, Hawley and Weisz (2003) found that in more than 75% of cases child therapy began without consensus on a specific problem to be addressed in therapy, and in almost half of the cases the parties had not even agreed on a more general, broad area on which therapy should focus. Agreement between these areas, especially involving the party from whom assent is sought, should be a priority for therapists interested in a successful informed consent process and subsequently successful therapy. An adult whose decisional capacity may be questionable is a particularly difficult challenge for the therapist trying to obtain informed consent. Such questions of decisional capacity can occur frequently in certain settings, such as inpatient units and agencies that serve clients whose psychological problems involve significant cognitive impairment (e.g., delirium, dementia, schizophrenia). One resource for therapists is the MacArthur Competence Assessment Tool for Treatment (MacCAT-T), a 15- to 20-minute semistructured interview designed to assess four areas of capacity in the client: “understanding information relevant to their condition and the recommended treatment, reasoning about the potential risks and benefits of their choices, appreciating the nature of their situation and the consequences of

their choices, and expressing a choice” (Grisso, Applebaum, & Hill-Fotouhi, 1997, p. 1415). Even with the help of the MacCAT-T, or similar instruments, determining a particular client as either competent or incompetent to make decisions regarding their psychological treatment can be a difficult judgment. Another variation to the straightforward situation in which the client simply provides consent occurs when the client is not an individual but a couple or family. In such cases, it is important for the psychotherapist to ensure that the informed consent process involves all parties and that it clarifies who, exactly, is the client and who has access to various types of information (e.g., does one partner have access to discussions between the other partner and the therapist?; Pope & Vasquez, 2007). This clarification is especially relevant in situations in which the therapist interacts with both a patient and a collateral contact (e.g., partner, family member, close friend). In some cases, a collateral contact will attend sessions with the patient or have separate phone conversations with the therapist. This involvement could lead the collateral contact to mistakenly believe that he or she is in fact a client and therefore has rights to confidentiality, release of records, and the like. These rights can be crucial if cases go in a possibly unexpected forensic direction at a later time. The informed consent process can be a powerful tool to elucidate, both initially and again as needed throughout the course of therapy, who is a client, who is a collateral contact, and which privileges are associated with each of these roles. (More information on collateral contacts can be found in Volume 2, Chapter 3, this handbook.) Berg et al. (2001) raised a final issue regarding who should be involved in the informed consent process: Who should inform clients of the financial contingencies under which a therapist is working when a third-party payer is involved? Berg et al. stated that “it is fundamentally unfair to deprive patients of information concerning the financial pressures that may influence their physician’s [or psychotherapist’s] treatment decisions” (2001, p. 212), but they pointed out that if the burden of informing patients of these pressures falls on the therapist, the ensuing discussion could threaten the 327

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therapeutic relationship. They suggested that perhaps the burden should fall on the third-party payer (e.g., managed care or health insurance company) to explain these financial arrangements to the client. This debate continues, but it illustrates that the parties involved in the informed consent process may not always be limited to the client and the therapist. CONCLUSION: PROMOTING AUTONOMOUS DECISION MAKING (EMPOWERED COLLABORATION) Questions surround the issue of informed consent to psychotherapy. Why should it be obtained? What information should it entail? How should psychotherapists obtain it? When should it be obtained? Who should be involved in the process? As answers to all of these questions continue to evolve, it is evident that these answers increasingly are influenced by a positive (rather than remedial), empowering (rather than patronizing), “ceiling” (rather than “floor”) approach to ethics in psychology. For good reason, the potential of informed consent to foster the therapy relationship and ultimately boost therapy effects has become more widely acknowledged. Used optimally, it can be a powerful tool indeed, as described by Fisher and Oransky (2008): “Demystifying the therapeutic process and giving clients a sense of ownership—both of which can be initiated through informed consent procedures—can enhance rapport building, patient enthusiasm, and clinical outcome” (p. 587). Similarly, Berg et al. (2001) offered this conjecture: The effects of widespread use of a process model of medical decision making, as described in this book, are unpredictable, but let us speculate on just how far-reaching they could become. When people are treated differently, they begin to respond differently. Patients who are treated as respected partners in medical care may begin to behave with a new level of responsibility. They may take more initiative to maintain their own health, comply with agreed-on regimens, and provide important information to their physicians. (p. 323) 328

Descriptions of such lofty by-products of a successful informed consent process bring to mind the rather serendipitous experiences of psychologist Stephen Finn. Finn observed that when he met with assessment clients to provide feedback about the results of their tests, the clients often seemed to benefit from the discussion despite the fact that the discussion was not intended to have therapeutic effects. In other words, although therapy per se had not begun, clients were nonetheless improving from this preliminary step in the process. Finn subsequently has focused on maximizing the effects he observed by developing specific feedback techniques regarding Minnesota Multiphasic Personality Inventory—2 (MMPI–2) results in a process he and his colleagues call “therapeutic assessment” (e.g., Finn & Kamphus, 2006; Finn & Tonsager, 1992; Newman & Greenway, 1997). Informed consent is not an intervention in and of itself, but like Finn’s experience with MMPI–2 feedback, psychotherapists and researchers are nonetheless recognizing that it ultimately may contribute to clients’ well-being. This is especially likely to be true if psychotherapists approach informed consent conscientiously and ambitiously rather than thinking of it as merely a standardized form to be signed before therapy starts. The beneficence of transforming a pro forma informed consent event into an empowered collaboration process may stem in large part from its potential to enhance goal congruence between client and therapist at all stages of psychotherapy. That is, thoroughly informing clients and empowering them to play an active role in determining the course of their treatment is likely to increase the likelihood that the client and therapist are on the same page, which in turn can improve treatment results. As stated by Tryon and Winograd (2001), “research results suggest that psychotherapy outcome is enhanced when agreement on therapeutic goals and collaborative involvement … are present during the course of therapy” (p. 385). This finding suggests that informed consent throughout the course of therapy (rather than simply at the outset) holds the potential for continually aligning the objectives of client and patient and thereby maximizing the benefits of therapy. Even in the most challenging clinical situations, an informed consent process that promotes autonomous

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decision making may yield substantial benefit. For example, when a therapist faces a mandated disclosure (e.g., breaking confidentiality when a client has credibly threatened to cause significant harm), involving the client in decisions about how, exactly, to break confidentiality can enlist the client as an ally rather than an adversary in this process and possibly save the therapeutic alliance where it otherwise would have been in jeopardy. When a client is actively suicidal and the therapist considers a safety contract, soliciting the client’s input on the wording of that contract—rather than using a standardized, prewritten contract not customized to the client—enables the client to contribute and agree to a mutually developed plan rather than merely acquiesce to the therapist’s unilateral demand. It is possible that this active involvement will enhance the likelihood that the suicidal client will honor the agreement. Similarly, for clients who are severely mentally ill, rather than a client–therapist dynamic in which the goal is client compliance with a treatment plan authored solely by the therapist, an informed consent process in which the client is invited to participate in treatment planning can change the dynamic to one of adherence to a jointly determined plan. The salience of the benefits of informed consent, even in difficult or precarious clinical situations, is so great that Bennett et al. (2006) considered informed consent a patient-focused risk management procedure. Thus, when it is well conducted, informed consent has the potential to benefit the therapist as well as the client. Not only is clinical outcome enhanced, but also the risk of questionable practice and a subsequent complaint, lawsuit, or other such action against the therapist is reduced. As such, it is advisable to consider revisiting informed consent during times of crisis or impasse in therapy, for the sake of all parties involved. (Examples of this application can be found in Chapter 15 of this volume.) It is advisable to consider revisiting informed consent for all clients, at any stage of therapy. Informed consent not only is an ethical and legal imperative, but also is a procedure capable of augmenting therapeutic effectiveness and client welfare by empowering them and encouraging them to take an autonomous, instrumental role in their own psychological treatment.

References American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., text revision). Washington, DC: Author. American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx Anderson, S. K., & Handelsman, M. M. (2010). Ethics for psychotherapists and counselors: A proactive approach. Boston, MA: Wiley-Blackwell. Barden, R. C. (2001). Commentary: Informed consent in psychotherapy—A multidisciplinary perspective. The Journal of the American Academy of Psychiatry and the Law, 29, 160–166. Barnett, J. E. (2007). Seeking an understanding of informed consent. Professional Psychology: Research and Practice, 38, 179–186. doi:10.1037/0735-7028. 38.2.179 Barnett, J. E., Wise, E. H., Johnson-Greene, D., & Bucky, S. F. (2007). Informed consent: Too much of a good thing or not enough? Professional Psychology: Research and Practice, 38, 179–186. doi:10.1037/0735-7028.38.2.179 Beahrs, J. O., & Gutheil, T. G. (2001). Informed consent in psychotherapy. The American Journal of Psychiatry, 158, 4–10. doi:10.1176/appi.ajp.158.1.4 Beauchamp, T. L., & Childress, J. F. (2009). Principles of Biomedical Ethics (6th ed.). New York, NY: Oxford University Press. Bednar, R. L., Bednar, S. C., Lambert, M. J., & Waite, D. R. (1991). Psychotherapy with high-risk clients: Legal and professional standards. Pacific Grove, CA: Brooks/Cole. Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Berg, J. W., Appelbaum, P. S., Lidz, C. W., & Parker, L. S. (2001). Informed consent: Legal theory and clinical practice (2nd ed.). New York, NY: Oxford University Press. Braaten, E. B., & Handelsman, M. (1997). Client preferences for informed consent information. Ethics and Behavior, 7, 311–328. doi:10.1207/ s15327019eb0704_3 Braaten, E. B., Otto, S., & Handelsman, M. (1993). What do people want to know about psychotherapy? Psychotherapy: Theory, Research, Practice, Training, 30, 565–570. doi:10.1037/0033-3204.30.4.565 Brock, D. W. (1993). Life and death: Philosophical essays in biomedical ethics. Cambridge, England: Cambridge University Press. 329

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Fisher, C. B. (2009). Decoding the ethics code: A practical guide for psychologists (2nd ed.). Thousand Oaks, CA: Sage. Fisher, C. B., & Fried, A. L. (2003). Internetmediated psychological services and the American Psychological Association Ethics Code. Psychotherapy: Theory, Research, Practice, Training, 40, 103–111. doi:10.1037/0033-3204.40.1-2.103 Fisher, C. B., & Oransky, M. (2008). Informed consent to psychotherapy: Protecting the dignity and respecting the autonomy of patients. Journal of Clinical Psychology, 64, 576–588. doi:10.1002/jclp.20472 Ford, G. G. (2006). Ethical reasoning for mental health professionals. Thousand Oaks, CA: Sage. Goldfinger, K., & Pomerantz, A. M. (2010). Psychological assessment and report writing. Thousand Oaks, CA: Sage.

Houser, R., Wilczenski, F. L., & Ham, M. (2006). Culturally relevant ethical decision-making in counseling. Thousand Oaks, CA: Sage. Johnson-Greene, D. (2007). Evolving standards for informed consent: Is it time for an individualized and flexible approach? Professional Psychology: Research and Practice, 38, 183–184. Jung, R. M., Pomerantz, A. M., Tuholski, S. W., & Sullivan, B. F. (2001). The impact of specific psychotherapist beliefs regarding managed care on prospective psychotherapy clients. Journal of Contemporary Psychotherapy, 31, 151–160. doi:10.1023/ A:1013912020398 Knapp, S. J., & VandeCreek, L. D. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. doi:10.1037/11331-000

Gregory, C., Pomerantz, A. M., Pettibone, J. C., & Segrist, D. J. (2008). The effects of psychologists’ disclosure of personal religious background on prospective clients. Mental Health, Religion, and Culture, 11, 369–373. doi:10.1080/13674670701438739

Koocher, G. P., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press.

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(Ed.), Bergin and Garfield’s handbook of psychotherapy and behavior change (5th ed., pp. 139–193). New York, NY: Wiley. Lasky, G. B., & Rivan, M. T. (2006). Confidentiality and privileged communication in group psychotherapy. International Journal of Group Psychotherapy, 56, 455–476. doi:10.1521/ijgp.2006.56.4.455 Lidz, C. W., Meisel, A., Zerubavel, E., Carter, M., Sestak, R. M., & Roth, L. H. (1984). Informed consent: A study of decision making in psychiatry. New York, NY: Guilford Press. Lipsey, M. W., & Wilson, D. B. (1993). The efficacy of psychological, educational, and behavioral treatment: Confirmation from meta-analysis. American Psychologist, 48, 1181–1209. doi:10.1037/0003066X.48.12.1181 Luborsky, L., Rosenthal, R., Diguer, L., Andrusyna, T. P., Berman, J. S., Levitt, J. T., . . . Krause, E. D. (2002). The dodo bird verdict is alive and well—Mostly. Clinical Psychology: Science and Practice, 9, 2–12. doi:10.1093/clipsy/9.1.2 McMinn, M. R., Ruiz, J. N., Marx, D., Wright, J. B., & Gilbert, N. B. (2006). Professional psychology and the doctrines of sin and grace: Christian leaders’ perspectives. Professional Psychology: Research and Practice, 37, 295–302. doi:10.1037/0735-7028. 37.3.295 Miller, D. J., & Thelen, M. H. (1986). Knowledge and beliefs about confidentiality in psychotherapy. Professional Psychology: Research and Practice, 17, 15–19. doi:10.1037/0735-7028.17.1.15 Murphy, M. J., DeBernardo, C. R., & Shoemaker, W. E. (1998). Impact of managed care on independent practice and professional ethics: A survey of independent practitioners. Professional Psychology: Research and Practice, 29, 43–51. doi:10.1037/0735-7028. 29.1.43 Newman, M. L., & Greenway, P. (1997). Therapeutic effects of providing MMPI-2 test feedback to clients at a university counseling service: A collaborative approach. Psychological Assessment, 9, 122–131. doi:10.1037/1040-3590.9.2.122 Noll, J. O. (1981). Material risks and informed consent to psychotherapy. American Psychologist, 36, 915–916. doi:10.1037/0003-066X.36.8.915 Okasha, A., Arboleda-Florez, J., & Sartorius, N. (Eds.). (2000). Ethics, culture, and psychiatry: International perspectives. Washington, DC: American Psychiatric Press. Orchowski, L. M., Spickard, D. A., & McNamara, J. R. (2006). Cinema and the valuing of psychotherapy: Implications for clinical practice. Professional Psychology: Research and Practice, 37, 506–514. doi:10.1037/0735-7028.37.5.506

O’Neill, P. (1998). Negotiating consent in psychotherapy. New York: New York University Press. Osheroff v. Chestnut Lodge, Inc., 490 A. 2d. 720 (Md. App. 1985). Pedersen, P. B., Draguns, J. G., Lonner, W. J., & Trimble, J. E. (Eds.). (2008). Counseling across cultures (6th ed.). Thousand Oaks, CA: Sage. Phelps, R., Eisman, E. J., & Kohout, J. (1998). Psychological practice and managed care: Results of the CAPP practitioner study. Professional Psychology: Research and Practice, 29, 31–36. doi:10.1037/07357028.29.1.31 Pomerantz, A. M. (2000). What if prospective clients knew how managed care impacts psychologists’ practice and ethics? An exploratory study. Ethics and Behavior, 10, 159–171. doi:10.1207/ S15327019EB1002_04 Pomerantz, A. M. (2005). Increasingly informed consent: Discussing distinct aspects of psychotherapy at different points in time. Ethics and Behavior, 15, 351–360. doi:10.1207/s15327019eb1504_6 Pomerantz, A. M. (2008). Informed consent. In F. T. L. Leong (Ed.), Encyclopedia of counseling (pp. 339–341). Thousand Oaks, CA: Sage. Pomerantz, A. M., & Handelsman, M. M. (2004). Informed consent revisited: An updated written question format. Professional Psychology: Research and Practice, 35, 201–205. doi:10.1037/0735-7028. 35.2.201 Pope, K. S., & Vasquez, M. J. T. (2007). Ethics in psychotherapy and counseling: A practical guide (3rd ed.). San Francisco, CA: Jossey-Bass. Recupero, P. R., & Rainey, S. E. (2005). Informed consent to E-therapy. American Journal of Psychotherapy, 59, 319–331. Rutherford, B. R., & Roose, S. P. (2006). Do psychiatry residents obtain informed consent for psychotherapy? Journal of the American Psychoanalytic Association, 54, 1343–1347. Schneider, C. E. (1998). The practice of autonomy: Patients, doctors, and medical decisions. New York, NY: Oxford University Press. Stanley, B., & Galietta, M. (2006). Informed consent in treatment and research. In I. B. Weiner & A. K. Hess (Eds.), The handbook of forensic psychology (3rd ed., pp. 211–239). Hoboken, NJ: Wiley. Stone, A. A. (1990). Law, science, and psychiatric malpractice: A response to Klerman’s indictment of psychoanalytic psychiatry. The American Journal of Psychiatry, 147, 419–427. Strom-Gottfried, K. (2007). Straight talk about professional ethics. Chicago, IL: Lyceum. 331

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Sullivan, T., Martin, W. L., & Handelsman, M. M. (1993). Practical benefits of an informed-consent procedure: An empirical investigation. Professional Psychology: Research and Practice, 24, 160–163. doi:10.1037/0735-7028.24.2.160 Tjeltveit, A. C. (1999). Ethics and values in psychotherapy. London, England: Routledge. doi:10.4324/9780 203360453 Tryon, G., & Winograd, G. (2001). Goal consensus and collaboration. Psychotherapy: Theory, Research, Practice, Training, 38, 385–389. doi:10.1037/0033-3204.38.4.385 Wagner, L., Davis, S., & Handelsman, M. M. (1998). In search of the abominable consent form: The impact of readability and personalization. Journal of Clinical Psychology, 54, 115–120. doi:10.1002/(SICI)10974679(199801)54:13.0.CO;2-N

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CHAPTER 13

CONFIDENTIALITY AND RECORD KEEPING Mary Alice Fisher

Confidentiality is an ethical duty. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010b) describes the protection of confidential information as a “primary obligation” (p. 7). It has been variously defined as “a standard of professional conduct that obliges a professional not to discuss information about a client with anyone” (Koocher & Keith-Spiegel, 2008, p. 194), “the secret-keeping duty that arises from the establishment of the professional relationship that psychologists develop with their clients” (Younggren & Harris, 2008, p. 589), and “a duty to keep private things private” (Haas & Malouf, 2005, p. 32). Confidentiality is also a legal duty. Many laws provide legal support for the profession’s ethical rule. In many states, the Ethics Code has been incorporated into psychologists’ licensing regulations, thereby giving the profession’s confidentiality standards the force of law. It confuses matters, however, that certain other state laws can severely limit confidentiality by requiring psychologists to disclose information without the client’s consent. Historically, psychologists were ethically free to begin client relationships by saying, “Everything you tell me stays in this room,” because they usually were free legally to keep that promise. As laws began to require psychologists to disclose certain client information, strong voices within the profession, including a former APA president (Siegel, 1979), argued that psychologists nevertheless should protect confidentiality absolutely. Some still advocate that therapists of all professions should refuse to disclose client

information under any circumstances, regardless of the legal consequences (Bollas & Sundelson, 1995; Kipnis, 2006). But neither the mental health professions nor the law now treat confidentiality as an absolute value. Because laws often require confidential client information to be disclosed, the APA Ethics Code now explicitly permits psychologists to make exceptions to the ethical rule. In other words, both the profession and the law now place some conditions on the client’s right to confidentiality. Ethically speaking, this “conditional confidentiality” can be complicated to practice. In part, this difficulty arises from the fact that, although all psychologists must uphold the same ethical standards about confidentiality (APA, 2010b), each state imposes different legal limitations on their ability to protect clients’ confidences. Although confidentiality might seem to be an easy concept on the surface, it becomes quite complex when exceptions differ from circumstance to circumstance and from state to state (Younggren & Harris, 2008). Confusion about confidentiality was increased by the fact that while states were enacting some laws that protected confidentiality (i.e., privileged communications laws), they also were enacting other laws that required clinicians to disclose confidential information (e.g., mandated reporting laws); and on balance, “the porousness of confidentiality seems to be increasing” (Gonsiorek, 2009, p. 374). Finally, psychologists may experience confidentiality as complicated because, as one of the profession’s broadest ethical principles, it arises in every aspect of professional life (Behnke, 2007a).

DOI: 10.1037/13271-013 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Nevertheless, psychologists themselves have long described confidentiality as their most important professional duty (Crowe, Grogan, Jacobs, Lindsay, & Mark, 1985; Jagim, Wittman, & Noll, 1978; Pope & Vetter, 1992). Somewhat paradoxically, they also described it as the aspect of practice most likely to create ethical dilemmas (Haas, Malouf & Mayerson, 1986; Pope & Vetter, 1992). Bollas and Sundelson (1995) suggested that, as laws placed increasing limits on the ability to protect client confidences, even well-qualified clinicians began to experience not only profound confusion about confidentiality, but also increasing levels of anxiety and despair about the impact of these laws. When the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted, its primary purpose was the protection of clients’ privacy and confidentiality rights; yet in some respects its detailed provisions and broad exceptions made a confusing and anxious confidentiality climate even more so. To reduce confusion about how to practice ethically in this climate of conditional confidentiality, this chapter emphasizes four perspectives about confidentiality. First, I take the position that there are ethical standards about confidentiality, and there are laws about confidentiality: They sometimes overlap, but they are two entirely different things, and it is ethically essential that psychologists not confuse them. Second, ethically speaking, laws do not change the importance of confidentiality: Laws can require psychologists to make exceptions to their confidentiality rule, but they do not change the rule itself. Third, a legally allowed disclosure differs from a legally required disclosure: The former is a voluntary disclosure (in the sense that the client is free not to consent and the psychologist is free not to disclose), and voluntary disclosures carry informed consent responsibilities. Fourth, and related to the first, when laws conflict with patient confidentiality, psychologists must notice because they have an ethical obligation to try to resolve the conflict. To maintain an ethical focus, I begin this chapter with the moral concepts that underlie our ethical duties, to stress the importance of practicing in a way that upholds the ethics and practice guidelines that we have established for our profession. Only with that ethical baseline in place do I consider laws 334

that affect psychologists’ practices about confidentiality. I then integrate the ethical and legal material into a six-step ethical practice model (M. A. Fisher, 2008b) that places the laws into ethical context. Later sections of the chapter address client records, confidentiality considerations with particular populations and in specific settings, and ethics-based confidentiality training for staff in mental health settings. UNDERLYING CONCEPTS The moral underpinnings of the profession’s confidentiality rule can be found in several of the General Principles in the Ethics Code (APA, 2010b), including Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; and Principle E, Respect for People’s Rights and Dignity: Confidentiality rules are based on the moral principles of beneficence, in that psychologists act to promote patient welfare; nonmaleficence, in that psychologists avoid actions that could harm patients; integrity (i.e., fidelity), in that psychologists keep their promises; and respect for patient autonomy, to the extent that patients have control over the release of the information generated from patient services [emphasis added]. (Knapp & VandeCreek, 2006, p. 112) Practical considerations and clinical implications also underlie the profession’s emphasis on confidentiality. According to the APA Record Keeping Guidelines (2007), “assurance of confidentiality is critical for the provision of many psychological services” (p. 997). As “a cornerstone of the helping relationship” (Koocher & Keith-Spiegel, 2008, p. 190), confidentiality helps to create a “culture of safety” that fosters client trust (Knapp & VandeCreek, 2006, p. 115). Although psychologists have an ethical duty to protect confidentiality in all their professional relationships, it always has been considered especially important in therapy relationships. Prospective therapy clients often expect that confidentiality will be absolute, based partly on their awareness that

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psychologists have an ethical duty to maintain confidences and partly on the knowledge that state laws provide a psychotherapist–patient privilege (APA, 1995; Miller & Thelen, 1986). Many consider confidentiality essential to effective psychotherapy (Caudill & Kaplan, 2005). Although the research findings are somewhat mixed, “it seems reasonable to assume that for many people, trust that their privacy will not be intruded upon beyond the confines of the clinical relationship is an important element in permitting unguarded exchanges during treatment” (Department of Health and Human Services [DHHS], 1999, p. 440). The APA has argued that confidentiality is essential for successful psychotherapy, noting that because a therapy client “must expose his most intimate thoughts, feelings, and fantasies,” therapists must be able to create “an atmosphere in which clients can reveal sensitive and potentially embarrassing confidences without fear that they will be disclosed to others” (APA, 1995, pp. 10–11). This perspective received legal backing from the U. S. Supreme Court in Jaffee v. Redmond (1996). Confidentiality also serves broader social purposes. It not only preserves the personal privacy of individual clients but also promotes public trust in the profession itself (APA, 2007; Haas & Malouf, 2005). Finally, confidentiality can be important for avoiding stigma. Fear of stigma can be an impediment to seeking needed mental health treatment (Dingfelder, 2009), and confidentiality protects the fact that an individual has sought mental health treatment as well as the disclosures made during treatment (DHHS, 1999, p. 439). ETHICAL RESPONSIBILITIES Professional responsibilities about confidentiality include both Ethical Standards (APA, 2010b) and Guidelines. Unlike the Ethical Standards, the Guidelines are aspirational, not enforceable, but they inform professional practice by recommending specific behavior, endeavors, or conduct for psychologists (APA, Governance Operations Staff, 2009).

APA Ethical Standards The standards relevant to confidentiality are scattered throughout the Ethics Code. Of the 31 standards

with a direct bearing on confidentiality, only seven are in the Privacy and Confidentiality section (see Table 13.1). Until they are organized in some meaningful way, however, these standards can seem to contain unrelated—perhaps even conflicting— mandates. Matters become clearer when the standards are organized according to a principal-based system that separates them into three categories: (a) “key standard”; (b) “clarifying, amplifying, and application standards”; and (c) “exceptions to the key standard” (Knapp & VandeCreek, 2006, p. 33). When thus organized (see Table 13.2), it becomes clear that 1 standard contains the confidentiality rule, 1 standard contains the ethically allowed exceptions to that rule, and the other 29 standards all belong in the middle category. The key standard. The confidentiality rule itself is in Standard 4.01, Maintaining Confidentiality, a onesentence standard that applies to psychologists in all their professional roles. The sentence first states the rule, then alludes to circumstances that can create exceptions to the rule: Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship. (APA, 2010b, p. 7) The clarification, amplification, and application standards. These 29 standards expand on the confidentiality rule. The standards within Section 4, Privacy and Confidentiality, expand on the rule by requiring psychologists to obtain consent before recording clients’ voices or images; minimize disclosures when providing oral or written reports; and avoid disclosing identifiable client information when writing, teaching, or obtaining consultation. Elsewhere in the Ethics Code are standards that affirm the importance of considering confidentiality when responding to others’ ethical violations, interacting with other professionals, preparing for absences or 335

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TABLE 13.1 APA Ethical Standards Relevant to Confidentiality Step in ethical practice APA ethical standard

model (see Table 13.3)

1. Resolving ethical issues 1.02. Conflicts between ethics and law 1.03. Conflicts between ethics and organizational demands 1.04. Informal resolution of ethical violations 1.05. Reporting ethical violations 1.06. Cooperating with ethics committees 2. Competence 2.05. Delegation of work to others 3. Human relations 3.05. Multiple relationships 3.07. Third-party requests for services 3.09. Cooperation with other professionals 3.10. Informed consent 3.11. Psychological services to/through organizations 3.12. Interruption of psychological services 4. Privacy and confidentiality 4.01. Maintaining confidentiality 4.02. Discussing the limits of confidentiality 4.03. Recording 4.04. Minimizing intrusions on privacy 4.05. Disclosures 4.06. Consultations 4.07. Use of confidential information for didactic/other purposes 6. Record keeping and fees 6.01. Documentation of work and maintenance of records 6.02. Maintenance, dissemination, disposal of records 6.04. Fees and financial arrangements 6.06. Accuracy in reports to payors and funding sources 8. Research and publication 8.02. Informed consent to research 8.03. Informed consent for recording in research 8.15. Reviewers 9. Assessment 9.03. Informed consent in assessments 9.04. Release of test data 10. Therapy 10.01. Informed consent to therapy 10.02. Therapy involving couples or families 10.03. Group therapy

1, 2, 4, 5, 6 1, 2, 5, 6 4, 6 4, 6 4, 6 5 2, 5 2 1, 4, 6 2 2 5 3 2 3 5 3 1, 3, 5, 6 3, 5 5 3, 5 2, 5 3, 5 2 2 5 2, 5 2, 4, 5 2 2 2

Note. Adapted from Ethical Principles of Psychologists and Code of Conduct (2002, Amended June 1, 2010), by the American Psychological Association, 2010, Washington, DC: Author. Copyright 2010 by the American Psychological Association.

unexpected endings, developing record-keeping policies, using a collection agency, submitting claims for reimbursement, or reviewing others’ materials. It is also apparent from Table 13.2 that confidentiality ethics requires more than just protecting 336

confidential information. Because confidentiality will be conditional, psychologists have an initial informed consent requirement—an ethical obligation to inform prospective clients about the foreseeable conditions in advance, before obtaining their

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TABLE 13.2 APA Ethical Standards Related to Confidentiality Arranged in Categories Suggested by Knapp and VandeCreek (2006) 1. Key standard 4.01. Maintaining confidentiality 2. Clarification, amplification, and application standards Expanding on the confidentiality rule 4.03. Recording 4.04. Minimizing intrusions on privacy 4.06. Consultations 4.07. Use of confidential information for didactic or other purposes Applying the confidentiality rule in other specific circumstances 1.04. Informal resolution of ethical violations 1.05. Reporting ethical violations; 1.06. Cooperating with ethics committees 3.09. Cooperation with other professionals 3.12. Interruption of psychological services 6.01. Documentation of work and maintenance of records; 6.02. Maintenance, dissemination, disposal of records 6.04. Fees and financial arrangements 6.06. Accuracy in reports to payors and funding sources 8.15. Reviewers 9.04. Release of test data Informing prospective clients about limits of confidentiality 3.05. Multiple relationships 3.07. Third party requests for services 3.10. Informed consent 3.11. Psychological services to/through organizations 4.02. Discussing the limits of confidentiality 8.02. Informed consent to research 8.03. Informed consent for recording in research 9.03. Informed consent in assessments 10.01. Informed consent to therapy 10.02. Therapy involving couples or families 10.03. Group therapy Ensuring that others protect clients’ confidentiality rights 2.05. Delegating of work to others Responding to conflicts between ethical duties and other duties 1.02. Conflicts between ethics and law, regulations, or other governing legal authority 1.03. Conflicts between ethics and organizational demands 3. Exceptions to the key standard 4.05. Disclosures

Note. Adapted from Practical Ethics for Psychologists: A Positive Approach, by S. Knapp and L. D. VandeCreek, 2006, Washington, DC: American Psychological Association. Copyright 2010 by the American Psychological Association.

consent to receive services. In other words, it would be appropriate to begin a professional relationship without discussing the limits of confidentiality only if confidentiality had no limits. The term informed consent appears often in the Ethics Code (APA, 2010b), and the necessity of obtaining the informed client’s consent to accept the described limits of confidentiality is reflected in a dozen separate standards scattered across five sections of the Ethics Code (see Table 13.2). Psychologists are responsible for ensuring that those to whom they delegate responsibility will perform their duties competently (Standard 2.05, Delegation of Work to Others). Although the Ethics Code does not explicitly require psychologists to provide staff training about confidentiality, this may be inferred from that standard. Such training seems essential to ensure that clients’ confidentiality rights will be protected in the setting (M. A. Fisher, 2009b). (See the section Ethics-Based Staff Training About Confidentiality and Records.) Finally, two standards apply if psychologists’ ethical duties come into conflict with legal or organizational requirements. Such conflicts often involve confidentiality and disclosure. As amended in 2010, the Ethics Code now requires that whether faced with a conflict between the Ethics Code and a legal requirement (Standard 1.02), or between the Ethics Code and an organizational policy (Standard 1.03), psychologists must “clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code” (APA, 2010a, p. 1). Exceptions to the key standard. The ethically allowed exceptions to the confidentiality rule are in Standard 4.05, Disclosures, which lists the three ethically permitted bases for disclosing client information: client consent, legal requirement, and legal permission. Behnke metaphorically describes these as the only three ethically available “doors” to disclosure: “Other than these three doors, there is no other way of … communicating with anyone” about the client (Behnke, 2004, p. 78). The rule and its exceptions might be stated this way: Psychologists may disclose confidential information 337

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only with the client’s consent unless the disclosure is either legally required or legally permitted for a valid purpose. As explained in following sections, the first door to disclosure—client consent—can be opened in one of two ways: (a) initially, through an informed consent interview with perspective clients (in which the psychologist obtains an informed client’s consent to accept the limits of confidentiality that will apply for all clients); and (b) at any time, by obtaining a release from an informed client, giving consent for a disclosure specific to that client. The other two doors to disclosure—legal requirement and legal permission—may sound similar, but ethically speaking, they are very different. These differences will be discussed at length in later sections.

APA Guidelines Confidentiality issues are addressed in numerous APA guidelines. Foremost among these are the APA Record Keeping Guidelines (APA, 2007), which are covered in detail in the section Record Keeping in this chapter. Other guidelines and resources from the APA Committee on Professional Practice and Standards cover confidentiality issues in child protection matters (APA, Committee on Professional Practice and Standards, 1998), in custody proceedings (APA, Committee on Professional Practice and Standards, 2009), and in other legal contexts (APA, Committee on Professional Practice and Standards, 2003). Guidelines for responding to subpoenas are provided by both the APA Committee on Legal Issues (2006) and the APA Practice Organization, Legal and Regulatory Affairs Staff (2008). Other APA documents address confidentiality issues with specific client populations. (See, e.g., APA Division 44, Committee on Lesbian, Gay, and Bisexual Concerns Joint Task Force, 2000; APA Working Group on Assisted Suicide and End-Of-Life Decisions, 2000; and APA Working Group on the Older Adult, 1998.) LAWS AFFECTING CONFIDENTIALITY Although confidentiality is first and foremost an ethical duty, there has been substantial legal recognition of its importance in the psychologist–client relationship (Koocher & Keith-Spiegel, 2008). It complicates matters, however, that while some laws support 338

the ethical goal of protecting confidentiality, other laws severely limit clients’ confidentiality rights by requiring psychologists to disclose confidential information. Some laws actually do both: Their underlying goal is to protect confidentiality, but they impose broad legal limits on that protection. The laws having both protective and limiting functions are included in both of the following sections.

Laws Protecting Confidentiality Laws protective of confidentiality include (a) nondisclosure laws, which apply to confidentiality generally; and (b) privileged communications laws, which apply only in legal proceedings. Although the concepts of confidentiality and privilege both involve the client’s right to privacy, it is important not to confuse them. Confidentiality is a broad ethical duty that has legal support, whereas privilege is a specialized legal concept that applies only in the context of a legal proceeding. The distinction has “critical implications for understanding a variety of ethical problems” (Koocher & Keith-Spiegel, 2008, p. 195). Nondisclosure laws. Nondisclosure laws protect clients’ confidentiality rights by legally prohibiting mental health professionals from voluntarily disclosing confidential information without the client’s explicit consent. These laws provide legal support for the confidentiality rights protected by the profession in Standard 4.01, Maintaining Confidentiality. Such laws exist at both the federal and state levels and can arise through statutes, legal regulations, or case law. At the state level, licensure regulations and state agency regulations usually contain nondisclosure mandates. General statutes also can legally prohibit disclosure of confidential client information. Such nondisclosure laws vary widely from state to state, and psychologists are responsible for knowing the laws that prohibit disclosure in their own jurisdiction. At the federal level, the applicable laws and regulations will depend on the setting in which the psychologist works, as well as the type of client information that might be generated. The most prominent federal nondisclosure mandates arise from HIPAA (1996), which apply in any health care setting that electronically transmits identifiable client information. Note,

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however, that the HIPAA privacy regulations can be trumped or preempted by a state law that is more protective of clients’ privacy or confidentiality rights. The HIPAA regulations are composed of several separate rules.1 The HIPAA Transaction Rule (HIPAA, 1996, 45 C.F.R. § 162.900ff.) standardized the electronic exchange of client information, instituted computer safeguards such as encryption and passwords, and required a National Provider Identifier (NPI) for each provider. If a health care setting transmits client information electronically, it must comply not only with the Transaction Rule, but also with the Security Rule and Privacy Rule for all client data in the setting. The HIPAA Security Rule (HIPAA, 1996, 45 C.F.R. § 164) protects the privacy and confidentiality of client information that is stored electronically. It legally requires administrative, physical, and technical precautions far exceeding those ethically required by APA. Administrative requirements include implementation of policies addressing employee access to client information and breaches of security, provision for security of client data in case of emergency, security awareness training for all employees, and appointment of a security officer. (In a solo practice, this will be the individual psychologist.) Physical requirements include provisions about keys and staff access to specific levels of information, security of computer workstations, and procedures to ensure security when equipment is moved or data transported. Technical compliance requires implementing and monitoring procedures, such as encryption of transmitted information. The HIPAA Privacy Rule contains nondisclosure provisions and requires that clients receive a Notice of Privacy Practices (HIPAA, 1996, 45 C.F.R. § 164.520) explaining when information might be disclosed without their consent. It gives clients the legal right to inspect, copy, and request amendments to their official records. (For discussion of the distinction between official records and psychotherapy notes, see the section Record Keeping.) Clients also have the right to request that communications to them be made by certain means or directed only to specific locations, to request restrictions on certain uses and

disclosures to others involved in care or payment, and to receive an accounting of disclosures the psychologist made during the previous six years (except for disclosures that fall within the exceptions listed in HIPAA, 1996, 45 C.F.R. § 164.528). Finally, the setting must have a privacy officer who is responsible for compliance. (In solo practices, the owner may serve as both privacy officer and security officer.) The HIPAA Enforcement Rule (HIPAA, 1996, 45 C.F.R. § 160) stipulates that the Security Rule and the Transaction Rule are enforced by the Center for Medicaid and Medicare Services, whereas the Privacy Rule is enforced by the U.S. Office of Civil Rights. For violation of any HIPAA rule, civil penalties can be levied up to $100 per violation, capped at $25,000 for each requirement that is violated. A continuing violation is deemed a separate violation for each day it occurs. The newest HIPAA rule is the Security Breach Notification Rule (HIPAA, 1996, 45 C.F.R. § 164, Subpart D). Effective September 2009, breaches of confidential client information must be reported to the affected individual(s). Any confidentiality breach involving 500 or more clients must be promptly reported to the secretary of Health and Human Services and to the media (DHHS, 2009). Breaches involving fewer clients must be reported annually. Other 2009 changes broadened the Privacy and Security Rules to require a provider’s business associates to document all electronic disclosures and to allow clients access to their own electronic records. In education settings, federal nondisclosure regulations governing confidentiality and disclosure of information include the Family Educational Rights and Privacy Act (FERPA) and the Individuals With Disabilities Education Act (IDEA), both amended in 2009. Although an underlying goal is to protect confidentiality rights, like HIPAA, these regulations also contain exceptions that limit confidentiality by allowing certain disclosures without authorization. Finally, federal nondisclosure laws can be found in statutes and regulations that apply only in federally funded substance abuse treatment facilities. (See, e.g., the discussion of federal statutes and

1

The HIPAA summaries in this chapter provide limited information. The HIPAA regulations themselves are available at http://www.hhs.gov/ocr/hipaa. See links to other HIPAA information at http://www.CenterForEthicalPractice.org/HIPAA.htm.

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regulations protecting records of substance abuse treatment in Lombardo, 2000.) These laws not only provide additional confidentiality protections and expanded privilege protections, but also contain fewer exceptions to that protection. Psychologists who provide services in these settings must be familiar with these laws that grant special confidentiality and privilege rights to their clients. Privileged communications laws. The purpose of privilege is to limit or prevent the communications made in certain relationships from being used as evidence in court. Examples of privileged relationships include husband–wife, attorney–client, physician–patient, and priest–penitent, as well as psychologist–client or therapist–client relationships. Although all privilege laws contain exceptions that limit their protections, the information generated in a privileged relationship is less likely to be admitted into evidence in a legal proceeding. Ordinarily, clients hold the right to invoke the privilege, although some states recognize a secondary right on the part of a therapist to invoke privilege on behalf of and in the interest of the client. Clients can waive the privilege by giving consent for the psychologist to disclose confidential information. This consent generally is given based on advice from their lawyers. Clients usually are not permitted to exercise a partial waiver; so once a waiver is given, it likely will require disclosure of all material relevant to the case (Koocher & Keith Spiegel, 2008). Privilege laws exist at both the state and federal level. At the state level, the degree of privilege protection varies widely (Knapp & VandeCreek, 1987). In some states, the psychologist–client privilege statute is modeled after attorney–client privilege and provides strong protections. In other states, broad exceptions to privilege leave client information unprotected in court cases, especially custody cases (Gottlieb, Lasser, & Simpson, 2008). (See examples of state privilege laws in M. A. Fisher, 2008a.) In federal courts, psychologist–client privilege is protected under Rule 501 of the Federal Rules of Evidence. The U.S. Supreme Court strengthened federal privilege protections in their 1996 Jaffee v. Redmond decision. Legally speaking, that case is considered important because it confirmed and 340

widened therapist–patient privilege. Ethically speaking, however, the important thing about the case is that it reached the Supreme Court only because a clinical social worker refused to disclose information confided by her client (Beyer, 2000). Although the Jaffee decision applies only in federal court cases and allows some exceptions, it had broad national impact and often is quoted by those lobbying for better privilege protections at the state level.

Legally Imposed Limits of Confidentiality Laws that limit confidentiality usually are enacted from the perspective that certain societal interests take priority over a client’s right to confidentiality. Such laws can be divided into three basic types. First, laws can mandate that psychologists initiate a report or disclose certain information. Second, privilege laws can contain exceptions that allow others to obtain client information or records as evidence in a court case. Third, laws can grant others the right of access to client information or records or the right to redisclose information without the client’s consent. Following are brief descriptions of these three types of legally imposed limits on confidentiality. Later sections of this chapter will describe how psychologists can prepare to respond ethically to these laws that impose legal limits on clients’ confidentiality rights. (For example, see the sections Placing Laws Into Ethical Context and Step 4: Respond Ethically to Legal Demands for Disclosure later in this chapter.) One other potential limitation of confidentiality is not discussed in this section: A nondisclosure law may contain exceptions that allow psychologists to disclose information without the client’s consent in certain circumstances. Examples include the HIPAA Privacy Rule exceptions that allow disclosure for reimbursement purposes. However, these legal exceptions do not fall into the category of legally imposed limitations on confidentiality; they legally allow disclosure, but they do not legally require psychologists to disclose client information to anyone. Thus these exceptions are not discussed here but rather in a following section Avoid the Avoidable Disclosures. Laws mandating specific disclosures. Some laws require a psychologist to initiate a disclosure of confidential information, whether or not the client

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gives consent, on the basis that the safety of certain vulnerable members of society should have priority over a client’s right to confidentiality. For example, psychologists and other mental health professionals are among those legally mandated to report suspected abuse or neglect of children (Kalichman, 1999); most states have similar reporting laws that protect elderly or disabled adults; and some states require reports of domestic abuse in certain circumstances (Rosenbaum & Dowd, 2009). Finally, psychologists in some states are required to report peers who engage in professional misconduct or health care professionals in treatment whose condition is deemed to put the public at risk, even if this involves disclosing confidential information. A client’s threat to seriously harm others can sometimes trigger a disclosure mandate, but not always. Following the 1976 Tarasoff case in California, laws or court cases began requiring psychologists in many other states to take some action to protect those who are targets of a client’s planned violence. Often inaccurately referred to as “duty to warn” laws, jurisdictions that impose a duty usually have “duty to protect” laws (Benjamin, Kent, & Sirikantraporn, 2009). These laws allow several possible responses to such a threat, not all of which require the psychologist to warn a potential victim or disclose confidential client information (Welfel, Werth, & Benjamin, 2009; Werth, Welfel, Benjamin, & Sales, 2007). (Also see sections Step 4: Respond Ethically to Legal Demands for Disclosure, and Step 5: Avoid the Avoidable Disclosures.) Finally, cases of potential harm to self usually are addressed in state laws as exceptions to the nondisclosure requirement, rather than as a mandate to disclose. This means they allow (rather than legally require) confidential information to be disclosed in such circumstances. However, legal regulations governing state agencies and institutions, as well as policies adopted by private agencies or groups, sometimes require disclosure without client consent if that is deemed necessary for protecting the client’s safety. (More information on life-endangering patients can be found in Chapter 14 of this volume.) Exceptions to psychologist–client privilege. Privilege statutes always contain exceptions that allow

judges to order client information into evidence under certain circumstances (Knapp & VandeCreek, 1987). These exceptions arise from the perspective that the proper administration of justice sometimes requires the information confided to a psychologist to be made available as evidence. Exceptions to privilege vary widely from state to state (Glosoff, Herlihy, Herlihy, & Spence, 1997; Knapp & VandeCreek, 1987). The most common statutory exceptions to psychologist– client privilege are child abuse cases, involuntary commitment proceedings, and cases in which clients place their own mental health at issue in civil matters. Some states have other broad privilege exceptions that leave client information poorly protected if the client becomes involved in a legal matter. For example, two states have a judicial-discretion exception to privilege—the broadest and least predictable exception—allowing any judge, in any case, to order information held by a psychologist to be disclosed as evidence (see Communications Between Certain Mental Health Professionals and Clients, 2005; Communications Between Physicians [and Clinical Psychologists] and Patients, 2009; Communications Between Psychologist and Client or Patient, 1998). (Also see Step 4: Respond Ethically to Legal Demands for Disclosure.) Finally, whether or not this is mentioned in the privilege statute, the protections of psychologist– client privilege ordinarily will not apply if the psychologist is serving in certain forensic roles. For example, if conducting a forensic evaluation, the psychologist must begin by informing parties of the limitations of confidentiality and the possibility that information revealed by the examinee may be disclosed in court. (See section Psychologists in Legal Settings. Also see Volume 2, Chapter 6, this handbook.) Laws giving access to or allowing redisclosure of client information. Some laws grant others explicit access to confidential client information in certain circumstances. Like both of the previous categories, these laws give priority to the protection of others’ rights or safety, rather than protection of a client’s right to confidentiality. At the federal level, the most prominent example is the Patriot Act. Enacted shortly after September 11, 2001, it was designed to provide tools for gathering 341

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information about possible terrorists. In its original form, the act allowed Federal Bureau of Investigation agents to demand client information and to order the person not to tell anyone (including the client). As amended in 2006, the Patriot Act now includes better protections (Munsey, 2006, p. 15). At the state level, statutes in this category include those that apply in civil commitment proceedings. For example, statutes governing hearings for involuntary commitment may require that the records of current or former treatment be made available immediately without client consent if requested by the hearing officer, attorneys, guardians ad litem, or others. Finally, laws can allow those who receive confidential client information to redisclose it to someone else without the client’s further consent. These include wide-ranging laws: statutes allowing third-party payers to disclose in certain circumstances, regulations allowing state agencies to exchange information for treatment planning or discharge planning, and so on. PLACING LAWS INTO ETHICAL CONTEXT The partial overlap between Ethics Code and laws has created confusion about whether a difference really exists between the two, and if so, whether it matters. Ethically speaking, there is a big difference, and it matters a lot.

Distinguishing Between Ethics and Laws Psychologists’ ethical standards are developed by their own profession, and they define the conduct of all psychologists, regardless of their state or setting. Laws, on the other hand, are enacted by legislatures, written by regulators, or defined by court cases; and they vary widely from state to state. The difference is important for several reasons: First, it is important to know the difference between ethics and laws because familiarity with the laws that help protect client information can be important when carrying out one’s ethical duty to defend clients’ confidentiality rights. For example, when responding to a legal demand for disclosure, it can be useful to cite the relevant nondisclosure laws; and in contesting a subpoena, it can be ethically important to know the laws that govern the filing of a motion to quash the subpoena if the client does not want the information provided as evidence. 342

Second, it is important to be able to distinguish between ethical duties and legal requirements because when the two come into conflict, psychologists have an ethical obligation to understand that conflict and to try to resolve it in the direction of the Ethics Code (APA, 2010b). Third, psychologists faced with an ethical–legal conflict about confidentiality can best protect their clients if they have made some important ethical and personal decisions in advance. According to Knapp, Gottlieb, Berman, and Handelsman (2007), “at times, psychologists may decide to follow the law despite their ethical concerns. At other times, they may determine that a conscientious objection is warranted” (p. 54). In either case, the psychologist must understand the distinctions, predict the ethical–legal conflicts and their possible consequences, and make some difficult decisions in advance, using a structured decision-making process that takes into account both ethical duties and laws. Finally, one must be able to distinguish between ethics and laws because “if obeying the Ethics Code would result in disobeying the law, then legal advice is critical” (APA, Committee on Professional Practice and Standards, 2003, p. 596). Although attorneys are experts about laws, psychologists must be the experts about their own ethical duties and should be prepared to clearly articulate that perspective when obtaining legal consultation. Regrettably, much confidentiality training is now presented in the context of HIPAA training. Such legally based training is not a substitute for ethical training about confidentiality (M. A. Fisher, 2008b). By placing laws center stage, it loses the ethical focus and makes the ethics–laws distinction less clear. It tends to emphasize legal obedience (in protection of the psychologist) rather than ethical practice (in protection of the client). Comparing the HIPAA regulations with the Ethics Code (APA, 2010b) provides an opportunity to clarify the difference between laws and ethical duties. The two overlap significantly, so “even those health care psychologists who are not covered by HIPAA may want to consider complying with its standards” (Knapp & VandeCreek, 2006, p. 113). For example, the nondisclosure provisions of the Privacy Rule support the profession’s confidentiality

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rule; and the Notice of Privacy Practices (HIPAA, 1996, 45 C.F.R., § 164.520) overlaps with the Ethics Code’s standards that protect a client’s right to be informed about the limits of confidentiality. In some respects, the HIPAA protections far exceed APA ethical requirements. For example, HIPAA legally requires that information about limits of confidentiality be presented to clients in writing and that each setting appoint a privacy officer and a security officer to ensure compliance. Clients are given the legal right to inspect, copy, and request amendments to their official records; to request that confidential communications be made by alternative means or directed to alternative locations; to request restrictions on certain uses of information; and to receive an accounting of certain disclosures. Finally, whereas the Ethics Code contains no explicit requirement for staff training, HIPAA requires “workforce training” that teaches everyone in the setting how to protect confidentiality rights (HIPAA, 1996, 45 C.F.R. 184.530(b)(1)). In other respects, however, HIPAA is much less protective of clients’ confidentiality rights. Unlike the Ethics Code, the Privacy Rule contains no true informed consent provision. The client’s signature on a Notice of Privacy Practices merely acknowledges that the form was received, and this does not suffice for the ethically required informed consent process. Most important, HIPAA legally allows clinicians to disclose broad categories of confidential information for “treatment, payment, and health care operations” (HIPAA, 1996, 45 C.F.R. § 164.502(a)(1)) without informing the client about the content of those potential disclosures or obtaining the client’s authorization when making them. (See Step 5: Avoid the Avoidable Disclosures.) As noted, however, state laws more protective of patient privacy would trump the HIPAA Privacy Rule and could require consent for such disclosures, even if HIPAA permitted them.

Integrating Ethical Standards and Legal Requirements Listing the relevant APA standards in numerical order (see Table 13.1) gives no clues about the relationship between ethical duties and legal demands. As noted by Hansen and Goldberg (1999), “Without

a comprehensive organizing schema, professional psychologists cannot be expected to grasp intuitively the conflicting demands” (p. 496), and this creates difficulties both in practice and in training. Without a shared framework, simple conversations about confidentiality can become complicated, whether in case consultations with peers or in formal consultations with professional advisers, ethics offices, or legal consultants. The categories in Table 13.2 provide a coherent picture of psychologists’ ethical obligations on behalf of clients’ confidentiality rights, but even this system does not reflect how laws fit into the ethical picture. For structuring the discussion that follows, we therefore will use my ethics-based practice model (M. A. Fisher, 2008b). This six-step model (see Table 13.3) is built on psychologists’ ethical standards and reflects the interrelationship among the many different ethical duties. (See the final column of Table 13.1 to fit each standard into the model.) This model also places into ethical context both the laws that protect confidentiality and the laws that can limit it. In effect, this model provides an outline of the ethics of conditional confidentiality. Using the categories of Table 13.2, it is easy to see how Steps 3 and 5 reflect the key standard or confidentiality rule, as well as the clarification, amplification, and application standards. Steps 2 and 4 then reflect the ethical impact of legally imposed exceptions to the confidentiality rule. The model is consistent with Behnke’s (2004) metaphor about the three ethically available doors to disclosure. The “client consent door” is addressed in Step 2 (obtaining a prospective client’s consent to accept the general limits of confidentiality in that setting, as a condition of receiving services), in Step 3 (obtaining consent for client-specific voluntary disclosures), and in Step 5 (avoiding voluntary disclosures for which no consent was obtained). The “legal mandate door” is the focus of Step 4. The “legal permission door” has different ethical implications, however, as reflected in Steps 2 and 3; and it raises the further cautions discussed at Step 5. Like the Ethics Code on which it is based, this model gives psychologists the ethical freedom to place limits on confidentiality in their own setting, as long as clients are informed about these policies in advance 343

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TABLE 13.3 An Ethical Practice Model for Protecting Confidentiality Rights Step 1: Prepare A. Understand clients’ rights and your ethical responsibilities in behalf of those rights B. Learn the laws that can affect your ability to protect confidential information C. Clarify your personal ethical position about confidentiality and its legal limits D. Decide when/how you will limit confidentiality voluntarily in your setting E. Develop plan for ethical response to laws that require you to disclose “involuntarily” F. Choose reliable ethics consultants and legal consultants and use as needed G. Devise informed consent forms that reflect your real intentions H. Prepare to discuss confidentiality and its limits in understandable language Step 2: Tell clients the truth up front (inform client consent for services) A. Inform prospective clients about the limits you intend to impose on confidentiality B. Explain any roles or potential conflicts of interest that might affect confidentiality C. Obtain informed client’s consent to accept limits as a condition of receiving services D. Reopen the conversation if/when patient’s circumstances (or your intentions) change Step 3: Obtain truly informed consent before disclosing information voluntarily A. Disclose without client consent only if legally unavoidable B. Inform client adequately about the content and implications of potential disclosures C. Obtain and document the client’s consent before disclosing Step 4: Respond ethically to legal demands for disclosure A. Notify client of pending legal requirement for a disclosure without the client’s consent B. Respond ethically to legal obligations according to plan (from Step 1E) 1. Laws requiring psychologists to initiate disclosures (e.g., reporting laws) 2. Exceptions to privilege in court cases 3. Laws giving access to or allowing redisclosure of client information C. Protect confidentiality rights to extent legally possible; use protective laws when available Step 5: Avoid the avoidable disclosures A. Avoid making unethical exceptions to the confidentiality rule B. Establish and maintain protective policies and procedures; train nonclinical staff C. Monitor note taking and record-keeping practices; conduct staff training D. Avoid dual roles that might create conflicts of interest about confidentiality E. Anticipate legal demands; empower clients to act protectively in their own behalf F. Protect client identity in presentations, research, consultations G. Prepare a professional will to protect client confidentiality in event of illness or death Step 6: Talk about confidentiality A. Model ethical practices; confront unethical practices B. Provide peer consultation about confidentiality ethics C. Teach ethical practices to students, supervisees, and employees D. Educate attorneys, judges, consumers, and the public

Note. Adapted from “Protecting Confidentiality Rights: The Need for an Ethical Practice Model,” by M. A. Fisher, 2008, American Psychologist, 63, p. 7. Copyright 2008 by the American Psychological Association.

and consent to accept them as a condition of receiving services. The overall ethical framework of this model would apply in any setting, but the legal details will vary from state to state, and sometimes from setting to setting within a state. Step 1 reflects the importance of learning the laws and regulations that will apply in one’s own setting, including those that protect confidentiality and those that limit it. Only when so prepared is the psychologist ready to initiate the 344

informed consent conversation in Step 2, which includes a discussion of potential legally imposed disclosures. At Step 4, state laws limiting confidentiality take center stage, with an emphasis on responding ethically when they arise. Finally, Step 5 reflects how psychologists can avoid the ethical risks that arise from making unnecessary disclosures when the unprotective laws are not understood or when protective laws are ignored. For example, by being familiar

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with their state’s laws, psychologists can cite the protective nondisclosure laws and privilege laws when they are defending against demands for disclosure of information that the client does not want disclosed; and they can study the unprotective laws that mandate disclosure without client consent to plan how to respond ethically when such legal demands arise. Psychologists can use this model in any role or setting. Here, the ethical details will be discussed as they would apply in clinical settings; but psychologists in other roles can incorporate details from other ethical standards specific to their setting (see M. A. Fisher, 2008b). The outline may seem simple, but carrying out these ethically required tasks can become complicated. This model systematizes and illustrates psychologists’ ongoing responsibilities about confidentiality, but when faced with a specific ethical dilemma at any step along the way, psychologists are strongly advised to use a structured ethical decision-making model (Barnett, Behnke, Rosenthal, & Koocher, 2007; Cottone & Claus, 2000; Hass & Malouf, 2005). No model should be treated as a substitute for familiarity with the Ethics Code itself. Although the Ethics Code does not always provide a clear answer, an early step in any professional decision-making process involves determining which standards or moral principles might apply in a given situation. (See, e.g., the ethical decision-making models offered by M. A. Fisher, 2005; Knapp & VandeCreek, 2006; Koocher & Keith-Spiegel, 2008; Pope & Vasquez, 2007.) Using a structured decision-making process is especially important when a confidentiality dilemma involves both ethical and legal issues, because deciding how to respond to an ethical–legal conflict can require difficult personal soul-searching as well as careful decision making (Knapp et al. 2007). (More information on ethical decision making can be found in Chapter 4 of this volume.) PROTECTING CLIENTS’ CONFIDENTIALITY RIGHTS USING AN ETHICS-BASED CONFIDENTIALITY PRACTICE MODEL The following sections describe how psychologists can protect patients’ confidentiality rights using a six-step ethics-based practice model.

Step 1: Prepare Ordinarily, a psychologist’s ethical obligations toward a client do not begin until the relationship begins. In the 21st-century legal climate, however, protection of a client’s confidentiality rights may need to begin before the prospective client enters the consulting room. Until they first inform themselves, psychologists will be unable to accurately inform prospective clients about confidentiality’s limits; and unless they have made some important personal decisions in advance, they may not be able to live up to the confidentiality promises they make at intake. Preparation about confidentiality is rarely mentioned in the professional literature and often is ignored both in clinical training and in practice (M. A. Fisher, 2008b). Yet, without careful planning, psychologists will be unprepared to carry out the subsequent steps in the model that are explicitly ethically required. It therefore is difficult to overstate the importance of Step 1: Prepare. Learning ethical standards and laws. When psychologists are not fully informed about their ethical duties, or about the potential legal limits of confidentiality in their setting, they place both the client and themselves at significant risk (Bennett et al., 2006; Younggren & Harris, 2008). Psychologists should first become familiar with the standards listed in Table 13.2, because these form the ethical floor of confidentiality. To protect their clients’ confidentiality rights, they not only must know their state’s laws but also must be prepared to respond to them ethically (M. A. Fisher, 2008b). Regrettably, many are not familiar with the legal details. Pabian, Welfel, and Beebe (2009) found that more than 75% of psychologists were unfamiliar with their state’s duty-to-protect laws, “believing that they had a legal duty to warn when they did not, or assuming that warning was their only legal option when other protective actions less harmful to client privacy were allowed” (p. 8). Psychologists thus were doubly unprepared: unprepared to inform clients accurately in advance and unprepared to respond to the crisis in a manner most protective of client rights. Laws affecting confidentiality can be separated into two categories, as in the earlier section of this 345

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chapter—(a) laws that support psychologists’ efforts to protect confidentiality and (b) laws that place limits on their ability to protect it. Some laws fall into both categories. Laws protective of confidentiality can be invoked whenever there is an ethical–legal conflict. Laws that limit confidentiality can be separated into categories that clarify their implications. At Step 1, psychologists can learn these laws well enough to be prepared to explain them accurately to prospective clients at Step 2 and to respond to them ethically in Step 4. Making difficult personal decisions. After informing themselves about ethical standards and laws, psychologists must make some difficult personal decisions. Clarifying one’s position about confidentiality involves more than knowing the words of one’s ethics code and the laws. Clarification requires weighing the potentially conflicting demands that arise from ethical duties, clinical considerations, agency policies, and laws (Behnke, 2005a; Donner, 2008; Hansen & Goldberg, 1999). It also requires balancing competing values (Behnke, 2001) and a willingness to grapple with the consequences of following one’s personal moral principles (Knapp et al., 2007). Jordan and Meara (1990) wrote that “the ideals of professional psychology must include conscientious decision making, but they also must include virtuous deciders, who emphasize not so much what is permitted as what is preferred” (p. 112). Instead of settling for the “ethical floor,” we can reach for the “ethical ceiling” (Knapp & VandeCreek, 2006, p. 9) by integrating ethical and legal rules with the profession’s aspirational ideals and our personal ethical values (Handelsman, Knapp, & Gottlieb, 2002). In other words, we can go beyond compliance with the Ethics Code’s minimum standards of behavior about confidentiality. (See Step 5: Avoid the Avoidable Disclosures.) To be prepared for honest conversations with prospective clients, psychologists must take responsibility for engaging in personal soul-searching about each law that can require them to disclose information without client consent: “Am I willing to risk the consequences of disobeying this law in order to protect a client’s confidences?” If not, one must be prepared to explain when this law requires

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something to be disclosed and to whom (M. A. Fisher, 2008b). When psychologists have weighed the competing interests of client confidentiality versus societal interests, and have decided which circumstances they personally believe create a valid reason for disclosing information without client consent, then these interests must be included among the “limits of confidentiality” to be discussed at intake (Step 2). Psychologists must not only decide what they should do in a variety of foreseeable circumstances—a difficult enough task—but also must be prepared to inform clients honestly about what they actually will do, which may be different. When such a circumstance does arise, psychologists are free to disclose, not because that disclosure is legally allowed, but because the informed client already gave consent to accept that limit on confidentiality as a condition of receiving services. Obtaining consultation. The preparation required at Step 1 is difficult for psychologists to implement on their own. Psychologists are responsible for developing individual policies that both protect clients’ confidentiality rights and protect themselves from liability, and those policies must take into account their ethics code, local laws and regulations, and agency policies. This is no easy task. Consultation is important at any stage of this process, but it is best to ask questions in advance and not wait until there is a confidentiality crisis. When dealing with a topic as complex and anxiety provoking as confidentiality, it is important to establish, in advance, safe places to obtain advice and support in the event of a future crisis or dilemma. When consulting about a specific case, however, APA Standard 4.06, Consultations, requires psychologists to “disclose information only to the extent necessary to achieve the purposes of the consultation” and to “not disclose information that reasonably could lead to the identification of a client/ patient” unless they have obtained “prior consent” (APA 2010b, p. 7). Both ethics consultation and legal consultation can be important. Ethics consultation can be obtained from the APA Ethics Office, from state professional associations, and from respected colleagues. Risk management advice and legal advice is

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available from some malpractice insurers or from a local attorney. Before obtaining legal consultation, however, it can be important to clarify the ethical issues. Attorneys are experts about laws; but psychologists must take responsibility for being the experts about the ethics of their own profession. Psychologists therefore should first be familiar with their ethical responsibilities, able to describe them clearly, and prepared to ask their legal questions from that perspective. When possible, they should seek consultation from an attorney familiar with mental health or administrative law and should be willing to seek second legal opinions, when warranted. Ethics texts are a valuable resource; they address both confidentiality and ethical decision making, and they often include vignettes about confidentiality. They do not supply details about each state’s legally imposed limits of confidentiality; but a list of relevant laws, and sometimes ethical advice specific to those laws, may be available from one’s state professional association. The legal categories in this model can be helpful for placing current laws and later legal changes into ethical context. Preparing a client handout. Finally, all that has been learned and decided must be reduced to a simple understandable statement about confidentiality and its limits. It should include the confidentiality rule, the exceptions that the psychologist will voluntarily impose in the setting, and the exceptions that can be imposed by law. The handout and informed consent conversation must be personalized to reflect each psychologist’s actual intentions about confidentiality and disclosure, which means that no canned information form will suffice. It can be useful to review and adapt the documents of respected peers in the same state or setting; but psychologists should exercise caution in relying solely on universal forms, such as Notices of Privacy Practices obtained at HIPAA workshops. These forms not only are unlikely to be intelligible to the average client (and often to the psychologist), but also are unlikely to match the actual policies in one’s setting. APA (2010c) provides a state-specific HIPAA notice that is more easily understood, but it will not include all the specifics that will apply in one’s

setting. Psychologists can supplement the HIPAA notice with a simply worded list of the circumstances in which they may disclose information without further consent from the client. For providing information to prospective clients, the confidentiality rule and a simple list of its foreseeable exceptions usually will fit on a single typed page. The information about exceptions can include a simple listing of disclosures required by law; voluntary disclosures imposed by policy in the setting; and potential access to confidential client information by staff, billing agents, answering services, and others.

Step 2: Tell Clients the Truth Up Front (Inform Client Consent for Services) This step reflects the ethical standards listed in Table 13.2 under the heading “Informing Prospective Clients About Limits of Confidentiality.” The informed consent conversation involves a specific process: (a) The psychologist informs the client, (b) the informed client gives (or refuses to give) consent, and (c) this process is documented. Standard 3.10, Informed Consent, requires that the conversation be conducted in “language that is reasonably understandable” to the client (APA, 2010b, p. 6); and Standard 10.01, Informed Consent to Therapy, requires that psychologists provide “sufficient opportunity for the client/patient to ask questions and receive answers” (p. 15). The Ethics Code does not require that this information be presented to clients in writing, but “many of the problems regarding confidentiality and privilege can be avoided through the appropriate use of written informed consent” (Younggren & Harris, 2008, p. 598). This same informed consent process applies both at Step 2 (during which the informed prospective client gives—or refuses—consent to accept the limits of confidentiality that will apply to all clients) and at Step 3 (during which the informed client gives—or refuses—consent for a client-specific disclosure.) In combination, these two conversations can open the client consent door to disclosure (Behnke, 2004, p. 78). The purpose of both conversations is to protect the client’s right to give “informed refusal” instead of consent. (More information on informed consent can be found in Chapter 12 of this volume.)

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Standard 6.04, Fees and Financial Arrangements, requires psychologists to also discuss payment arrangements “as early as is feasible” (APA, 2010b, p. 9). This topic overlaps with confidentiality, making intake the appropriate time to introduce a conversation about the types and amount of information that will be disclosed to third-party payers, and the possible implications of disclosing this information (Acuff et al., 1999). Pomerantz and Handelsman (2004) would agree. They revised their earlier informed consent questionnaire to emphasize the importance of providing sufficient information to help prospective clients make informed decisions about whether to seek third-party reimbursement. As noted in the next section, the content of the initial conversation with the client will need to vary. At the process level, however, the same issues will always apply.

(Standard 10.01, Informed Consent). The initial intake is the first—and sometimes the only— opportunity to protect the confidentiality rights of clients whose first comments may include information that is reportable or otherwise later unprotectable. To best protect clients and their rights, psychologists can structure their intakes to provide information about the limits of confidentiality before clients begin confiding things that the psychologist may later disclose without their consent. If the psychologist conducts telephone screening of prospective clients, discussion of the limits of confidentiality sometimes may need to begin there. A screening may need to be shortened if that client begins sharing too much sensitive information before being informed of the potential consequences. Honesty. This conversation offers clients their best (and sometimes their only) opportunity to protect their own rights about confidentiality, so it is important that psychologists not make (or by silence imply) confidentiality promises that they will be unable or unwilling to keep (M. A. Fisher, 2008b). Regardless of what confidentiality and disclosure policies will apply in the therapy setting, it important that psychologists establish them in advance, describe them accurately, and answer client questions honestly.

Content. Psychologists are the only source of accurate information about what confidentiality and disclosure policies will apply in their own setting. Although clinicians are ethically required to inform prospective clients about a long list of things (M. A. Fisher, 2006), it is important to cover confidentiality in detail, to allow clients to ask questions, and to be prepared to give honest answers, even if the answer is, “I don’t know; I’ll have to find out.” For deciding how much information to provide, Knapp and VandeCreek (2006) have suggested applying the “reasonable person” standard. How much would a reasonable person want to know? One way to apply this standard is to apply it to yourself and decide which (if any) potential limits of confidentiality you would not want to be informed about before you confided in the therapist, if you were in that client’s position. Psychologists must use their best judgment about how much detail to provide to each prospective client. Clients who understand the relevant protections and limitations of confidentiality are better able to decide whether to consent and confide, or whether to exercise their right to give informed refusal of services.

Clarity. Using simple language, the conversation should begin with a statement of the rule; otherwise, the rule will be obscured by the long list of exceptions. Psychologists are no longer ethically free to recite the old mantra, “Everything you tell me will remain in this room,” unless they are prepared to accept the legal and financial consequences of engaging in civil disobedience. But psychologists can still honestly begin with, “As a rule, I will disclose no information without your consent,” as long as they follow this statement by describing the exceptions to that rule and the additional “limits of confidentiality” in their setting.

Timing. An initial conversation about confidentiality’s limits must take place “at the outset of the relationship” (Standard 4.02, Discussing the Limits of Confidentiality), and in therapy relationships, it should be conducted “as early as is feasible”

Documentation of the initial informed consent process. Standard 3.10, Informed Consent, requires psychologists to “appropriately document written or oral consent, permission, and assent” (APA, 2010b, p. 6). Both client and clinician are

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protected if this documentation is in the form of a written contract (Harris & Bennett, 2005; Younggren & Harris, 2008). Obtaining written consent is legally required in some states. Regarding confidentiality, documentation should provide evidence that the client was informed (i.e., was given relevant written information about potential limits of confidentiality) and then gave consent to accept those limits as a condition of receiving services. Having the client sign the informed consent contract and giving him or her a copy to retain, both avoids misunderstandings and prevents later disagreements about whether the policies were accurately described in advance. Reopening the informed consent conversation. Standard 4.02, Discussing the Limits of Confidentiality, requires reopening the conversation whenever new circumstances may warrant. This could include changes in the client’s circumstances (as when entering a custody battle), changes in the laws that limit confidentiality, changes in the psychologist’s disclosure policies, or any circumstance that increases the risk that confidential information will be disclosed. It also might need to be revisited if the client’s diagnosis or mental status changes, or if the client seems not to understand or remember the limits of confidentiality that were described at intake. In other words, informed consent is not a single event. It is a process that should be integrated into the professional relationship from its beginning through its completion (Barnett, 2007; Pope & Vasquez, 2007).

Step 3: Obtain Truly Informed Consent Before Disclosing Information Voluntarily The phrase truly informed is a reminder that obtaining informed consent involves more than obtaining a signature on a consent form. Similar phrases include “appropriately informed” (APA, Committee on Professional Practice and Standards, 2009, p. 13), “fully informed” (VandeCreek, 2008, p. 373) or “thorough informed consent” (Werth, Welfel, Benjamin, & Salacka, 2007, p. 4). Such phrases reflect the importance of explaining the nature and extent of the information that will be disclosed, as well as any foreseeable negative consequences, before obtaining consent to disclose it.

The term voluntarily is a reminder that Step 3 deals with disclosures that the psychologist is legally free not to make and for which the client is free to withhold consent. This step protects the client’s right to give informed refusal instead of consent. Ethically speaking, it is important to distinguish these voluntary disclosures from the involuntary disclosures of Step 4, which may be legally compelled regardless whether the psychologist wants to disclose and even if the client objects. Although the informed consent process is the same here as in Step 2, the context differs. At intake, the psychologist obtained the prospective client’s consent to accept the limits of confidentiality that will apply to all clients. Here, at Step 3, the psychologist obtains the client’s consent for client-specific disclosures (such as disclosures to another professional, family member, school or agency, third-party payer, etc.). Step 3 can occur either at intake or at any time later when the psychologist needs to obtain consent for a client–specific disclosure. Step 3 of this practice model includes obtaining consent for those disclosures, which, although not legally required, are legally allowed. The Ethics Code does treat legally allowed disclosures as ethically allowed exceptions to the confidentiality rule (Standard 4.05, Disclosures). As noted by the APA Ethics Office, however, these disclosures do raise difficult ethical issues unless informed consent has been obtained (Behnke & Kinscherff, 2002). For this reason, any disclosure that is not legally required is treated as voluntary within this model. Psychologists should obtain the client’s consent, preferably at intake (Step 2), for those legally allowed disclosures they want to be ethically free to make. Many legally allowed disclosures would be considered unethical to make without client consent if they were not deemed legal. Foremost among these is disclosure for reimbursement purposes, which legally is allowed by HIPAA and by some state laws without client authorization, once an initial notice is provided. Psychologists themselves may experience such disclosures as involuntary (because they feel financially coerced); ethically speaking, however, disclosures to third-party payers are always voluntary. Therefore, under this model, they require the client’s informed consent. It is not possible at the 349

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initial informed consent interview (Step 2) to know exactly what information may later need to be disclosed to a third-party payer. Therefore, psychologists obtain consent for specific reimbursement disclosures at Step 3. (This issue is explored further in Step 5: Avoid the Avoidable Disclosures.) In states that give minors the legal right to consent to treatment without parental involvement, minors themselves may be legally able to give (or to refuse) consent for disclosures (APA, 2005). Otherwise, Standard 3.10, Informed Consent, requires psychologists to obtain consent from the person(s) with legal authority to give it, while also attempting to obtain the minor’s “informed assent,” taking “reasonable steps to protect the individual’s rights and welfare” (APA, 2010b, p. 6). (Also see section Minor Clients.)

Step 4: Respond Ethically to Legal Demands for Disclosure No practice model would be useful if it ignored the fact that laws can limit the ability to protect client confidences. Although the obligation to protect confidentiality applies across all professional roles, psychotherapists are most likely to receive demands for confidential client information. According to Behnke (2007a), “By virtue of the special relationship that develops in psychotherapy … confidential information communicated in that setting is more often the subject of struggles between psychologists and outside individuals or entities” (p. 62). Like the Ethics Code, this model permits psychologists to disclose when mandated by law; otherwise, they would be required to engage in civil disobedience whenever they faced a legal demand to disclose information. But the model does advocate that psychologists respond ethically to the existence of such laws and not disclose lightly. Ethical response includes using the laws that protect confidentiality (Step 1); advising clients in advance about laws that limit it (Step 2); and, unless the client gives explicit consent otherwise (Step 3), resisting disclosure to the extent appropriate (Step 4). The model is ethics based, meaning that the emphasis is not on legal obedience, but rather on being prepared to respond carefully and ethically to disclosure laws to protect clients’ confidentiality rights to the extent legally possible. 350

Laws that demand disclosure of client information explicitly give priority to protection of the rights or safety of others in society, rather than to protection of the client’s right to confidentiality. In weighing ethical duties against legal demands, Donner (2008) has suggested that psychologists should stop balancing the rights of society against the rights of clients in a way that gives the latter too little weight and instead should return to a “more unbalanced position where confidentiality is once again the primary ethical obligation of all psychologists” (p. 372). C. B. Fisher (2008) disagreed, noting that while the Ethics Code describes confidentiality as a primary obligation, it does not treat it as the primary obligation; instead, it describes such competing obligations as laws, institutional rules, and professional or scientific relationships. She has argued that because the APA ethical principles and standards are not hierarchical, confidentiality is not at the top of a pyramid of ethical obligations, but rather must be balanced against these other equally important professional, moral, and legal considerations. VandeCreek (2008) agreed with C. B. Fisher’s comment that confidentiality is not always primary, and may, in some circumstances, be trumped by other principles. He has suggested a principle-based approach that both preserves client autonomy and provides a safe climate for treatment, through a combination of meticulous protection of client confidences and special care in informing clients about the limits of that protection. When faced with an ethical–legal conflict, psychologists should avoid hasty disclosure. There is an ethical duty to make known one’s commitment to the Ethics Code and to take steps to resolve the conflict (APA, 2010b), and this requires knowing the difference between ethics and laws. As Kipnis (2003) cautioned, “The mistake is to move from a premise that some action is legally required to a conclusion that it is ethically required” (p. 1). At Step 4, psychologists will need to insert the legal specifics of their own state and setting. For planning purposes, one can first list the state laws protective of confidentiality; then list laws potentially limiting confidentiality, using the following three categories. Each type of law requires different preparation in Step 1 and a different ethical response

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in Step 4. Clients should have been informed about these laws at Step 2 and will have given consent to accept these limits of confidentiality as a condition of receiving services. Nevertheless, when legal demands do arise, well-prepared psychologists can attempt to prevent or limit disclosure, if appropriate. Responding ethically to laws requiring psychologists to initiate a disclosure of information. State laws can require psychologists to initiate reports of such things as child abuse, elder abuse, or unprofessional conduct by a licensed peer professional. Some states also require reports if a psychologist or hospital is treating a licensed health care professional whose condition might place the public at risk. When such reportable circumstances arise, psychologists can raise the issue with the clients, who may decide to participate in making the report or to make it themselves. Otherwise, psychologists can begin with a hypothetical report, protecting the client’s identity while determining whether a report actually is required legally. If no report is required, no confidential information has been disclosed. If made, the report should disclose only the information germane to that purpose. Most states require psychologists to report peer misconduct to licensing boards or ethics committees. The reporting criteria vary and ordinarily psychologists are required to report only those professionals licensed by their own board, thus serving as peer monitors for their own profession. The Ethics Code does not require psychologists to confront a colleague or report misconduct if doing so would require them to violate client confidentiality rights. For psychologists whose state laws do not similarly protect confidentiality, there is no easy way to resolve this dilemma. Psychologists can seek consultation in advance, while considering their own position about how to respond to this legal requirement. They also can seek support for carrying out their plan if the situation arises. Most important, psychologists who intend to comply with a reporting requirement should discuss this with prospective clients in the initial informed consent interview. Absent client consent (obtained at intake or later), psychologists have no ethical basis for disclosing

confidential information to report misconduct unless so required by law (Behnke, 2006; Knapp & VandeCreek, 2006). Unlike reporting laws, duty to protect laws do not always require the psychologist to disclose confidential information. These laws usually impose a duty to protect—not a duty to warn—and most allow psychologists several options for responding to the threat in a way that protects the intended victim. Unless one lives in a jurisdiction that requires breaking confidentiality, the law will provide other options (e.g., intensification of treatment, hospitalization), so disclosure may be the option of last resort (Werth, Welfel, Benjamin, & Salacka, 2007). Werth, Welfel, Benjamin, and Sales (2007) wrote, Focusing on warning rather than on other alternatives fundamentally misrepresents both the legal and the ethical duty of clinicians in most jurisdictions and leaves clinicians vulnerable to overlooking the need to protect potential victims with potentially other, more desirable methods than a warning. (p. 250) More information on life-endangering patients can be found in Chapter 14 of this volume. In any of these circumstances, psychologists faced with a reporting requirement for the first time may realize too late that they were unaware of the existence of such a law or that they had not adequately informed the client at intake about this potential limit of confidentiality. This situation can present an opportunity to return to Steps 1 and 2, revise the informed consent forms, and expand the initial discussion of limits of confidentiality at intake, ensuring that prospective clients are thoroughly informed about such potential disclosures of confidential information about their treatment. Responding ethically to exceptions in privilege laws: Subpoenas and court orders. Privilege laws contain exceptions that allow a psychologist’s records or testimony to be entered as evidence in a court case. Although privilege laws and their exceptions will vary from state to state, guidelines from the APA’s Committee on Legal Issues (2006) and the 351

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APA Practice Organization’s Legal and Regulatory Affairs Staff (2008) are useful in any state. Most ethics texts also include detailed recommendations about subpoenas, as does the risk management manual from the APA Insurance Trust (Bennett et al., 2006). State associations or agencies sometimes provide statespecific recommendations about responding to subpoenas, but these often apply in other states as well (e.g., M. A. Fisher, 2009a, and Virginia Psychological Association, 2009, for Virginia; Baturin, Knapp, & Tepper, 2003, for Pennsylvania; Moats & Johnson, 2004, for Ohio). (More information on forensics can be found in Volume 2, Chapter 6, this handbook.) On paper, a subpoena might appear to be the same thing as a court order; but legally they are very different, and this difference has ethical implications. Subpoenas are issued by attorneys or other parties who wish to discover or obtain information that might be helpful to their case, and they can be contested. Court orders are issued by judges. If the judge orders the information disclosed, psychologists are required legally to disclose it. However, if they are concerned about possible harm from the disclosure, they can request that the judge reconsider the order (Bennett et al., 2006; Knapp & VandeCreek, 2006). It is ethically and legally important for psychologists not to treat an attorney’s discovery subpoena as if it had the legal authority of a judge’s court order. It is a legal mistake to ignore a subpoena: One must respond in some manner within a specified time; otherwise, one may lose the right to respond later. At the other extreme, it is an ethical mistake (and in some states also a legal mistake with legal consequences) to treat a subpoena as if it were a court order and disclose too quickly, without notifying the client or attempting to limit or prevent the disclosure. As noted by Bennett et al. (2006), a subpoena requires some response, but psychologists are prohibited from releasing records or providing testimony merely on the basis of the receipt of a subpoena. Bennett et al. (2006) explained, “In general, a psychologist may only disclose information with the consent of the patient or in response to a court order. The receipt of a subpoena alone without the consent of the patient does not override this requirement” (p. 111). 352

Absent client consent or a court order, psychologists should take appropriate steps to protect patient privacy, even if it means seeking to quash a subpoena (APA, Committee on Legal Issues, 2006). A client’s attorney or, in most states, the psychologist or the psychologist’s attorney can file this motion. Beware of bad advice. The APA Insurance Trust advises that psychologists consider seeking independent legal counsel if they feel bullied by attorneys who apply undue pressure to disclose or who misinform psychologists about their legal obligations and instruct them to release records in response to a subpoena alone (Bennett et al., 2006). Responding ethically to laws that give access to or allow redisclosure of information. In certain circumstances, others can legally obtain access to records without the client’s consent or can legally redisclose what a psychologist has disclosed to them. This makes it important to include in the initial discussion of confidentiality (Step 2), and in the informed consent conversation about specific disclosures (Step 3), a discussion of the implications of these laws whenever they seem applicable. At the federal level, the Patriot Act now contains safeguards that psychologists should be prepared to invoke if someone demands client records under authority of that Act (Munsey, 2006). As amended in 2006, the Patriot Act stipulates that FBI agents must “show reasonable, factual grounds to believe that the records sought … are relevant to a terrorism investigation and … pertain to the activities of a suspected terrorist or person in contact with a suspected terrorist”; they must provide a judge’s order specifying exactly what the court is ordering the psychologist to produce; and they must allow the person “to consult with an attorney and file a challenge to a records request with a FISA [Foreign Intelligence Surveillance Act] court judge” (Munsey, 2006, p. 15). APA advises that it is important not to disclose too quickly: “Obtain legal advice or assistance in responding to an order” from the FISA court (APA, Government Relations and Communications Staff, 2006, p. 1). Depending on the state’s laws, clinical records about a minor child may be legally available to parents at any time or accessible to others without

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parental consent in certain circumstances (e.g., if the minor is being evaluated for involuntary commitment). In many states, court-appointed special advocate volunteers are given legal access to the records of minors in court cases involving abuse or neglect. This access introduces the risk of redisclosure by those advocates when they consult with others or testify in later court proceedings. In such circumstances, the psychologist sometimes can limit the disclosure (e.g., by providing an oral or written summary appropriate to the circumstance, rather than providing clinical records). Finally, to reduce inappropriate redisclosures, any records, reports, or other information released by the psychologist can bear a notice such as, “Confidential. Not to Be Re-Released.” In states where it is illegal to redisclose information without obtaining the client’s further consent, quoting the relevant statute gives legal weight to that warning. Once information is released, however, both client and psychologist lose control over redisclosure. For example, a third-party payer legally may be allowed to redisclose information to a national database if the client later signs an application for health or life insurance. By providing the client with opportunities for autonomous decision making about what to release, and to whom, discussing such matters in advance does give the client some control.

Step 5: Avoid the Avoidable Disclosures This step is a reminder that most behavior about confidentiality remains entirely within the psychologist’s control. As used here, the term “avoidable” refers to voluntary disclosures that are made without first obtaining the client’s informed consent. Many of the APA ethical standards listed in Table 13.2 as clarification, amplification, and application standards are designed to prevent such disclosures. The following examples indicate how forethought and professional caution can reduce the chances of making inappropriate or unnecessary disclosures. Informal disclosures. This is the most easily avoidable type of disclosure. Informal disclosures range from inappropriate gossip in social settings to informal sounding-off conversations about clients with colleagues not involved with the case.

As Behnke (2007b) has noted, “Psychologists talk about patients for many reasons that can be beneficial; gossip is not among them” (p. 70). Standard 4.04, Minimizing Intrusions on Privacy, requires that psychologists discuss confidential information “only for appropriate scientific or professional purposes, and only with persons clearly concerned with such matters” (APA, 2010b, p. 7). Also avoidable are the work-related consultations that are inappropriate only because of where they are conducted, such as in public restaurants or agency hallways where they can be overheard. Such practices place clients at risk, thereby placing the psychologist at risk. A related area of risk involves psychologists’ client-related conversations with their own family members or friends. Unlike conversations with the client’s family for which the client has given consent, it is never ethical to disclose confidential information to individuals who have no involvement in the case. Such violations seem to occur regardless of psychologists’ level of training or years of practice and often arise when professional lives are inadequately separated from personal relationships (Woody, 1999). Psychologists can best avoid such disclosures by creating a firm boundary that avoids discussion of clients with family or friends, instead establishing regular, frequent opportunities to talk about cases on a professional basis. This can include formal consultation, peer consultation groups, or individual therapy in which difficult emotional reactions can safely be expressed, explored, and resolved. Overdisclosures. This category includes disclosures made in appropriate contexts but that disclose more than the client authorized or beyond what is needed in the circumstance. APA Standard 4.04, Minimizing Intrusions on Privacy, requires that psychologists “include in written and oral reports and consultations only information germane to the purpose for which the communication is made” (APA, 2010b, p. 7). This would preclude disclosures that contain private information for which the client gave no consent (e.g., disclosing personal sexual information in a progress report to a collaborating professional for whom that information is not relevant). In assessment reports, overdisclosures would 353

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include information not necessary for the purposes of a particular evaluation or not appropriate for explaining the results to a particular recipient (e.g., including medical information about family members who are not biologically related to the examinee when that is not directly relevant to the purpose of the evaluation or report). Disclosures to client-related third parties without client consent. Psychologists are not free to acknowledge someone’s client status or to engage in conversations about a client with the client’s spouse, family member, or friend unless the client gives consent. Psychologists do not initiate such contacts; and if they are initiated by others, psychologists are free only to listen, not to disclose. Emergency exceptions to this confidentiality rule need to be discussed with the client at intake. With competent adult clients, consent for contact with family members or others can be obtained either at intake (Step 2) or later (Step 3), as appropriate. With minors or incapacitated adults, rules about contacts with family or caretakers should be clearly established in advance and then carefully honored (see the sections Minor Clients and Older Adult Clients). If a parent is paying the bill for services to their adult child client (as often happens with college students), the client should give explicit consent after being informed about what information will be disclosed on the billing form. Failure to prevent preventable subpoenas. Psychologists who practice in states where client information is vulnerable to subpoena can reduce the likelihood of receiving a subpoena in a therapy case by including a no-subpoena promise in the initial contract with prospective clients (see samples at M. A. Fisher, 2004). This promise is especially helpful in couple and family cases, and it can discourage one client from initiating a subpoena to use information from the multiclient therapy as evidence in a court case. Such a promise does not constitute a legally binding contract, so it does not legally prevent the person from initiating a subpoena. Therapists who use this procedure, however, report that it can greatly reduce the likelihood that clients will do so. 354

In child and family cases, it is often good to include a statement in the no-subpoena agreement demonstrating that the family understands that the welfare of the child requires a zone of safety in which concerns can be discussed outside of a custody conflict. This statement can explain that entering a child’s therapy records into court in that context could be harmful to the child. When the parents sign this statement, it makes them more reluctant to enter therapy records into court—doing so would be a tacit admission that the parent knows this may harm the child and is doing it anyway. (Also see sections Multiple-Client Cases and Collateral Participants and Minor Clients.) Misunderstanding legal requirements or accepting bad advice. Earlier sections stressed the importance of learning the relevant laws and seeking good legal advice. Psychologists who misunderstand their state’s laws may disclose information believing it is legally required, when actually it is not (e.g., see Werth, Welfel, Benjamin, & Sales, 2007). Psychologists who accept legal advice from the wrong attorney (e.g., the attorney of the client’s adversary in a court case or an attorney unfamiliar with mental health law) are at risk for responding inappropriately to a subpoena or in other legal contexts (Bennett et al., 2006). It always is acceptable to ask who the lawyer represents if that is not already clear. Psychologists who have no reliable ethics consultant may accept from an uninformed colleague some advice that turns out to be misguided or unethical or illegal. Establishing trusted consultation relationships in advance can prevent such ethical and legal missteps. Role confusion or role multiplication. Role confusion can lead to confidentiality conflicts that are both clinically destructive and ethically difficult to resolve. Confidentiality issues often arise if psychologists are unclear about the confidentiality responsibilities of their role or if they take on conflicting roles in the same case. If we think of psychologists’ roles as the different hats they might wear, then to avoid this problem psychologists must (a) be very aware of exactly what hat(s) they are wearing, (b) avoid multiplying hats unnecessarily, and (c) refuse to wear potentially conflicting hats.

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For example, psychologists should say “no” when therapy clients think it a good idea for them to serve as evaluator in their custody case. The confidentiality duties and privilege protections for therapists are different from those for forensic evaluators (M. A. Fisher, 2010), so wearing both hats with the same client(s) can create confidentiality conflicts as well as conflicts of interest. It is easy to predict that the confidentiality risks to the client (and therefore the risks to the psychologist) are multiplied if a forensic hat is donned atop a therapist hat, especially if it is a multiclient therapist hat, as in couple or family cases (APA & American Board of Forensic Psychology, 2011; Berson, 2005; Strasburger, Gutheil, & Brodsky, 1997). (See the section Forensic Settings in this chapter and Volume 2, Chapter 6 of this handbook.) Poorly trained staff. Staff training is an essential component in the protection of clients’ confidentiality rights. Good training of both clinical and nonclinical personnel can prevent many “accidental breaches of confidentiality,” which Knapp (2002) defined as “unintended lapses or unanticipated problems” in contrast to legally authorized exceptions or “intentional gossip” (p. 6). This ethical practice model can be used for the confidentiality section of a broader ethics-based staff training program. (See the section Ethics-Based Staff Training About Confidentiality and Records.) Disclosures to third-party payers without fully informed consent. The fact that a third party is reimbursing for services does not, in itself, entitle that party to any information about the client without the client’s consent. Psychologists place clients at risk if they treat disclosures to insurance companies and managed care organizations as if they were special exceptions to the ethical rule. Beck (1990) suggested that figure–ground reversal had become common in this area of practice, with “disclosure without consent” being treated as if that were the rule rather than the exception. As an ethical issue, this problem is not new (Smith, 1981), but it received increased attention as managed care organizations began requiring practitioners to submit greater amounts of client information (Acuff et al., 1999; Alleman, 2001).

As discussed in Step 3, it is true that legally, HIPAA and some state laws allow disclosures to third-party payers without specific consent from the client. Ethically, however, not only is client consent required, but also it must be informed consent. Clients are best protected if they are asked to give consent for release of information to third parties only after being fully informed about what will be disclosed and the implications of disclosure (Koocher & Keith-Spiegel, 2008). VandeCreek (2008) noted that “principles of confidentiality and client autonomy suggest that providers need to fully inform their clients about the nature and content of the records that will be released” (p. 373). Before billing an entity other than the client (e.g., referring agency, family member, etc.), the psychologist should inform the client about what information will be provided on the billing statement, obtain the client’s consent to disclose that information, and clarify whether a provider contract or other relationship permits (or requires) that further information also be disclosed to that party. Regrettably, what often happens instead is that a psychologist asks prospective clients to sign a consent form allowing all future disclosures to thirdparty payers without any way to inform them in advance about exactly what will be disclosed and without discussion of the potential risks of that disclosure (e.g., possible implications for future life or health insurance, depending on the diagnosis). Similarly, without being informed about the implications, insured clients signed a consent form below the fine print on their original application for health insurance, giving the insurer permission to gather all the information they require to provide reimbursement under that policy. Both of these signatures represent uninformed consent, which does not qualify as the informed consent that is ethically required. Clinicians and their staff are accustomed to routinely transmitting private and sensitive information to third-party payers without adequately informing the client about what is being transmitted. Instead, the usual rule of thumb for protecting the client’s rights includes describing treatment plans, diagnosis, and other specific information at the time of transmission and obtaining the client’s consent to disclose this information (Acuff et al., 1999, p. 570). 355

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VandeCreek (2008) explained, “The most complete way to fully inform clients is to share the record (or the information to be disclosed) with the client before sending it on. Only then is the client fully informed” (p. 373). Disclosures to referral sources and other professionals. When psychologists receive referrals, it is natural to want to acknowledge the referral and perhaps thank the referring individual or agency. This professional courtesy usually does not disclose any personal information confided by the patient, but it does disclose the fact that the client sought or is receiving mental health services—a fact that should not be disclosed without the client’s explicit consent except in an emergency. Discussing this at intake allows the psychologist to obtain consent or to uncover reasons why the client refuses consent. If the referral entity is an agency that will be paying for the services (e.g., social service agency, court, etc.), it is useful to have a formal written contract. What details will be provided on the billing statements? Will they expect progress reports or other access to information? The disclosure implications of such a contracted arrangement must then be discussed with the prospective client, in advance, as part of the informed consent conversation about limits of confidentiality (M. A. Fisher, 2009c). (Also see Standard 3.07, Third-Party Requests for Services, and Standard 3.11, Psychological Services Delivered to or Through Organizations.) Technological glitches. The ethical obligation to protect the security of computer-based data during storage and transmission is reflected in Standard 4.01, which requires the protection of confidentiality of client information “obtained through or stored in any medium” (APA, 2010b, p. 7). The APA Record Keeping Guidelines (APA, 2007) cover this area in detail, as does the federal HIPAA Security Rule. (See the section Electronic Records.) Psychologists’ responsibilities about technological safety extend beyond their own behavior. Staff carelessness in submitting electronic claims or accidentally dialing a wrong number on a facsimile machine can send confidential client information to the wrong destination. If staff members (clinical or nonclinical) are allowed to remove client data from 356

the setting, lost disks or stolen laptops quickly can undo the confidentiality of many clients. Inappropriate use of e-mail also places client privacy and confidentiality at risk. All such risks, and their implications, can be discussed in formal confidentiality training for staff. (See the section Ethics-Based Staff Training About Confidentiality and Records.) Abuse of legally allowed exceptions to confidentiality. Confidentiality is the rule, and it is ethically inappropriate for psychologists to seek legal rationalizations for making exceptions to the rule to disclose identifiable confidential information without the client’s consent. There are many legally allowed exceptions to confidentiality, including those in the federal HIPAA regulations that allow information to be disclosed without client authorization for purposes of “treatment, payment, and health care operations” (HIPAA, 1996, 45 C.F.R § 164.502(a)(1)). Many state laws contain similar exceptions to confidentiality. For example, Virginia’s Health Record Privacy (2010) statute, although protective of confidentiality in some respects, legally allows client information to be disclosed “in connection with the health care entity’s own health care operations or the health care operations of another health care entity” or “in the normal course of business” according to standards of practice within that setting. It is hard to imagine broader legal exceptions to the rule. Note, however, that these legal exceptions to confidentiality do not require anything to be disclosed without consent; they merely allow it. Such legally allowed disclosures have important informed consent implications (Behnke & Kinscherff, 2002; Smith, 1981). If one’s personal policy is to disclose information in certain routine circumstances, then this is what must be decided in Step 1 and explained to the client at intake (Step 2). The disclosure then is ethically appropriate because the client gave consent in advance to accept such disclosures as a condition of receiving services (or subsequently gave consent at Step 3) and not because the psychologist found a legal loophole that allowed it.

Step 6: Talk About Confidentiality Step 6 reflects psychologists’ responsibilities in professional relationships other than client relationships.

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As noted in Table 13.1, this responsibility includes ethical mandates about training, supervision, consultation, and peer monitoring. It comes into play if laws or organizational policies about confidentiality conflict with ethical practice. It also addresses actions such as education of the public and lobbying for legislative reform, neither of which are mandated by the Ethics Code. Training and supervision relationships offer opportunities to teach and model ethical practices about confidentiality before bad habits are learned (Vasquez, 1992). The ethical violations of clinical students and supervisees often involve violations of confidentiality (Fly, vanBark, Weinman, Kitchener, & Lang, 1997). It is important that their professional enculturation include clear training, as well as expectations for high ethical standards about this aspect of practice. The very nature of many training clinics requires that interns share more client information than ordinarily would be appropriate in clinical practice Good training clinics, however, carefully ensure that students understand the importance of respecting client confidentiality and do not misinterpret the sharing in clinics as a license to treat patient confidences lightly. In consultation relationships, participants can discuss confidentiality issues more easily if they share the same ethical framework. Using this ethicsbased practice model, consultants and consultees can clarify ethical misunderstandings, identify ethical dilemmas, and weigh the options for resolving ethical-legal conflicts. A shared framework also can help explain one’s ethical concerns to colleagues who do not adequately protect their clients’ confidentiality rights (see Standard 1.04, Informal Resolution of Ethical Violations). Because this model is consistent with the confidentiality standards of all mental health professions, psychologists can also use it for conducting multidisciplinary ethics-based training and consultation about confidentiality. This model can place legal-based HIPAA training into an ethical context and encourage multidisciplinary cooperation and collaboration about this aspect of practice. The Preamble of the Ethics Code notes a commitment to education of the public about the profession’s ethical standards. Regarding confidentiality,

conversations are needed to educate attorneys, judges, and others about such things as why psychologists’ confidentiality rules may change when they change roles. Both the Introduction and the Preamble to the Ethics Code mention “social intervention”; and, in their own states, psychologists can be advocates for legislative reforms that improve the legal protections of clients’ confidentiality rights (APA, 2010b, pp. 2–3). RECORD KEEPING This chapter has considered the confidentiality of any information a psychologist has obtained about the client, whether or not it was ever recorded. In this section, we consider only the client information that is written and stored on paper or in electronic form. APA provides guidance about record keeping in both the Ethics Code (APA, 2010b) and the Record Keeping Guidelines (APA, 2007). Many ethics texts also contain extensive information and recommendations about record keeping (e.g., Koocher & Keith-Spiegel, 2008; Knapp & VandeCreek, 2006). Agencies and institutions often impose specific record-keeping policies; and, in most settings, legal requirements also will apply. Legal requirements about records can be numerous. At the state level, licensing board and state agency regulations can impose record-keeping standards, and some states have general statutes containing stipulations about records. At the federal level, HIPAA regulations impose legal duties about privacy, confidentiality, security, and disposal of records. Medicare and Medicaid regulations also contain requirements about record content. In cases in which any of these legal regulations apply, they usually cover both paper and electronic records. Legally binding provider contracts with managed care organizations and other third-party payers also affect record content and record retention, and they usually stipulate access to records for such purposes as audits. In some settings, and with many insurers, records must follow the standards of the National Committee on Quality Assurance. Using the ethical practice model, psychologists can place such legal and organizational requirements into ethical context by learning them at Step 1, 357

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explaining their implications to clients at Step 2, obtaining consent at Step 3 before releasing records voluntarily, responding ethically to legal demands for records at Step 4, preventing security breaches at Step 5, and talking about confidentiality in Step 6.

Content of Records The APA Ethics Code contains no mandate about the content of records. However, the general purposes listed in Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, are expanded in APA Record Keeping Guideline 2, Content of Records, the most extensive of the 10 guidelines. It provides detailed lists of the information that a record of psychological services might include, as well as guidance for weighing the many considerations that must go into the decision about what to write down in a client’s record: A psychologist may determine what is necessary in order to (a) provide good care; (b) assist collaborating professionals in delivery of care; (c) ensure continuity of professional services in case of the psychologist’s injury, disability, or death or with a change of provider; (d) provide for supervision or training if relevant; (e) provide documentation required for reimbursement or required administratively under contracts or laws; (f) effectively document any decision making, especially in high-risk situations; and (g) allow the psychologist to effectively answer a legal or regulatory complaint. (APA, 2007, p. 995) Psychologists must examine all such considerations as they apply in their own practice, and then determine how they fit together, to create a record that will “convey a coherent, useful history of the treatment—a history that will serve both the psychologist and the patient well” (Behnke, 2005b). Legal record content requirements differ across state jurisdictions and practice settings, and also can vary depending on the purpose for which the records were created. For the client’s protection, however, psychologists should include in their records “only information germane to the purposes for the service 358

provided” and should remain “sensitive to the potential impact of the language used in the record” (APA 2007, p. 995). Legally binding provider contracts with third-party payers usually require that specific information be included within the record. According to the APA (2007), “Psychologists who sign but do not abide by such contracts will potentially experience a number of adverse consequences (e.g., required reimbursement of previously received funds, legal actions)” (p. 996). Clients sometimes request that the psychologist maintain limited records as a condition of clinical treatment (Gutheil & Hilliard, 2001). The APA Record Keeping Guidelines (APA, 2007) state that “the psychologist then considers whether treatment can be provided under that condition” (p. 996). It is important to weigh such a request against applicable ethical and legal standards, as well as clinical considerations (Bennett et al., 2006). It is recommended that psychologists not comply with a request that would require them to violate a professional standard of conduct, to keep records that are insufficient for ensuring appropriate levels of care, or to document so little that the record would not help another clinician provide continuity of care in the event the psychologist became unavailable. Koocher and Keith-Spiegel (2008) have recommended that psychologists write with the assumption that the client eventually will see the record. Knapp and VandeCreek (2006) reminded psychologists to “strive for objectivity … show sensitivity in what they place in patient records, exclude any gratuitous remarks, and use behavioral descriptions whenever possible” (p. 126).

Official Records Versus Psychotherapy Notes When the HIPAA Privacy Rule (1996) gave special confidentiality protections to the private notes maintained by some mental health care providers, it gave them the legal name of psychotherapy notes. That choice of terms was unfortunate because psychologists often use that phrase to refer to the official record of a client’s psychotherapy, whereas they have traditionally used the term process notes to describe their private notes. Under the HIPAA definition, “psychotherapy notes” are “detailed notes, recorded (in any medium)

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by a … mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session” (DHHS, 2007, p. 20). These notes must be used only by the therapist who wrote them, maintained separate from the medical record, and not be involved in the documentation necessary for health care treatment, payment, or operations. In contrast, the official records (in some settings called the “medical record”) are termed under HIPAA as a “system of records” or “designated record set” and are defined to include medication prescription and monitoring, counseling session start and stop times, modalities and frequencies of treatment furnished, results of clinical tests, and/or a brief summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date. (HIPAA, 1996, p. 23) These records contain information that HIPAA defines as protected health information (PHI). These legal distinctions apply in all health care settings that are required to be HIPAA compliant. Under HIPAA, the client has a legal right to access the official record but not the “psychotherapy notes” (unless this distinction is preempted by a state law that explicitly gives the client access to “psychotherapy notes”). Furthermore, the usual exceptions to confidentiality do not apply to “psychotherapy notes,” so psychologists may voluntarily release them to others only with explicit client consent (HIPAA, 1996, 45 C.F.R. § 164.508(a)(2)). To reap these legal advantages, however, they must be “kept separate from the rest of the record” and must be stored in such a manner that “only the psychologist who took the notes can access them, absent a HIPAA-compliant authorization from the client” (APA, 2007, p. 1000, footnote 10). Creating separate documents can offer some advantages. It allows therapists to keep both (a) an official record and (b) a more protected set of notes for their own purposes. However, this dual record keeping also has important disadvantages. These include not only the time burden involved in creating separate records, but also the need to coordinate

them and store them separately. Privileged communications laws ordinarily do not distinguish between official records and psychotherapy notes; so, in most states, the private notes are vulnerable if a subpoena is issued to capture “any and all documents” about the client (Bennett et al., 2006, p. 119). It is therefore unsafe to presume that going to the trouble of maintaining separate documents will always protect one’s personal notes. Psychologists who are unclear about the legal status of psychotherapy notes in their own state should obtain legal consultation and weigh the risks and advantages of keeping a private set of records.

Record Ownership and Responsibility Legal ownership of records can be governed by state law or by agency policy, so psychologists do not necessarily own the records they create. When serving as consultant to an individual, group, or agency, psychologists ordinarily retain ownership of the records they create in that capacity. When entering a new employment setting or joining a group practice, however, it is important to clarify record ownership at the beginning to minimize the likelihood of misunderstandings when the psychologist prepares to leave the setting (APA, 2007). Regardless of legal ownership, psychologists are ethically responsible for ensuring that their own record keeping is consistent with APA ethical standards. Psychologists working in organizational settings such as hospitals, schools, community agencies, or prisons are encouraged to participate in the development of policies involving record keeping and to strive to follow both those and the requirements of the Ethics Code (APA, 2007, p. 1000).

Confidentiality and Security of Records Most of the ethical duties listed in Table 13.1 are applicable to records, but the most specific requirements are contained in APA Standard 6.02, Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work: (a) Psychologists maintain confidentiality in creating, storing, accessing, transferring, and disposing of records under their control, whether these are written, 359

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automated, or in any other medium … (b) If confidential information concerning recipients of psychological services is entered into databases or systems of records available to persons whose access has not been consented to by the recipient, psychologists use coding or other techniques to avoid the inclusion of personal identifiers. (APA, 2010b, p. 8) The APA Record Keeping Guidelines (APA, 2007) contain more specific recommendations, many of which overlap with the HIPAA Security Rule (DHHS, 2003a). Like HIPAA, state laws about confidentiality of records ordinarily apply to both paper and electronic records.

Electronic Records Government agencies and third-party payers are strongly encouraging (in some cases, requiring) the use of electronic records (APA Practice Organization, Government Relations Staff, 2007). The military already requires this; hospitals are moving in that direction; and, at the national level, many are urging the development of a national electronic health records network. Meanwhile, Internet providers are inviting patients to store their own medical records in electronic health vaults to provide online access for better continuity of care. All of these trends raise privacy concerns (Bell, 2009). Compared with paper records, electronic records have advantages and disadvantages. Electronic records can be stored in a smaller space; they can be easily accessed and transported; and with the proper technology, their security can be monitored. On the other hand, when not encrypted and password protected, electronic records can allow unauthorized access; and when security policies are not strictly enforced, they are more vulnerable to being duplicated or being lost, even by authorized users (Sanbar, 2007). The vulnerability of electronic records has implications for client confidentiality. The APA Record Keeping Guidelines (2007) recommend that psychologists “take appropriate steps to protect records from unauthorized access, damage, and destruction” (APA, 2007, p. 998). Record Keeping Guideline 6, 360

Security, provides specific recommendations; and Guideline 9, Electronic Records, refers to safeguards legally required by the HIPAA Security Rule. A risk analysis such as those conducted by HIPAA security officers may be advisable whether or not the setting requires HIPAA compliance. Toward that end, the APA Practice Organization has made extensive HIPAA resources available to its members at http:// www.apapracticecentral.org. Creating protective policies and procedures is only the first step; clients are protected only if those policies are strictly enforced. Software safeguards such as encryption and passwords are useless if psychologists or their staff are careless with the hardware. One lost flash drive or stolen laptop can affect the confidentiality of many clients at once. Even secure records can be lost if a computer crashes and it has not been backed up recently. To avoid such events, clear policies must be in place to prevent client information, stored in any form, from being removed from the clinical site for any reason without the psychologist’s express permission. Additionally, regular backups should be required on all computers and such policies should apply to both clinical and nonclinical staff (M. A. Fisher 2009b). (Also see the section Ethics-Based Staff Training About Confidentiality and Records.)

Client Access to Records The Ethics Code (APA, 2010b) does not address the question of client access. The Record Keeping Guidelines (APA, 2007) mention only parental access to their children’s records, not access by adult clients to their own records. HIPAA regulations, however, explicitly give clients a right of access to their own official records or PHI, the right to make objections about their content, and the right to request that they be amended (HIPAA, 1996, 45 C.F.R. § 164.524; 45 C.F.R. § 164.526). Psychologists in HIPAA-compliant settings may deny client access if it would endanger the life or physical safety of the client or someone else. In most circumstances, however, the client “must be given the right to have such denials reviewed by a licensed health care professional for a second opinion” (DHHS, 2003b, p. 21). HIPAA does not give clients access to psychotherapy notes (i.e., the psychologist’s private

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process notes), but a recent amendment does give clients the right to information held by psychologists’ business associates (e.g., billing agents), including information in electronic form. Like HIPAA, some state laws now explicitly allow client access to records but not to psychotherapy notes. Psychologists in settings not covered by HIPAA will need to follow the laws and regulations that apply in their own state and setting. Most such laws contain exceptions similar to the HIPAA exceptions if access would endanger the client or someone else. Psychologists should obtain legal consultation if necessary to clarify this issue.

Responding to Requests for Release of Records The sections of this chapter that address disclosure of information also apply to records. This would include both voluntary (Step 3) and involuntarily (Step 4) disclosures. Standard 6.03, Withholding Records for Nonpayment, stipulates that psychologists may not withhold records requested and needed for a client’s or a patient’s emergency treatment solely because payment has not been received (APA, 2010b, p. 9). This standard would apply whether the client requests the record or gives consent for it to be released to someone else. It should be read in conjunction with HIPAA, which does allow patient access to records except in the limited circumstances described in “Client Access to Records.” Standard 6.06, Accuracy in Reports to Payors and Funding Sources, would apply when releasing client information or records to third-party payers or to funding sources. It requires that psychologists “take reasonable steps to ensure the accurate reporting of the nature of the service provided or research conducted, the fees, charges, or payments, and where applicable, the identity of the provider, the findings, and the diagnosis” (APA, 2010b, p. 9). One area of concern involves the rerelease of data that the psychologist has received from others. According to the APA (2007), “when the psychologist is releasing the client’s record, upon request and with consent, the psychologist is faced with the question of whether the client’s previous therapist’s records, for example, constitute a part of the record

and should be released” (p. 998). With voluntary release of records, this is ordinarily left to the psychologist’s discretion, and the decision may depend on the source and content of the information. Many prefer to request that the person seeking client records obtain all information from its original sources. If planning to rerelease others’ documents, it would be important to remind clients of what is in the record and to obtain explicit consent to rerelease the records that were obtained from others. (Some states legally prohibit rerelease unless the client’s explicit consent has been obtained.) Clients also need to be reminded and that once the records are released, they enter someone else’s records and both psychologist and client lose control over their rerelease. When faced with a legal demand for records, however, the psychologist may have no choice about whether to rerelease the information obtained from other sources. According to APA (2007), “when a psychologist is responding to a subpoena for ‘any and all records’ upon which the psychologist relied in forming opinions, it is generally necessary to re-release any third-party information included in the record” unless the subpoena can be quashed (p. 998). (Also see Step 4: Respond Ethically to Legal Demands for Disclosure.) Finally, the HIPAA Privacy Rule contains a “minimum necessary” provision that can affect psychologists’ requests, as well as their response to requests from others. This provision stipulates that “a covered entity may not use, disclose, or request the entire medical record for a particular purpose, unless it can specifically justify the whole record as the amount reasonably needed for the purpose” (HIPAA, 1996, 45 C.F.R. § 164.502(b) and § 164.514 (d)). If the psychologist is concern about the necessity for providing a complete record, he or she can discuss this with the requester and can offer to provide instead a more limited amount of information, perhaps as a treatment summary.

Planning for Endings, Disruptions, and Transfers Psychologists are responsible for making plans to ensure protection of client records in the event of their own absence or unavailability. According to 361

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When making decisions about how long to retain their records, and how to dispose of them, psychologists must consider recommendations from both ethical and legal sources.

whichever is later. Additionally, “in some circumstances, the psychologist may wish to keep records for a longer period, weighing the risks associated with obsolete or outdated information, or privacy loss, versus the potential benefits associated with preserving the records” (APA, 2007, p. 999). Legally, most states have laws or regulations addressing retention time for various types of clinical records. Some states allow records to be destroyed sooner than is recommended in the APA Record Keeping Guideline (APA, 2007), so psychologists must decide whether to destroy records as early as legally allowed or to retain them according to the APA. At the federal level, HIPAA regulations require that documents outlining one’s security rule policies be retained for 6 years. Finally, managed care contracts often stipulate retention times. Many of these legally binding contracts require providers to retain records not for a certain number of years after the patient contact ends, but rather for a certain number of years after the contract expires. In such a case, the required record retention time may be much longer than the ethically allowed minimum. Conscientious psychologists disagree on the advisability of retaining records beyond the ethically and legally required minimum time. Some prefer keeping records forever, on the grounds that access to an old record sometimes can benefit the patient or protect the psychologist. Others prefer destroying records as soon as legally permitted, noting both that the value or relevance of the records decreases as time goes by, and that as long as records exist, they might be obtained by others and used in ways that could harm the client. The exception might be for children with serious and pervasive disabilities, where the potential exists that the patient may apply for social security disability in the future, and older records can be useful in determining a history of their disorder.

How long must records be kept? APA Record Keeping Guideline 7, Retention of Records, contains the recommendation that, unless there is a superseding requirement (e.g., state law or agency policy), psychologists consider retaining full records until 7 years after the last date of service delivery for adults, or for 3 years after a minor reaches the age of majority,

How should records be destroyed? The Ethics Code (APA, 2010b) requires that psychologists dispose of records in a way that preserves their confidentiality (see Standards 6.01 and 6.02). The APA Record Keeping Guidelines similarly recommend that psychologists endeavor to “employ methods that preserve confidentiality and prevent recovery”

Standard 6.02, Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work, “psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists’ withdrawal from positions or practice” (APA, 2010b, p. 9). Such plans also would protect client records in the event of the psychologist’s “illness, death, unavailability, relocation, or retirement” (Standard 3.12, Interruption of Psychological Services, p. 6). In therapy settings, such protections should be in place from the beginning, “when entering into employment or contractual relationships” (Standard 10.09, Interruption of Therapy, p. 13). The APA Record Keeping Guidelines similarly recommend that psychologists make “plans for transfer of records to ensure continuity of treatment and appropriate access to records when the psychologist is no longer in direct control” (APA, 2007, p. 1002). For psychologists in agency, organizational, or group practice settings, a plan already may be in place when the psychologist arrives. For psychologists in independent practice, the most protective plan would be to create a professional will, designating a colleague to be in charge of records and their confidentiality in the event of a psychologist’s unexpected unavailability. Several samples of such professional wills are available. (See, for example, Holloway, 2003; McGee, 2003; Pope & Vasquez, 2005.) Koocher (2003) has further advised psychologists to make explicit arrangements in their personal will for the closing of their practice, including records administration.

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(APA, 2007, p. 1002). Paper records can be shredded, but disposal of electronic records can pose challenges, and simply erasing them is not sufficient. To make the records on a hard drive or data storage device inaccessible to someone with specialized expertise, the psychologist may need to “seek consultation from technical consultants regarding adequate methods for destruction of electronic records, such as physically destroying the entire medium or wiping clean (demagnetizing) the storage device” (APA, 2007, p. 2001). The HIPAA Security Rule requires that records be destroyed in a manner that prevents their being reconstructed. An entire industry has developed for providing “HIPAA-certified” or “HIPAA-compliant” crosscut shredding services for paper records. Electronically stored records must be cleared, purged, or destroyed such that it is impossible to retrieve the client information. HIPAA destruction guidelines are available from DHHS (2008). CONFIDENTIALITY AND RECORDKEEPING CONSIDERATIONS WITH CERTAIN CLIENT POPULATIONS The ethical and legal issues most likely to arise about confidentiality and record keeping can vary, depending on the client population.

Multiple-Client Cases and Collateral Participants When services are provided to multiple clients who are related to each other, protecting confidentiality rights becomes more difficult and record-keeping decisions become more complex than with individual clients (see Volume 2, Chapter 3, this handbook). The initial conversation is especially important. In addition to the general informed consent requirements in Standards 3.10, Informed Consent; 4.02, Discussing the Limits of Confidentiality; and 10.01, Informed Consent to Therapy, multiclient cases create further responsibilities. Standard 10.02, Therapy Involving Couples or Families, requires that prospective clients be informed, at the outset, about (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with

each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained. (APA, 2010b, p. 13) In family therapy, parents and children do not necessarily have the same confidentiality rights, so the therapist must inform each party about exactly what rules will apply to them, including discussion of “the role of secrets” and the “rules for confidentiality with minors” (Knapp & Vandecreek, 2006, p. 105). Some of the issues that couples and family therapists need to consider are how to handle family secrets, information given by one member of the family who does not want to share it with others, and information given by collaterals—individuals who participate in services provided to others, but who are not themselves receiving therapy, and who therefore do not have the same confidentiality rights as therapy clients. Rather than asking, “Who is the client?” and accepting its singular answer, the appropriate ethical question in a multiple-client case instead would be, “What are my ethical responsibilities to each of the parties in this case?” (M. A. Fisher, 2009c, p. 5). For informing collateral participants about their role and their rights, the APA Insurance Trust (2006) has provided a sample consent form for collaterals. Finally, couples and family therapists need to consider unique record-keeping issues in multiple-client cases (see APA, 2007).

Minor Clients The practical ethics of confidentiality with minor clients has been complicated by laws that affect minors’ legal rights about confidentiality and disclosure, and consequently the informed consent conversations with parents and children have become especially important (also see Volume 2, Chapter 1, this handbook). This is particularly true for families in which parents are divorcing and have not yet agreed on appropriate parenting plans. In those cases, it can be important to clarify in advance that the purpose of child therapy is for treatment, not for generating information that will be used in custody proceedings.

Older Adult Clients When working with older persons, the ethical issues related to confidentiality can become complex (also 363

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see Volume 2, Chapter 2, this handbook). These can include lack of privacy in meetings with the client, confusion about when to share information with family and other caregivers, and difficulty determining whether the client is capable of giving truly informed consent for evaluation, treatment, or release of information. Privacy issues can be especially difficult in hospital, nursing home, or other group living situations, or in situations in which it is clinically indicated to involve family members or caretakers in the evaluation or treatment of an older client. The confidentiality rules must be clarified with all parties involved, so that the collateral participants understand in advance exactly when, how, and with whom information will be shared (APA Insurance Trust, 2006; M. A. Fisher, 2009b; Zarit & Zarit, 1996). Finally, states have reporting laws that protect older adults from abuse and neglect, and the psychologist must explain this to all parties in advance. Bergeron and Grey (2003) discuss the ethical dilemmas about confidentiality and abuse reporting faced by those who offer support groups for family caregivers.

Groups Most of the ethical standards in Table 13.2 would apply in group contexts, although only Standard 10.03 explicitly mentions group therapy (also see Volume 2, Chapter 3, this handbook). That one-sentence standard focuses on the initial informed consent conversation: “When psychologists provide services to several persons in a group setting, they describe at the outset the roles and responsibilities of all parties and the limits of confidentiality” (APA 2010b, p. 14). This means that the initial conversation includes discussion of both (a) the psychologist’s professional duty to maintain confidentiality and (b) the group members’ responsibilities to protect each other’s confidences. Psychologists who provide group therapy also need to consider the manner in which group members respect the confidentiality of other members, unique privileged communication issues that occur during group therapy, and decisions concerning the appropriate way to keep records.

Cultural Minorities According to Pipes, Blevins, and Kluck (2008), “culture plays a role in how we understand the construct of 364

confidentiality and how we carry out our commitments” (p. 623). Cultural awareness and sensitivity can be important for clarifying client expectations about confidentiality and for protecting the voluntariness of client decision making, especially when obtaining consent for disclosure to family members in cultures that frown on keeping secrets. Clients for whom English is not the preferred language can be referred to native speakers whenever possible; otherwise, psychologists can use interpreters to ensure that clients understand the confidentiality policies. If possible, interpreters should be trained about confidentiality issues in mental health care. Unless unavoidable, interpreters should not be family members or authority figures in the community to prevent client intimidation or undue invasion of privacy (APA, Division 45, 2002). (More information on competence with diverse populations can be found in Chapter 8 of this volume.)

End-of-Life and After-Death Situations There continues to be confusion about confidentiality when clients are considering their options at the end of life and after a client has died (Werth, Burke, & Bardash, 2002). The APA Ethics Code does not explicitly address either circumstance, unlike the ethics codes of other mental health professions (e.g., American Counseling Association, 2005; American Psychiatric Association, 2009; National Association of Social Workers, 2008). End of life. The Ethics Code (APA, 2010b) allows (but does not require) psychologists to disclose confidential information “to protect the client/patient, psychologist, or others from harm” where permitted by law (Standard 4.05, Disclosures, p. 7). It has been suggested that although some might argue otherwise, “a psychologist does not have an ethical obligation to break confidentiality if a client who is dying is considering taking action that may end his or her life” (Werth et al., 2002, p. 210) and is therefore “fairly free to explore a variety of end-of-life decisions with clients who are dying, without needing to assume that there is a duty to protect in the traditional sense” (Werth & Richmond, 2009, p. 202). In support of their position, these authors cite the APA Working Group on Assisted Suicide and End-of-Life Decisions (2000). Psychologists can indicate their policy about

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this in their initial informed consent document, perhaps stating that they “can” or “may” or “reserve the right to” disclose in this circumstance, rather than will disclose. (More information on life-endangering patients can be found in Chapter 14 of this volume.) After death. Do confidentiality rights survive a client’s death? It can be important to decide in advance how to answer this question, in order to be prepared when responding to a request for confidential information or records about a deceased client. Although the Ethics Code (APA, 2010b) does not directly answer the question, it does allow (but does not require) disclosure in the following circumstances: “Psychologists may disclose confidential information with the appropriate consent of … the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law” (p. 7). This seems to permit disclosures about a deceased client (a) if the client, while living, gave consent for postmortem disclosure, or (b) if consent is obtained from an executor or other legal representative after a client’s death. Ethically, when it comes to voluntary disclosures about deceased patients, the answer seems to be that psychologists are free to make such decisions for themselves. Legally, the confidentiality rights of deceased clients vary from state to state, so psychologists must determine how their own state’s laws will treat this circumstance. Vasquez (1994) noted that even if such disclosure is ethically and legally allowed, psychologists should not disclose unless it seems in the best interest of the client to do so. Morally, it may be important to remember that a clinical record may contain sensitive information, not only about the deceased client, but about others (Robinson & O’Neill, 2007), and to weigh whether disclosure is in the best interest of the public trust or will affect the reputation of the profession (Burke, 1995; Werth et al., 2002). CONFIDENTIALITY AND RECORDKEEPING CONSIDERATIONS IN SPECIFIC SETTINGS The setting in which a psychologist works can impose certain limits on confidentiality and can influence decisions about record keeping.

Medical Settings As discussed in Volume 2, Chapter 5, this handbook, hospitals and other medical settings offer less privacy than other settings, and their multidisciplinary records are unlikely to enjoy the same level of confidentiality generally afforded psychological records. According to the APA (2007), “often, multiple service providers access and contribute to the record. This potentially affects the degree to which the psychologist may exercise control of the record, its content, or its confidentiality” (p. 1000). This situation makes it important for the psychologist to record only necessary information and to inform clients of how records are kept and who has access to them. Psychologists in private practice who consult in hospital and institutional settings may also encounter special issues about forms and records. For example, in addition to forms required in the institutional setting, they also may need to have patients sign certain forms required by their own practice, to have documentation in their own files. Care should be taken in transporting information between the medical setting and the private office (Benefield, Ashkenazi, & Rozensky, 2006). (More information on clinical health psychology can be found in Volume 2, Chapter 5, this handbook.)

Educational Settings Confidentiality issues in schools is discussed in Volume 2, Chapter 7, this handbook. There may be no setting in which the informed consent interview is more important. This is true whether the educational setting is public or private, elementary, secondary, undergraduate, or graduate. Relationship confusions abound and multiple relationships may be unavoidable. Psychologists must be clear about exactly which professional hat(s) they are wearing from one moment to the next and about where their loyalties lie (Behnke, 2008a, 2008b; Sharkin, 1995).

Academic and Training Settings Standard 4.07, Use of Confidential Information for Didactic or Other Purposes, prohibits psychologists from using client information in writings, classrooms, or public settings “unless (1) they take reasonable steps to disguise the person or organization, (2) the person or organization has consented in 365

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writing, or (3) there is legal authorization for doing so (APA, 2010b, p. 8). Public use of client information without consent may not only create potential harm to the client through a violation of confidentiality, but also may harm the profession by demonstrating a lack of trustworthiness that could deter others from seeking needed services. Koocher and Keith-Spiegel (2008) suggest that psychologists obtain “the full informed consent of the client” before using sensitive or confidential information for teaching purposes, especially if the nature of the material might make it possible for others to identify the client, even if not named (p. 215). (More information on creating ethical academic climates can be found in Volume 2, Chapter 12, this handbook.)

Research Settings The confidentiality standards in Section 4 of the Ethics Code (see Table 13.2) apply to all psychologists, regardless of role or setting, so “unless otherwise specified and agreed to by the research participants, data collected on human participants should be treated as confidential” (Koocher & Keith-Spiegel, 2008, p. 542). Standard 8.02, Informed Consent to Research, further requires that potential research subjects be informed in advance about the limits of confidentiality or other reasonably foreseeable factors that might influence their willingness to participate. This would include legally imposed limits of confidentiality, such as abuse reporting requirements. Obtaining a federal confidentiality certificate can provide some protection for researchers and participants, but the extent of its protection is disputed (Haggerty & Hawkins, 2000; Melton, 1990; Traynor, 1997). (More information on research ethics can be found in Volume 2, Chapter 16, this handbook.)

Forensic Settings Depending on psychologists’ roles, their ethical responsibilities about confidentiality in legal settings will vary (see M. A. Fisher, 2010). For those who are formally trained for forensic roles, this handbook contains a chapter on forensic psychology (see Volume 2, Chapter 6). This section instead describes ethical responsibilities for those in other roles (e.g., therapists) who lack such specialized training and often prefer not to participate in legal proceedings. 366

The Ethics Code mentions forensic settings in several standards, including Standard 2.01(f), Boundaries of Competence: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles” (p. 5). In other words, psychologists who assume forensic roles are expected to be prepared. It is not always possible, however, to avoid wearing a forensic hat. For example, the results of an evaluation previously conducted for another purpose could become evidence later in a court case, landing the unprepared psychologist on the witness stand. Similarly, although a therapist can avoid testifying voluntarily about a client if not fully prepared to be a courtroom witness, a court order may legally require providing records or testifying involuntarily. In such circumstances, it can be helpful to obtain consultation from a colleague who has served in that role and perhaps to engage in roleplaying before stepping into the minefield of courtroom cross-examination, where it is easy for the unprepared psychologist to disclose more than is necessary or appropriate. (More information on assessment and testing can be found in Volume 2, Chapter 4, this handbook; more information on forensics can be found in Volume 2 Chapter 6, this handbook.) The confidentiality duties and privilege protections for therapists and forensic evaluators are different (M. A. Fisher, 2010; Strasburger et al., 1997), so combining the two roles can create serious ethical complications. This is why the proposed Specialty Guidelines for Forensic Psychology contain a recommendation that this be avoided: “When requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners disclose the potential risk and make reasonable efforts to refer the request to another qualified provider” (APA & American Board of Forensic Psychology, 2011, p. 8). (Also see Role Confusion or Role Multiplication under Step 5: Avoid the Avoidable Disclosures.)

Rural Settings Much has been written about the joys and complications of serving as a psychologist in rural settings and small communities, where dual relationships

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are almost inevitable (Behnke, 2008c; Campbell & Gordon, 2003; Catalano, 1997; Schank & Skovholt, 1997, 2005). Multiple relationships invariably increase the likelihood that confidentiality will be violated. Psychologists living in small communities also experience “chance encounters of the awkward kind” at almost every turn, making it important for them to be prepared for interacting with clients in many and unexpected settings outside the professional context. Continual self-monitoring may be necessary to minimize unintentional disclosures of client relationships or of clients’ confidences. According to Campbell and Gordon (2003), “mastering the skill of communicating in social situations with appropriate professional vagueness is helpful” (p. 434).

Military and Intelligence Settings The stress of recent wars has added to the demand for more military psychologists (Munsey, 2008, 2009). For psychologists in this role, informed consent about confidentiality becomes especially important, including discussion of exactly who might obtain access to the client’s electronic records, as well as the possible implications of that access. This discussion is ethically important, even though it may deter full disclosure, because it protects the client’s right to choose what to disclose. For psychologists in intelligence roles, the informed consent process can be complicated by the fact that is not always possible to reveal to prospective clients the probable uses of the information obtained from them. Interestingly, APA Standard 3.11, Psychological Services Delivered To or Through Organizations, seems to anticipate this problem: “If psychologists will be precluded by law or by organizational roles from providing such information to particular individuals or groups, they so inform those individuals or groups at the outset of the service” (APA, 2010b, p. 7). In other words, before beginning an assessment or therapy relationship, psychologists need to inform the prospective client if they are constrained from explaining exactly how the information a client shares might later be used. (More information on ethical conflicts in institutional settings can be found in Volume 1, Chapter 5 of this volume.)

Industrial–Organizational (I/O) Settings: Business and Industry Psychologists in organizational settings often interact with several levels of personnel, not all of whom will have the same confidentiality protections. Whether employed by an organization or providing consultation services independently, psychologists may develop relationships or interact with several individuals who have relationships with each other, often hierarchical relationships. It is ethically problematic for psychologists in such settings to rely on the singular answer to the question, “Who is the client?” (M. A. Fisher, 2009c), because as described, Standard 3.11 requires that the psychologist providing services to or through organizations instead think in the plural and clarify the confidentiality rules and the nature of the relationship with each party involved. More information on ethical conflicts in I/O settings can be found in Volume 2, Chapter 8, this handbook.

Independent Clinical Practice Psychologists employed by agencies, institutions, or other organizations face the ethical problem of dealing with existing confidentiality policies, some of which might conflict with ethical practices or with their personal values. Psychologists in independent practice have the opposite problem of being completely responsible for developing, on their own, clear confidentiality policies that are both consistent with their ethics code and responsive to relevant laws. This requires learning a great deal of ethical and legal information; weighing competing interests, engaging in personal soul searching, integrating this into a clear set of policies, and preparing to explain it to clients in a simple and un-defensive manner (Knapp et al., 2007). As suggested in Step 1: Prepare, of the ethical practice model, this can be difficult to do alone. Seeking peer consultation or creating consultation groups for resource sharing can be important for decreasing the isolation often experienced by psychologists in independent practice. Pope and Vasquez (2005) explained, “Creating ways to stay in connection with others seems to be one of the most basic, important, and helpful self-care strategies for 367

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many psychologists” (p. 16). Collaborations about forms and policies can be opportunities for that connection.

Home Offices For psychologists who work at home, confidentiality pitfalls abound, especially if they see clients in their home and poor boundaries exist between the family living space and the professional space (Morgan & Polowy, 2009; Pepper, 2003). Home-based psychologists are responsible for avoiding such problems as unsecured documents; shared answering machines, fax machines, and computers; and e-mail accounts to which others have access (Woody, 1999).

Consultation and Supervision Roles The terms consultation and supervision sometimes are used interchangeably. However, their differences are more important than their similarities, and this is especially true when it comes to confidentiality rules. Supervision ordinarily refers to a relationship in which an accomplished professional monitors and supervises the work of a less qualified professional (e.g., student, resident trainee, unlicensed professional) who otherwise would not be allowed to provide the services that are being supervised. The supervisee is expected to follow the recommendations of the supervisor, who is both ethically and legally responsible for the work. The supervisor must be given all identifiable client information that would allow contact with the client if needed, and the supervisee must inform the client about the supervision and the resulting limits of confidentiality. Supervisors ordinarily are expected to document the supervision (Falvey & Cohen, 2003). In contrast, the term consultation refers to a relationship in which someone qualified to practice on their own seeks input from another professional. The consultee is free to follow or ignore the recommendations of the consultant and should avoid giving reasonably identifiable client information to the consultant without specific client consent, since its confidentiality may not always be legally protected. (More information about supervision can be found in Volume 2, Chapter 13, this handbook.) 368

ETHICS-BASED STAFF TRAINING ABOUT CONFIDENTIALITY AND RECORDS Client confidentiality is well protected only if everyone in the setting understands its importance and respects clients’ rights as described by the profession. In addition to the legal-based training required in HIPAA-compliant settings, ethics-based training can be provided for clinical and nonclinical staff, as well as students, interns, and volunteers.

Ethical Standards and Professional Recommendations APA Standard 2.05, Delegation of Work to Others, requires that psychologists who delegate tasks to others must “take reasonable steps to … see that such persons perform these services competently” (APA 2010b, p. 5). For staff members who interact with clients, or who have access to confidential client information, technical competence may not be sufficient; for the protection of clients and their rights, ethical competence is also important (Bennett et al., 2006; M. A. Fisher, 2009b; Koocher & Keith-Spiegel, 2008). For example, a person hired for data entry must not only be skillful at that task, but must also be competent at maintaining the confidentiality of the client data. Training toward that end is consistent with the aspirational goal of encouraging “ethical behavior by students, supervisees, employees, and colleagues” (APA, 2010b, p. 3). The APA Record Keeping Guidelines (APA, 2007) emphasize the importance of educating staff about confidentiality requirements and protection of records. Training should be provided to all staff, clinical and nonclinical, whether or not they were previously trained elsewhere. Disclosures acceptable in a previous setting may be inappropriate in the current one because state legal requirements vary, as do voluntary policies across settings within each state. Legal-based confidentiality training (e.g., HIPAA training) also may be needed, but it never should be considered a substitute for ethics-based training about confidentiality (M. A. Fisher, 2009b). Both the APA Practice Organization, Office of Legal and Regulatory Affairs (2006) and the APA Insurance Trust (Bennett et al., 2006) recommend requiring both clinical and nonclinical staff to sign a

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confidentiality contract as a condition of employment; and this can be combined with a broader ethics contract. (See samples at M. A. Fisher, 2007.) The APA Insurance Trust further recommends that all personnel be required to follow the Ethics Code, with failure to do so being grounds for termination (Bennett et al., 2006). If this will be required, it should be stipulated in the employment contract.

Legal Requirements About Staff Training Some states have laws or licensing regulations that specify training requirements for staff members who assist psychologists in certain tasks. Some state laws also make it illegal for staff to remove health care records or other client data without the express consent of the owner. Any such legal mandates can be integrated into the following ethics-based staff training. At the federal level, the HIPAA Privacy Rule explicitly requires staff training of all members of the workforce. Training in the use of passwords, encryption, and other technology safeguards should be provided to all staff within a reasonable time after they join the workforce; it must apply to the person’s specific job responsibilities and be tailored to the confidentiality policies in the setting (HIPAA, 1996, 45 C.F.R. § 164.530(b) (1)). The Privacy Rule also imposes a “minimum necessary” rule about disclosure of information (HIPAA, 1996, 45 C.F.R. § 164 514.(d)(1)), which seems to require that staff be given access only to the client information reasonably necessary for fulfilling their specific duties (Knapp & VandeCreek, 2006). The HIPAA Security Rule also has training implications. Providers must create contingency planning standards, train staff about their responsibilities in disaster situations, and document that the required training was provided (HIPAA, 1996, 45 C.F.R. § 164.308). Knapp (2005) has provided a sample HIPAA test that allows staff to demonstrate their understanding following the training. HIPAA also requires that sanctions be imposed on any member of the workforce who fails to comply with policies and procedures related to privacy (§ 164.308(a)(1) (ii)(C)) or to security (§ 164.530(e)(1)). A partial list of resources to assist in confidentiality training and HIPAA compliance is available online from the Center for Ethical Practice (2011).

Integrating Ethical and Legal Training Providing confidentiality training for both clinical and nonclinical staff conveys the message that everyone in the setting shares responsibility for protecting clients’ rights and must collaborate in creating a “culture of safety” (Knapp & VandeCreek, 2006, p. 115). The topic of confidentiality can be integrated within a broader ethics-based training program, rather than presented as a stand-alone, legal-based (or HIPAA-focused) training topic. Within the ethics training to be provided to all staff (M. A. Fisher, 2009b), the topic can be presented using the six-step model described in this chapter or any other outline of ethical duties about confidentiality and records. Legal information (both federal and state) can be placed into ethical context by incorporating it within an ethics-based outline, highlighting the ethical implications of both the legal protectors and the legal limiters of confidentiality. Presenting confidentiality training from an ethical perspective both protects clients and has advantages for staff and psychologists. Staff learns to recognize the psychologist’s ethical responsibilities about confidentiality and to notice when ethical and legal demands differ. They will learn to bring questions to the psychologist rather than responding to a legal demand without consultation, understanding that the psychologist must weigh the ethical implications of various legal options. For psychologists, planning the training can lead to development of policies and procedures that are more consistent with ethical responsibilities. Finally, an ethical training focus will not only protect current clients, but also will provide a strong working model that clinicians and clinical trainees can export to other settings in which they might later serve.

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Berson, J. (2005). Dual relationships for the psychologist when custody is an issue. Retrieved from http://www. apadiv31.org/Coop/DualRelationships.pdf

Behnke, S. (2007a, April). Ethics rounds: Disclosures of information: Thoughts on a process. Monitor on Psychology, 38(4), 62. Retrieved from http://www. apa.org/monitor/apr07/disclosures.html Behnke, S. (2007b, May). Ethics rounds: Gossiping about patients. Monitor on Psychology, 38(5), 70. Retrieved from http://www.apa.org/monitor/may07/gossiping. html Behnke, S. (2008a, May). Ethics rounds: Multiple relationships in campus counseling centers: A vignette. Monitor on Psychology, 39(5), 76. Retrieved from http://www.apa.org/monitor/2008/05/ethics.html Behnke, S. (2008b, June). Ethics rounds: The unique challenges of campus counseling. Monitor on Psychology, 39(6), 88. Retrieved from http://www. apa.org/monitor/2008/06/ethics.html Behnke, S. (2008c, December). Ethics rounds: Exploring ethics in rural settings: Through the lens of culture. Monitor on Psychology, 39(11), 44. Retrieved from http://www.apa.org/monitor/2008/12/ethics.html

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Pope, K. S., & Vasquez, M. J. T. (2005). Preparing a professional will. In K. S. Pope & M. J. T. Vasquez (Eds.), How to survive and thrive as a therapist: Information, ideas, and resources for psychologists in practice (pp. 57–63). Washington, DC: American Psychological Association. doi:10.1037/11088-008 Pope, K. S., & Vasquez, M. J. T. (2007). Ethics in psychotherapy and counseling: A practical guide (3rd ed.). San Francisco, CA: Jossey Bass. Pope, K. S., & Vetter, V. A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47, 397–411. doi:10.1037/0003-066X.47.3.397 Robinson, D. J., & O’Neill, D. (2007). Access to health care records after death: Balancing confidentiality with appropriate disclosure. JAMA, 297, 634–636. Retrieved from http://jama.ama-assn.org/cgi/content/ full/297/6/634. doi:10.1001/jama.297.6.634 Rosenbaum, A., & Dowd, L. S. (2009). Risk assessment and the duty to protect in cases involving intimate partner violence. In J. L. Werth, E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect: Ethical, legal and professional considerations for mental health professionals (pp. 195–208). Washington, DC: American Psychological Association. Sanbar, S. S. (2007). Medical records: Paper and electronic. In S. S. Sanbar (Ed.), Legal medicine (7th ed., pp. 347–356). Philadelphia, PA: Mosby. Schank, J. A., & Skovholt, T. M. (1997). Dualrelationship dilemmas of rural and small-community psychologists. Professional Psychology: Research and Practice, 28, 44–49. doi:10.1037/0735-7028.28.1.44 Schank, J. A., & Skovholt, T. M. (2005). Ethical practice in small communities: Challenges and rewards for psychologists. Washington, DC: American Psychological Association. Sharkin, B. S. (1995). Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries. Professional Psychology: Research and Practice, 26, 184–189. doi:10.1037/0735-7028. 26.2.184 Siegel, M. (1979). Privacy, ethics, and confidentiality. Professional Psychology, 10(2), 249–258. Smith, D. (1981). Unfinished business with informed consent procedures. American Psychologist, 36, 22–26. doi:10.1037/0003-066X.36.1.22 Strasburger, L. H., Gutheil, T. J., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. The American Journal of Psychiatry, 154, 448–456. Tarasoff v. Regents of the University of California et al., 334 P, 2nd 334 (Cal. S. Ct. 1976).

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CHAPTER 14

TREATING CLIENTS WHO THREATEN OTHERS OR THEMSELVES Elizabeth Reynolds Welfel, James L. Werth Jr., and G. Andrew H. Benjamin

Responding to a client who may harm himself or herself or someone else is one of the most difficult and stressful situations a psychologist may face (Brems & Johnson, 2009; Pope & Vasquez, 2005). According to the review of the research by Brems and Johnson (2009) virtually every practicing mental health professional will experience clients who express suicidal intent and 33% of practitioners will experience at least one client who completes a suicide. Experiences of clients who threaten others (or their psychologists) are not rare either. Pabian, Welfel, and Beebe (2009) reported that the mean number of potentially violent clients per therapist in their sample was 3.2 in the past 2 years. Arthur, Brende, and Quiroz (2003) found that 82% of mental health providers in Georgia experienced at least one client whom they feared would assault them and 18% who had suffered an actual assault. These percentages are virtually identical to those found by Pope and Tabachnick (1993) more than a decade earlier. Pope and Tabachnick (1993) reported that more than half of the psychologists they surveyed indicated that some potentially violent clients left them feeling so stressed that it affected their eating, sleeping, and concentration. Repeated exposure to clients who threaten harm can be associated with burnout and compromises in competent professional functioning (Brems & Johnson, 2009). Although we do not want to minimize the concern such a situation causes, we believe that some of the anxiety can be reduced if the psychologist is aware of the ethical and legal obligations and options in these difficult sessions. The primary purpose of this chapter, therefore, is to review the means by

which psychologists can meet their ethical and legal responsibilities while providing optimal services to clients, instead of becoming distracted by misunderstandings about the law and ethics codes regarding threatening clients. Other chapters in this handbook deal with issues related to dangerous patients: For example, safety issues are covered in Chapter 19 of this volume; issues related to child abuse are covered in Volume 2, Chapter 1; elder abuse is covered in Volume 2, Chapter 2; predictions of dangerousness for forensic examiners are covered in Volume 2, Chapter 6; and duties of researchers when they encounter dangerous research participants are covered in Volume 2, Chapter 16. In the sections that follow, we identify how psychologists can protect themselves against licensing board or ethics committee complaints and how they can defend themselves if a suit is brought against them (for more specifics on these matters see Chapter 18 of this volume). Although our specific focus is on situations in which a client threatens self or others—typically referred to as the duty to protect— the principles we discuss hold for other types of ethical and legal situations. We now turn to describing how the duty to protect became a cornerstone of the ethical and legal obligations psychologists have when working with clients. THE DUTY TO PROTECT: CLARIFYING TARASOFF Tarasoff v. Regents of the University of California (1974, 1976) is probably the most famous (or infamous) mental health case in the United States.

DOI: 10.1037/13271-014 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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It appears, however, as if many professionals misremember or are confused about Tarasoff and its implications for practice. We therefore clarify the facts asserted by the plaintiffs—quoting the more recently published court opinion (Tarasoff v. Regents, 1976)—review the crucial court holding, and discuss implications. We also address common misunderstandings.

The Situation According to Tarasoff v. Regents (1976), “during his ninth psychotherapy session Prosenjit Poddar informed Lawrence Moore, his psychologist, that he was going to kill an unnamed girl, readily identifiable as Tatiana Tarasoff, when she returned home from spending the summer in Brazil” (p. 341). Moore, after consulting with two colleagues, “decided that Poddar should be committed for observations in a mental hospital” (p. 341). Campus police officers took Poddar into custody, but, satisfied that Poddar was rational, released him on his promise to stay away from Tatiana. Harvey Powelson, M.D. the Director of Psychiatry and Moore’s supervisor … then asked the police to return Moore’s letter, directed that all copies of the letter and notes that Moore had taken as psychologist be destroyed, and “ordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.” (p. 341) Poddar apparently did not return to therapy. Instead, “Poddar persuaded Tatiana’s brother to share an apartment with him near Tatiana’s residence; shortly after her return from Brazil, Poddar went to her residence and killed her” (p. 341). California Supreme Court rulings. Overturning the lower courts, in 1974 the California Supreme Court ruled that psychologists had a duty to warn an identifiable victim. This case is referred to as Tarasoff I. After the court ruled in this case, professional associations filed briefs asking for a rehearing of the case. In an unusual move, the Supreme Court granted a rehearing. The Court issued its second opinion in 1976. This ruling, in Tarasoff II, rendered

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the result of Tarasoff I moot. In Tarasoff II, the Court released the police from liability and modified the duty of psychologists when a client is judged to be dangerous to third parties. Specifically, when a therapist determines, or pursuant to the standards of his [or her] profession should determine, that his [or her] patient presents a serious danger of violence to another, he [or she] incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending on the nature of the case. Thus it may call for him [or her] to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever steps are reasonably necessary under the circumstances. (Tarasoff v. Regents, 1976, p. 340) Later the Supreme Court indicated that while the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the psychologist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Tarasoff v. Regents, 1976, p. 345, footnote omitted) And, in terms of what steps may be reasonable, in a footnote, the Court asserted that “the giving of a warning, however, would in many cases represent a far lesser inroad upon the patient’s privacy than would involuntary commitment” (Tarasoff v. Regents, 1976, p. 345, footnote 14). Outcome of the case. Following the ruling in Tarasoff II (1976), the University of California, Berkeley; Moore; and Powelson at the health service settled the civil case for an undisclosed sum (reported to be about $50,000; Burris, 2001). Poddar was convicted of second-degree murder, but his conviction was overturned on appeal because of

Treating Clients Who Threaten Others or Themselves

faulty jury instructions. He was subsequently convicted of voluntary manslaughter and served 5 years. He then returned to India, his home country. Misunderstandings of Tarasoff. Strictly speaking, Tarasoff II (1976) applied only in California. Although other states may have Tarasoff-like cases or statutes developed in response to Tarasoff, the case itself was binding only in California and then only until modified by legislation passed in the state or subsequent court rulings in different cases. Tarasoff II (1976), which used the language “duty to use reasonable care to protect” (usually shortened to the “duty to protect”), is the final case and its result made the language of Tarasoff I (i.e., “duty to warn”) inapplicable. In other words, although some other states may have developed statutes or had cases that use the language “duty to warn,” this is not consistent with the final Tarasoff ruling. As highlighted, the Supreme Court did not specify what psychologists were required to do to meet the duty to protect. Breaking confidentiality and talking to the potential victim, others who could notify the victim, or the police (i.e., warning) were listed as possibilities, along with involuntary hospitalization, but the Court was careful to repeatedly state that the specifics of the case and the standards of the profession in these types of situations will determine appropriate options. Again, each state may be more specific in stating what obligations exist, so psychologists must be aware of the requirements in each jurisdiction where they practice. Tarasoff II applied only in cases involving harm to others. A separate California case (Bellah v. Greenson, 1978) followed similar reasoning and established that, in California, a psychologist had a duty to protect suicidal clients. However, again consistent with Tarasoff II, the court did not specify exactly what the psychologist had to do to meet the duty to protect.

Developments Since Tarasoff During the past 35 years, professional associations, state legislatures, and state and federal courts all have dealt with the question of the limits of confidentiality with dangerous clients. In this section, we review

some of the most important legal issues and highlight aspects of ethics codes that deserve attention. Legal considerations. The variations in interpretation of this legal issue are substantial, and most jurisdictions do not apply the Tarasoff standards. Currently, 23 states impose either a duty to protect or a duty to warn by statute, and nine states have a common law duty as a result of court cases (i.e., a duty derived from court holdings as opposed to obligations based on law created by a jurisdiction’s legislature through a statutory process or administrative rule or through the licensing board rule promulgation process). Thirteen other jurisdictions permit but do not mandate the breach of confidentiality to warn potential victims, and seven states have not ruled on the issue. Many jurisdictions’ courts have created duties on the basis of other jurisdictions’ common law and have applied the precedents to a similar case before the court. In Canada, six provinces have no statutory or common law duty related to the issue, and seven provinces allow but do not mandate disclosure of dangerousness to third parties (Benjamin, Kent, & Sirikantraporn, 2009). Moreover, no two states or provinces have created the same law (Benjamin et al., 2009). In the 23 states that impose a statutory duty to protect, a majority of these states do not specify warning as the only option to carry out the duty. Most allow hospitalization (voluntary or involuntary) and some allow intensification of outpatient treatment or other actions that appear appropriate to psychologists. Even when a duty to protect or warn is identified, laws vary substantially in defining when a duty is present and what a psychologist is obligated to do in that situation (Benjamin et al., 2009). Moreover, state laws and court rulings are dynamic and not static. Ohio, for example, had three different legal standards in the period between 1991 and 1999, and California recently modified its duty to protect statute to a duty to warn and protect. California’s duty is triggered by a family member who relays a concern about a client family member who may engage in violence (Ewing v. Goldstein, 2004). The direction of change is not predictable because some jurisdictions have narrowed the types of circumstances that provoke the duty, whereas others have widened them (Walcott, Cerundolo, & Beck, 2001).

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The changing face of these legal rulings is not the only challenge that psychologists face when clients threaten third parties. Every state has passed privileged communication and confidentiality rules in which client disclosures in psychotherapy cannot be revealed without client consent or legal authority (Caudill & Kaplan, 2005). Unauthorized disclosure leaves psychologists vulnerable to civil liability. Sometimes state laws are clear about whether a breach of confidentiality to implement a duty to protect a third party is protected from civil liability and sometimes the laws are silent. Specifically, 22 states and six provinces with duty to protect or duty to warn statutes include protection against liability claims, but this protection exists only when the breach meets the standard in the statute for triggering a duty (Benjamin et al., 2009). If psychologists breach confidentiality against client wishes and without sufficient legal justification, they are not protected under the immunity provisions of these statutes. In a recent survey of 300 psychologists in four states with varying legal requirements regarding breach of confidentiality with dangerous clients, Pabian et al. (2009) found that most psychologists (76.4%) were misinformed about their state laws. In states where no legal duty existed, many mistakenly believed that they were legally mandated to warn, and in states that had legal options other than warning the potential victim, most assumed that warning was their only legal option. In other words, if the majority of these psychologists had confronted the circumstances described in the research and breached confidentiality without client permission, they would have been at risk for a civil suit from their client for negligence. Additionally, they would have been at risk for a disciplinary action by an ethics committee or licensing board for failing to meet the ethical duties established by law. In addition to the inaccuracy of their knowledge, many respondents were confident that they understood the duty to protect in their own state. Nearly one third of the sample (30.6%) indicated that they were very current in their knowledge of this issue, and 58.9% reported that they were somewhat current in their knowledge (Pabian et al., 2009). 380

Ethics codes. Subsequent to Tarasoff, all professional associations modified their codes of ethics. The American Psychological Association’s (APA’s) first change appeared in its 1981 revision. That version read: Psychologists have a primary obligation to respect the confidentiality of information obtained from persons in the course of their work as psychologists. They reveal such information to others only with the consent of the person or the person’s legal representative except in those unusual circumstances in which no to do so would result in clear danger to the person or others. Where appropriate, psychologists inform their clients of the legal limits of confidentiality. (APA, 1981, pp. 635–636) The current revision of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) uses more general language to acknowledge the varying legal limits on confidentiality: Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. (p. 4) Standard, 3.04, Avoiding Harm Psychologists take reasonable steps to avoid harming their clients/patients … and to minimize harm where it is foreseeable and unavoidable. (p. 6) Standard 4.05, Disclosures (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client,

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the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law. (b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (p. 7) Typically, the duty to protect is associated with statutes and court cases, but the duty also has clear ethical dimensions, embedded in the responsibility of psychologists to promote the welfare of those they serve, respect their dignity, and work to help and avoid harm to their clients. The Introduction to the 2010 Ethics Code also includes statements relevant to confidentiality in the following aspirational sections: Principle A: Beneficence and Nonmaleficence Psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons, and the welfare of animal subjects of research. When conflicts occur among psychologists’ obligations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids or minimizes harm. Principle E: Respect for People’s Rights and Dignity Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and selfdetermination. Psychologists are aware that special safeguards may be necessary to

protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision making. A careful reading of these sections of the Ethics Code reveals that nothing in the current code (or any prior code) mandates psychologists to breach confidentiality if a client represents a serious threat of harm to a third party. The standards, in recognition of varying legal responsibilities, permit a breach when a client represents a valid concern about danger to self or other. The wording also acknowledges the ethical responsibility of the psychologist to protect people from serious danger and to protect clients from implementing an action that will be devastating to them as well. This permission means that psychologists are responsible for using their best judgment to interpret both the risk of violence in the situation and the proper application of the law to often complex and confusing facts. Unfortunately, both research findings (Givelber, Bowers, & Blitch, 1984; Pabian et al., 2009) and our experience in teaching and consulting suggest that at times psychologists do not fully appreciate the distinction between the legal duty to protect and the ethical obligations expressed in the Ethics Code. Even when disclosures are permitted and appropriate to prevent serious and foreseeable harm, the current Ethics Code (APA, 2010, Section 4.04, Minimizing Intrusions on Privacy) cautions psychologists to limit the extent of the disclosure to “information germane to the purpose for which the communication is made” (p. 7). ETHICAL DECISION MAKING IN POTENTIAL DUTY-TO-PROTECT SITUATIONS The following case example will be used to illustrate the application of Welfel’s (2010) ethical decisionmaking model. Case Example: Raymond Raymond is a 36-year-old client who has been in therapy for 13 months. His current diagnosis is bipolar disorder II, but during his long history of mental health care, he has had other diagnoses. 381

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Raymond has been stable and medication compliant for the past 8 months. Although he has a history of alcohol and marijuana use, he has been abstinent and in Alcoholics Anonymous (AA) for the past 2 years. Currently single, his history includes two marriages that ended in divorce, partly because of physical abuse. In one altercation with his last wife, Raymond broke her nose. Because she declined to press charges, no legal action followed. In his therapy session this week, Raymond announces that he is engaged to a woman he met 3 months ago at an AA meeting. She does not know of his history of physical abuse of his wives or the extent of his psychological problems, though obviously, she is familiar with his history of substance abuse. Raymond goes on to say that what attracted him to this woman is that she is assertive and unafraid to disagree with him. He has described his former wives as “too mousey and quiet” and mentions that he enjoys the way in which he and his fiancée can argue out in the open and get things resolved. When the psychologist inquires about whether his fiancée’s assertiveness may increase the risk that he will resort to old behaviors, Raymond suggests that as long as he stays sober and in therapy, he’ll be fine. The psychologist is worried about whether Raymond will be able to stay on course. Several weeks later, it becomes clear in session that Raymond is not taking his medication regularly and his behavior has become more unstable. He still talks lovingly about his fiancée and contends that they have had only one argument where he felt like he had to leave the room because he got so upset. He insists that he did not assault her or even threaten to do that. At the end of the session, Raymond agrees to take his medications again and to attend therapy 382

more frequently. However, he does not honor this promise and during the next few weeks he acknowledges that he and his fiancée have been arguing more frequently. It also becomes clear that Raymond has not disclosed to her his history of physical abuse with his former wives. The psychologist is wondering whether she has a duty to protect the fiancée by disclosing Raymond’s history because he has refused to have her join them in a therapy session and refused to allow the psychologist to have contact with her.

Welfel’s Model of Ethical Decision Making This case example illustrates the kind of situation for which a structure for organizing one’s thinking is especially valuable because of the legal, ethical, and clinical considerations inherent in the case as well as a considerable amount of stress for the psychologist given what is at stake for the client and the fiancée. In addition to as well as Welfel’s (2010) 10-step model, which is described in this section, several helpful models for ethical decision making have been presented in the literature (Kitchener, 2000; Knapp & VandeCreek, 2006; Koocher & KeithSpiegel, 2008). When a client represents a highly imminent risk to self or others, a psychologist must make an immediate decision to act and has little freedom to engage a multistep process of ethical decision making, especially if this process will take a long period of time or force the psychologist to leave the client alone. However, if the professional has consistently implemented a systematic approach to ethical decision making in less imminent circumstances, he or she can arrive at a responsible decision when pressured to act. We firmly believe that regular use of any decision-making system is likely to result in better ethical decisions when immediate action is needed. On a related note, all the steps in this or any other decision-making model need not be implemented in this precise order. For example, peer consultation or examining the local law may come earlier in the process. (More information about ethical decision making can be found in Chapter 4 of this volume.)

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Step 1: Develop ethical sensitivity. The first step in the Welfel (2010) model is the most obvious and in many circumstances the most frequently missed: It is the recognition that the situation includes an ethical dimension in which standards and values of the profession ought to influence the psychologist’s actions. Rest (1984) referred to this awareness as ethical sensitivity. Psychologists may face complex and confusing scenarios in which both ethical issues and legal issues are present. In situations like Raymond’s, psychologists typically recognize that their obligations to the client may conflict with their obligations to third parties, but they may frame this problem exclusively as a legal concern or as a risk management issue. However, this situation clearly has clinical, ethical, and legal dimensions. Seeing the clinical and ethical dimensions, the responsibility to protect Raymond from an impulsive act of abuse along and to protect his fiancée from the consequences of such an act, is the first step in making a wise choice in this situation. A related aspect is sensitivity to the legal aspects of the case (see Step 4). Preparation to practice in any jurisdiction requires understanding the laws that often will delineate how to meet ethical responsibilities; however, one must not be so focused on legal issues that other important steps are glossed over. Briefly, North American jurisdictions have wide-ranging responses to the duty to protect and the laws of each jurisdiction that should be checked carefully to see whether they narrow the ethical responsibilities of the psychologist. A start would be a review of the summary of the laws about your jurisdiction (see Benjamin et al., 2009) and then checking with your licensing board to see whether the particular law has been changed within your jurisdiction. The Association of State and Provincial Psychology Boards (n.d.) offers links and addresses for all licensing boards in the U.S. and Canada. These matters are discussed in more detail in Step 4. Step 2: Clarify facts, stakeholders, and sociocultural context of the case. Once the situation is framed as an ethical issue, the second step in decision making is to clarify the facts of the situation that would affect the clinical context, such as the stakeholders involved, and the sociocultural context

in which the situation is embedded. Facts to consider in Raymond’s case include (but are not limited to) the following: ■

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The strength and history of the therapeutic alliance. A strong alliance increases the likelihood that the psychologist will have the opportunity to use the therapeutic relationship to influence Raymond’s propensity to violence and his willingness to engage in a conversation with his fiancée about his history. The adequacy of the informed consent process to date in the therapeutic relationship and Raymond’s comprehension of the limits of confidentiality if his actions and disclosures in therapy meet the standard for triggering a duty to protect. The specific nature of the prior history of threats to self or others in the course of the current or past therapies and Raymond’s response to prior efforts to deescalate violence. The extent of his current use of substances, his fiancée’s use, the specific factors that trigger their arguments, and the coping strategies Raymond is disposed to use to manage his anger when relationship conflicts emerge.

Clarifying these facts about the effects of possible precipitating factors can help the psychologist to identify how to increase the power of inhibiting factors variables. This approach can decrease the psychologist’s anxiety, a response that leads many to seek a quick solution and gloss over important case details. Although, in this case, the stakeholders are easy to identify—the client, the fiancée, and any dependents of the fiancée (her dependents could be at substantial risk if she is harmed)—other aspects will require deeper scrutiny. For example, the assessment of the facts also must incorporate an understanding about the sociocultural context. The cultural identities of all parties and the possible influence that the context has on the ways in which the client, the fiancée, and the psychologist define appropriate male–female adult relationships may significantly influence the ethics of the response. Obviously, no cultural context makes partner violence acceptable, but when attempting to assess and reduce a threat, it is crucial that psychologists take into account the cultural norms of his or her client. 383

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Step 3: Define the central ethical issues and the available options. The third step in this model is to identify the ethical issues and options—determining what makes the situation an ethical issue. For the case of Raymond, the ethical issue is a rather obvious question regarding the limits of confidentiality with a client who is potentially violent. A broader ethical issue may be placing the client’s and fiancée’s best interests ahead of the psychologist’s worries about litigation or other repercussions. At this step, once these issues have been clarified, the psychologist brainstorms possible ethical options, or at least more fully identifies areas of uncertainty. Engaging in this brainstorming process has two purposes: First, it broadens the professional’s thinking beyond the question of disclosure to the fiancée to other possible options. Second, this step also helps the psychologist articulate her intuitively preferred options so that those options can then be compared with professional standards. In this case, this step may allow the psychologist to add such possibilities as intensifying treatment, encouraging hospitalization, or involving other support personnel instead of the fiancée in Raymond’s treatment. Step 4: Refer to professional standards and relevant laws or regulations. The next step includes referring to Ethics Code and legal standards. APA Standards 3.04, Avoiding Harm, and 4.05b, Disclosures, are most relevant. Because a breach of confidentiality without client consent may result in legal action against the psychologist, may cause the fiancée to end the relationship, or may provoke the very violence it is aimed to prevent, the psychologist must carefully weigh the risks of this option against its potential benefits. Section 4.05 cautions the psychologist against disclosure without a client’s consent except in limited circumstances. One of those circumstances is to protect the client, the psychologist, and others from harm as permitted by law. This provision also directs the psychologist to consult her state law. Depending on her location, the psychologist’s state may grant her permission to break confidentiality when clients are dangerous, may define dangerousness clearly or be mute on the definition, may specify a duty to protect or a duty to warn, or may 384

be entirely silent on her legal requirements in Raymond’s case (Benjamin et al., 2009). Ohio law, for example, specifies the circumstances that trigger the duty and the options the psychologist has to carry out that duty (Ohio Revised Code, 2003). Examples of other state laws demonstrate how important it is for a psychologist to check on their current legal duty within the jurisdiction. Maine law is entirely silent on the topic—no statute or case law on the issue—and psychologist–client privilege does not make an exception for client threats (Maine Rules of Evidence, 2010). On the other hand, New York law (New York Mental Hygiene Law, 2001) grants permission to disclose when clients represent a “serious and imminent threat” but does not mandate a duty to disclose. In short, the degree of assistance the law gives the psychologist varies considerably. Even in jurisdictions with duty-to-protect statutes, the law typically is not so specific as to fully resolve the ethical question. For example, if this psychologist practiced in New York, she would now be obliged to determine whether Raymond’s current state and past history constitute a “serious and imminent” threat. For an Ohio-based psychologist, the resolution to the dilemma is largely present in the language of the law and the rest of the steps can be abbreviated. If she practiced in Maine, she would have virtually no legal guidance and would need to move to the next steps in Welfel’s (2010) ethical decision-making model to clarify the best ethical solution Step 5: Search out ethics scholarship. Consulting the abundant literature on ethical and legal considerations with potentially violent clients, on assessment of the risk of violence, and on interpretations of the law in the psychologist’s state can lead her to better prepare the next set of interactions with Raymond. In the past 30 years, the literature on ethical and legal issues in practice has grown exponentially, and the wisdom of ethics and legal scholars is readily available to any person with Internet access. This literature not only helps define terms and explain ethical standards, but also offers practical approaches to risk assessment and treatment of clients like Raymond. (See this chapter’s reference list for a selection of resources that would be especially helpful in this situation.)

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Step 6: Apply ethical principles to the situation. For particularly complicated situations, a psychologist may need to supplement the information already gathered with an application of the five ethical principles at the core of all ethical standards in health care professions (Beauchamp & Childress, 2009; Kitchener, 1984). Additionally, the psychologist may need to consider how the virtues at the foundation of our professional values affect the ethical choices (Fowers, 2005). This consideration is the crux of Step 6 of the model. These principles include respect for autonomy, beneficence (the obligation to do good), nonmaleficence (the obligation to avoid harm), fidelity to commitments, and justice (the responsibility to be fair and nondiscriminatory). Relevant virtues include integrity, honesty, wisdom, and the like. Such considerations help the professional place the particular dilemma in the context of the broader discipline of ethics and remain focused on the welfare of the client rather than selfprotection from litigation or disciplinary action. Step 7: Consult with supervisor and respected colleagues. Even if a psychologist is fairly clear regarding the ethical obligations after reviewing ethical standards and legal considerations (and can skip Steps 9 and 10), a consultation with a knowledgeable colleague is recommended for all serious ethical questions (Benjamin, Rosenwald, Overcast, & Feldman, 1995). The psychologist would convey to the consultant the salient facts about the case to corroborate whether sufficient assessment has occurred and whether the planned interventions are adequate. Once the peer consultation is obtained, the psychologist in Raymond’s case could send a contemporaneous written communication to the peer that memorializes the facts relied on by the peer, the opinions provided by the peer about the process, and the agreed approach that emerged at the time of the consultation (Benjamin et al., 2009). The peer consultation shows a transparent decision-making process that has taken into account the facts at hand while attempting to meet the standard of care. Such an action may decrease the risk of an ethics complaint or lawsuit, and if the complaint is filed or the psychologist is sued, would bolster the psychologist’s contention that

she acted reasonably at the time within the standard of care of the community of her peers. A consultation also ensures that all relevant facts of the case have been explored and helps to eliminate any blind spots the psychologist may be experiencing because of the stress of the situation. Clearly, the psychologist working with Raymond would have a great deal of worry about the deterioration in his psychological state and his risk of harming his fiancée. She also may be aware that this is the kind of situation in which others may question the ethics of whatever decision she makes about the next steps in treating Raymond. Of course, if the psychologist is under clinical supervision, the supervisor ought to be consulted no later than this step in the decision-making process. Step 8: Deliberate and decide. The psychologist is now at the point of final deliberations and decision making about how to intervene in a way that complies with ethical and legal standards. Scott and Resnick (2006) recommended identifying the likely impact of each known variable and the management or treatment strategy to implement the violence prevention plan. On the basis of the corroboration of findings from the risk assessment, the psychologist can explore a range of violence prevention interventions with the client as part of the assessment process. For example, if Raymond admits to owning guns, he can ask an uninvolved family member to hold the guns and ammunition during the course of the treatment. This type of intervention is founded on the psychologist’s conclusions about how the precipitating and inhibiting factors are interacting. Each significant precipitating variable is linked to a specific intervention. Ongoing assessment also will allow the psychologist and client to refocus on how to ameliorate variables that may trigger future violence. On the one hand, if progress has not occurred in reducing the impact of a particular precipitating variable, a midcourse correction to the original plan should occur to engage in more efficacious treatment. For instance, if Raymond fails to remove the guns as agreed on, the psychologist and Raymond can arrive at another approach to accomplish the task. Perhaps an effective midcourse intervention would be to call the client’s 385

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favorite relative during the session (with the client’s permission) and ask that relative to visit the client to pick up the guns. On the other hand, if a particular inhibiting variable seems to be working well, the psychologist can focus on increasing its impact. For example, if the client reports that a definite reduction in anger and tension follows each psychotherapy session, then increasing the number of psychotherapeutic sessions per week would be a reasonable next step. In cases in which the therapeutic alliance is waning and the precipitating variables appear to be escalating, more intrusive interventions must occur. A useful approach in this context is for the psychologist to suggest that an objective evaluation occur. In many jurisdictions, such an evaluation through the involuntary treatment process can be conducted within the psychologist’s office. In other jurisdictions, a police officer can take both the psychologist and the client to a facility where such evaluations are conducted. In both instances, no abandonment of the client occurs, and a new management and treatment plan can be developed. Such a formal approach can lead to involuntary outpatient treatment with allied intensive case management being ordered. For other cases, a period of voluntary admission to the hospital or even involuntary inpatient treatment might be ordered. In both types of interventions, a treatment team and the client will address whether continued treatment of the client by the psychologist should occur subsequent to the hospitalization or commitment. Many jurisdictions provide a qualified immunity to a psychologist for obtaining an involuntary treatment assessment of a client who is mentally ill and a danger to self or others (Benjamin et al., 2009). The use of such an evaluation could insulate the psychologist from liability in many jurisdictions and reduce the legal risk to the psychologist. Some state laws regarding the duty to protect specify that the mental health professional use “the least restrictive option” in deciding how to protect the third party from harm. Clearly, involuntary hospitalization represents a more restrictive option and should be implemented in these jurisdictions when other options are not viable. Involuntary hospitalization also has a great risk of rupturing the therapeutic alliance and ending therapy; for this 386

reason, it should be used only when clearly warranted to implement the duty and to protect everyone involved. Step 9: Implement and document actions and decision-making process. The deliberations about a risk of violence require thorough documentation of the rationale and procedures of the evaluation and treatment of the client. The psychologist should include peer consultation notes in the client record. Such an approach strengthens the documentation about the evaluation and intervention. Psychologists ought to incorporate direct quotes from the client about the threat, note the results from the structured risk assessment, list the precipitating and inhibiting factors about the threatened violence, and include an analysis about how to manage each risk in light of those factors (Benjamin et al., 2009). All documentation should be done with the goal of transparency of ethical and legal decision making. In other words, both the advantages and disadvantages of an action should be documented along with the rationale for the choice of the implemented alternative. A second goal of documentation is thoroughness. For example, when a client makes a threat in an early session, the notes should reflect not only the actions taken to address the threat in that session but also the therapist’s follow-up of that threat in future sessions (even if the threat seems resolved after the initial discussion). Every subsequent action related to the management plan requires documentation. For example, documentation of the written releases to talk with collateral witnesses involved with the client (unless waiver has occurred because Raymond was present and participating on the collateral contact phone calls), and their views about the context, can bolster the reliability of the data. The psychologist would document the evidence establishing the diminution of the risk. If the management plan appears not to have reduced the risk of violence, further structured risk assessment and peer consultation should occur, and be documented. Documentation also should include the rationale for rejecting other possible options if those options were considered during the peer consultation (Werth, Welfel, & Benjamin, 2009).

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Step 10: Reflect on the experience; develop a plan for future ethical issues. Once the decisions are implemented, the psychologist should engage in a period of reflection about the whole process from the moment the ethical issue emerged through the implementation of the planned actions. Such reflection is aimed at helping to psychologist address future ethical questions more quickly, more knowledgeably, and, perhaps, with less stress. The following questions may facilitate the reflection process (Welfel, 2010): ■

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Did I attend to the ethical dimensions of the situation as soon as they arose? Did I know enough about the ethics codes and legal requirements to act responsibly? What literature do I need to keep in my personal library for easier access the next time it is needed? How effectively did I consult? What could I have improved? What else could I have done differently? How well did I identify the competing values and other pressures affecting my decision making? What else could I have done differently? What am I proud of doing? How has this situation changed me as a professional and a person? How can I use this experience to assist others in my work faced with similar ethical issues?

The Importance of the Therapeutic Alliance One of the most clinically significant facts to establish is whether a strong therapeutic alliance was sustained from the informed consent process up to the point in the clinical relationship at which concerns about a danger to another first emerge. One of the linchpins of successful evaluation and intervention in a duty-to-protect context is full disclosure with the client about the limitations for protecting confidences before any dangerous ideation has been expressed (Glosoff, Herlihy, Herlihy, & Spence, 1997). We can assume that the psychologist in Raymond’s case delineated for her client the laws related to mandatory reporting duties and the duty to protect. So Raymond is forewarned about issues that would require disclosure. If the psychologist must

act on the duty, such a forewarning of the client can avoid the client feeling surprised and betrayed. The psychologist’s early transparency with clients about these types of duties will encourage them to work within the confines of the law throughout the therapeutic process. The collaborative relationship between psychologist and Raymond begins with the informed consent process (Waitzkin, 1984). Clients who have difficulty forming a therapeutic alliance are more likely to object to the cited limitations about protecting confidences during either the written or oral informed consent process (Benjamin et al., 2009). If a healthy connection had not emerged between the psychologist and Raymond at this point in the relationship, and before any duty-to-protect context might arise, the psychologist could refer the client to two or three other colleagues, who may form a more effective, working clinical relationship with that particular client. However, the psychologist and Raymond did establish a strong therapeutic alliance. As a duty-to-protect situation emerges, such a client will be more likely to provide sufficient information to make better clinical decisions. For example, Raymond may disclose detailed information about sensitive precipitating factors that likely would increase the risk of his acting out, such as recent drug and alcohol intoxications, whether he is feeling guilty or self-righteous about the ideation to harm, and how his subculture members would act under similar circumstances. For such clients, follow-through with various interventions formed on the basis of the poorly developed assessment conclusion is likely to result in ill-informed interventions, a sense of abandonment or betrayal, poor clinical outcomes, and a greater likelihood of ethics complaints or malpractice actions. If Raymond fails to resume his medications and attend therapy more frequently, and he acknowledges that he and his fiancée have been arguing more frequently, the psychologist justifiably becomes more concerned. Although no actual threat of violence toward the fiancée has occurred, Raymond also has not disclosed to his fiancée his prior history of physical abuse with his former wives. With Raymond, the psychologist can engage in an assessment to determine whether the emergence of treatment 387

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setbacks is significant enough to warrant further intervention. It is quite likely that the strong therapeutic alliance and Raymond’s good work that has led to 2 years of sobriety will result in his participating in the assessment, and such an assessment can be framed as method to redouble his commitment to protect sobriety, increase the closeness and intimacy with his fiancée, and deepen his sense of self. Risk assessment. A general assessment approach that has gained validation in the literature is to identify the risk factors and to orchestrate interventions that reduce the effects of possible precipitating factors and increase the power of inhibiting factors (Bennett et al., 2006; Heilbrun, O’Neill, Strohman, Bowman, & Philipson, 2000). Researchers have concluded that the inexact science of predicting violence is best accomplished through consideration of the results of an actuarial risk assessment instrument combined with a detailed past history (Scott & Resnick, 2006, p. 608). Such structured risk assessments (Monahan, 2006) are designed to reduce clinical judgment errors and to increase the accuracy of violence assessments. Although no instrument can be used blindly or considered infallible, combined with a detailed past history, clinical judgment errors may be more likely to detect. On the other hand, false positives from an actuarial instrument may occur as a result of the client not being typical of the population used in the norm group. Clinical judgment about the details of precipitating factors and inhibiting factors can temper being misled by a lack of an instrument’s generalizability to the particular client. An accessible actuarial instrument to evaluate a threat of violence against another person is the iterative classification tree (ICT; Monahan et al., 2000, 2001). ICT is viewed as the “instrument of choice for nonforensic” (i.e., noncriminal) clients (Harris, Rice, & Camilleri, 2004, p. 1071). Software, such as the Classification of Violence Risk (COVR™), also is available for processing a 10-minute structured interview and synthesizing the data from a chart review (Monahan, 2006). In the case of Raymond, during the session in which the threat emerges, the psychologist collaborates with the client to begin to understand the possible impact of factors associated with violence and 388

to determine the specific risk and how to mediate that risk. Recent literature has clustered the variables related to violence in four domains (Monahan et al., 2001): ■

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Dispositional variables, including age, age of first criminal conviction, gender, personality variables involving impulsivity or those involving longrange planning abilities, and neurological factors, such as closed-head injury; Historical variables, including educational level, childhood and adolescent antisocial behavior, prior convictions for violence, comparable circumstances of prior violence, pattern of unstable conflictual interpersonal relationships, substance abuse history, and history of mental hospitalization; Contextual variables, including family stability, dangerous or criminal social network, quality of social support (e.g., is Raymond’s fiancée using again), level of occupational responsibilities, financial resources, access and presence of weapons, and availability of victim(s); and Clinical variables, including types and symptoms of mental disorder, whether alcohol or drug use is occurring, physical warning signs, level of functioning to cope with stressors, recent changes in mood states (anger, anxiety, and sadness), daydreams or thoughts about physically hurting or injuring someone, specificity of violent thoughts or plans, and level of intention to act on violent thoughts.

A comprehensive assessment will lead to corroboration between the findings of an actuarial assessment instrument and a clinical assessment about the various relevant precipitating and inhibiting factors that will produce effective interventions. Obtaining collateral information from key respondents or sources (e.g., Raymond’s sponsor, prior spouses or partners, prior treatment professionals, hospital records) also can lead to better clinical judgments as further multiple measure corroboration will lead to greater certainty about findings (Benjamin et al., 2009). Many of these collateral discussions could occur with Raymond present so that the therapeutic alliance will not be compromised by Raymond’s real or imagined concerns about the psychologist. The

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effective processing of the concerns will more likely occur if Raymond witnesses the psychologist’s good faith efforts at helping him to protect his sobriety, relationship, and mental health. Scott and Resnick (2006) recommended detailing the likely impact of each known risk variable and the management or treatment strategy to implement the violence prevention plan. On the basis of corroboration of findings from the risk assessment, the psychologist can explore a range of violence prevention interventions with the client as part of the assessment process to continue to build the therapeutic alliance. When warning is the best option. If a duty to warn exists or if issuing a warning is determined to be the best option, the next issue is how to execute it. Warning includes notification of the potential victim(s) of the nature of the threat, the person making the threat, and its imminence. In some instances, the warning might require a report to the jurisdiction’s child abuse reporting agency if the threat is made about a child (Volume 2, Chapter 1, this handbook, discusses such physical threats to children). In most instances, threats will be made toward other adults. Some jurisdictions also require that law enforcement be contacted when a warning is issued. Reports to police must contain all needed information so that the nature of the threat is clear to the police but should not contain other private client data. A clear and authoritative approach to communications with law enforcement is important as Huber et al. (2000) found substantial variability in police policy and responses subsequent to a Tarasoff-type warning. If the therapeutic alliance is good, such a warning can occur with the client present as the phone calls are being made. This type of approach provides additional data about the client’s ability to increase inhibiting behaviors to reduce the risk of acting out. The potential victim probably will be more realistic regarding his or her safety, especially if the threat is imminent. If law enforcement has been notified, the potential victim should be informed about that notification. Regardless of whether the client is present when calls are made, psychologists should be prepared for a variety of responses from the person

receiving the warning. Binder and McNiel (1996) found that when psychiatric residents were surveyed on their experiences with warning intended victims, two reactions dominated: The victims either already knew of the risk or denied that the client would ever hurt them. In fact, nearly three quarters of victims were aware of the threat the client presented. The client also will engage in processing his or her thoughts and feelings. If the therapeutic alliance is not good, strong consideration should be given to complying with the duty to warn or duty to protect by engaging in an involuntary commitment evaluation for the reasons discussed thus far. CLIENTS WHO ARE DANGEROUS TO SELF When clients are suicidal or at high risk for serious self-injury, the professional has a duty to protect the client from carrying out the self-destructive act. This duty is not considered a “duty to warn” because no third party is at risk of harm. Usually protecting the client involves intensifying treatment, seeking voluntary hospitalization, or securing the client’s permission to include loved ones in the treatment until the risk of suicide or self-harm passes (Bongar, 2002; Jobes & O’Connor, 2009). With an uncooperative client who refuses efforts to change treatment or involve loved ones, breaching confidentiality may be necessary to get the client hospitalized on an involuntary basis. If there is a crisis and immediate risk, professionals may need to notify the police and loved ones about the client’s self-destructive intent. Any of these actions are ethically justified to keep the client safe from his or her suicidal intent, though professionals are advised to consider the least restrictive alternatives most in keeping with the client’s wishes as the first line of treatment. When the professional judges such alternatives unlikely to be helpful, breaches of confidentiality are appropriate (Bongar, 2002; Jobes & O’Connor, 2009). The underlying considerations and potential interventions for suicide are similar to when a client may pose a danger to others. Thus, just as there is a tension between maintaining confidentiality and breaking it with potentially homicidal clients, a similar issue exists with possible suicide. Similarly, balancing client autonomy with client welfare underlies 389

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decision making in both potential homicidal and potential suicidal situations. Ideally, if the therapeutic alliance is strong enough, the psychologist will be able to negotiate the balancing act by working with the client to implement interventions that will promote both client well-being and choice. At times, however, the psychologist may have to make a decision to break confidentiality to notify the client’s loved ones or to attempt hospitalization on an involuntary or emergency basis. Welfel’s (2010) decisionmaking model can be helpful when confronted with suicidal clients and the potential for these types of dilemmas. A variety of sources provide useful clinical guidance to professionals who will see suicidal clients. In fact, on the basis of interactions with malpractice attorneys who bring suit when a client dies by suicide, being familiar with the literature can stave off suits. A thorough review of conducting suicide assessments is provided by Shea (1999), and a collaborative approach to working with suicidal clients that has a solid research base is described by Jobes (2006). Many other resources are available (e.g., American Psychiatric Association, 2003; Oordt et al., 2005), including a newer book about the interpersonal theory of suicide was written by Joiner, Van Orden, Witte, and Rudd (2009). Psychologists who work for institutions such as schools, colleges, or prisons may be called on to develop suicide prevention and intervention protocols, and instead of reinventing the wheel, professionals should consult with the American Association of Suicidology (n.d.) or the Suicide Prevention Resource Center (n.d.). The majority of clients are suicidal for discrete periods of time. For some, however, suicidality seems to be a lifestyle or pattern of behavior, and these individuals need special approaches. Dialectical behavior therapy has been shown to decrease suicidal behaviors in clients with borderline personality disorder (Neacsiu, Rizvi, & Linehan, 2010) and other approaches may be useful (see Paris, 2002). Of note, hospitalizing these types of clients may be contraindicated so consultation and training will be important when working with clients who are chronically suicidal (Paris, 2002). A resource for those who work with adolescents was developed by the American Academy of Pediatrics 390

(Shain & Committee on Adolescence, American Academy of Pediatrics, 2007; see also Volume 2, Chapter 1, this handbook). We hasten to add that adolescents may engage in risky behavior that is not evidence of suicidality in and of itself but that may pose significant risk to the teen’s well-being. Clinicians may then have the difficult task of deciding when such behavior moves from normal development to behavior that warrants potentially coercive interventions such as breaking confidentiality. Before moving to the next section, we would be remiss if we did not address the issue of no-harm contracts. Some mental health professionals have relied on a formal or informal agreement with a client that she or he will not harm herself or himself before the next session. There is no evidence, however, that such agreements in and of themselves are preventive of suicidal behavior and, in fact, they could heighten suicidality among oppositional individuals. Furthermore, in a malpractice action, the fact that a clinician relied on a no-harm contract could be used against the professional. Instead, the literature and experts recommend the use of safety agreements, coping plans, and commitment to therapy statements (e.g., Rudd, Mandrusiak, & Joiner, 2006). With these documents, the therapist and client develop alternatives to self-harming behaviors, and this gives the client something to use when in crisis and experiencing tunnel vision. In this way, the agreement becomes part of an overall treatment plan as opposed to a stand-alone intervention that may be of limited use in the midst of an emergency.

Deliberate Self-Injurious Actions Another distinction that needs to be made is between suicidal intent or behavior (i.e., wanting to die) and self-injurious behaviors. Many times a person who is engaging in self-injurious behavior, such as cutting or burning, is doing so to regulate emotions and to avoid escalating to suicidality, so intervening as if the person is suicidal could be counterproductive (Walsh, 2009). In these situations, the duty to protect may become a consideration if the behavior can lead to serious injury or death or if the person appears to be unable to think clearly because of psychosis or other cognitive impairment (Walsh, 2009).

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The literature also has included reference to “indirect self-destructive behavior” (e.g., Reiss & Tishler, 2008), which refers to behavior that has long-term negative consequences and may be the result of passive suicidality (e.g., smoking, not eating healthily, not taking medications). The timeline for the negative result is so uncertain and extended that the duty to protect would not seem to apply. Instead, the clinician may want to focus on underlying issues, such as concerns about loss of control (Reiss & Tishler, 2008), or to utilize behavioral interventions or motivational interviewing to help the person modify health-related behaviors (e.g., Rollnick, Miller, & Butler, 2007). An extreme form of these nonsuicidal behaviors that can have serious health consequences and lead to death is anorexia (Werth, Wright, Archambault, & Bardash, 2003). There has been more discussion of anorexia and whether to use coercive interventions or, in extreme situations, stop intervening and resort to palliative care. We merely raise the issue here for the reader to consider anorexia as an example of a self-harm situation that may or may not lead to a perceived duty to protect (Werth et al., 2003).

Clients Near the End of Life: The Question of Rational Suicide One of the most difficult moral dilemmas being faced in this age of increasing medical technology, coupled with increasing medical cost, is whether individuals have the right hasten their own deaths in the face of terminal illnesses and whether others have a moral obligation to prevent such an occurrence. No question exists about the responsibility of a mental health professional to intervene if a person is considering hastening his or her death and the client is not fully rational— either because of a diagnosable mental illness or because of cognitive impairment. In such circumstances, the duty of a mental health professional is identical to other situations in which the person is a danger to self. The debate arises around what to do if the client may have made a well-reasoned decision that death is her or his best option (Werth & Richmond, 2009). Only one code of ethics addresses this issue—the

American Counseling Association (2005) Code of Ethics. It reads: A.9.c. Confidentiality Counselors who provide services to terminally ill individuals who are considering hastening their own deaths have the option of breaking or not breaking confidentiality depending on applicable laws and specific circumstances of the situation and after seeking consultation or supervision from appropriate professional and legal parties. (p. 6) Most state regulations governing mental health practice do not directly address this issue. The provisions that permit therapists to breach confidentiality to protect a client from harm can apply in this type of situation; however, there is some debate about what would constitute an appropriate duty to protect and when it would no longer adhere. For example, Werth and Rogers (2005) argued that with some medically ill clients a thorough assessment could constitute an intervention sufficient to meet the duty to protect. It the client’s desire to die did not abate after the evaluation and any subsequent interventions, then the therapist would not have a basis to attempt to prevent the client from taking action that may affect the manner or timing of death. In such situations, we recommend that consultation and documentation are especially important, regardless of the therapist’s decision. OTHER SITUATIONS IN WHICH CLIENTS PRESENT A DANGER The history of the duty to protect has demonstrated the dynamic nature of the ethical and legal responsibilities of a psychologist working with clients who threaten others or themselves. In several other types of situations, clients may represent a danger to other people. For example, there are important considerations when a client has threatened a public official or engages in self-injury without the intent to die (Werth et al., 2009). Several such circumstances deserve attention, including (a) the duty of the psychologist when a client may be at risk for homicide– suicide; (b) the ethical responsibility of the 391

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psychologist to third parties when a client is likely to be operating a motor vehicle or heavy equipment in a way that presents a danger to others on the roadways or in the workplace; (c) the responsibility of the psychologist when a client has a serious contagious disease for which he or she is putting others at risk; (d) the ethical responsibility when intimate partner violence or stalking is occurring; and (e) the responsibility of the psychologist for clients in an era of electronic communication, online social networking, listservs, and related electronic communication channels. In each of these circumstances, the psychologist must balance the duty to respect client autonomy and privacy against the duty to act with beneficence and to nonmaleficence.

Homicide–Suicide A small proportion of individuals who are intending to kill others are planning a nearly simultaneous suicide. Approximately 1,500 homicide–suicide events occur annually in the United States, the great majority of them carried out by a male perpetrator (Malphurs & Llorente, 2006). Cho’s suicide after the Virginia Tech killing of 31 others and the Columbine High School murder–suicides of Harris and Klebold are the most striking and tragic examples of homicide–suicide in recent U.S. history. Workplace-based homicide– suicide has received so much media attention that the term going postal has been coined to describe these events. Several other types of homicide–suicide exist, however, all of which are substantially more common than the work and school killings. Killing of a partner or former partner from an intimate relationship before a suicide is the most common type of homicide– suicide in the United States and many other countries (Barber et al., 2008; Flynn et al., 2009; Hillbrand, 2001; Malphurs & Llorente, 2006). Two subtypes exist within this category: (a) the partner or former partner with a history of relationship conflict and domestic violence and (b) the older male partner overburdened by his caretaking role who takes his partner’s and his own life (Malphurs & Llorente, 2006). Parent–child homicide–suicide also occurs, and when not associated with domestic violence by a male perpetrator, typically involves a mother who kills her children (Gross, 2008). The ratio of completed homicide–suicides to incomplete attempts is 5:1 392

(Cohen, Llorente, & Eisdorfer, 1998), a striking contrast to the data that show that suicide attempts outnumber suicide deaths by a ratio of at least 8:1 (National Institute of Mental Health, 2003). The data highlight the need for psychologists to conduct careful assessment of co-occurring aggression. Many of the individuals who carry out a homicide–suicide have never been in contact with a mental health professional. Flynn et al. (2009), for example, reported that only 10% of the 203 homicide–suicides in England and Wales between 1996 and 2005 involved individuals who had seen a mental health professional. At first glance, it seems that opportunity exists for a psychologist to intervene to prevent these tragedies. The devastating nature of the consequences argues that psychologists should be equipped to explore this possibility with clients who appear at risk, even if it happens rarely. But how does a psychologist determine risk for homicide–suicide? The clinical indicators for homicide– suicide more closely resemble the indicators for suicide than the indicators for homicide. Depression (especially psychotic depression), prior suicide attempts, paranoia, and substance abuse are common predictors (Marzuk, Tardiff, & Hirsch, 1992; Milroy, 1993), but a lengthy history of impulsivity and violence are not (Hillbrand, 2001). Those planning such acts seldom disclose their intentions to others, but if they reveal any violent intent, those disclosures focus on suicide not aggressive acts. Consequently, psychologists must take a comprehensive view of danger to self and danger to others. Because depression is the best predictor of both suicide and homicide–suicide, psychologists should assess danger to others along with suicidal intent whenever significant levels of depression are present. In short, although homicide–suicide is rare, the devastating impact of homicide–suicide on its victims, loved ones of the victims, and society demands that psychologists discard the simplistic categorization of homicide and suicide as separate events. The evidence that perpetrators do not act impulsively provides a small window of opportunity for the astute psychologist to act to reduce the risk of this violent outcome. Such actions often may include warning the potential victims, notifying law enforcement, or initiation of hospitalization.

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The Duty When Clients Are Operating Motor Vehicles or Heavy Equipment In 2008, 11,773 fatalities occurred involving drivers impaired by alcohol or drugs (National Highway Traffic Safety Administration, 2009b). All but 1% of these included drivers under the age of 65. Drivers over 65 also were frequently involved in serious and fatal motor vehicle accidents, causing 14% of all fatal vehicle accidents and 18% of all fatal pedestrian accidents (National Highway Traffic Safety Administration, 2009a). And this segment of the driving population is growing—by 19% since 1997 (National Highway Traffic Safety Administration, 2009a). What are the responsibilities of psychologists who are working with clients who appear to be at risk for driving while impaired by alcohol or drugs, dementia, or other medical factors? Thus far, no state has imposed a legal duty to protect for mental health professionals working with these clients, partly because evaluating physical health and impairments is beyond the scope of practice of the profession (Knapp & VandeCreek, 2009). The situation is different for physicians, who have been deemed legally responsible for protecting others from impaired drivers in nine jurisdictions (Insurance Information Institute, 2009). Some states permit mental health professionals to report impaired driving to appropriate state agencies. Information about state laws can be found online (e.g., Insurance Information Institute, 2011). If clients present with factors suggesting problems in driving, however, psychologists still have an ethical responsibility to explore the clients’ capacities to operate a motor vehicle and assist them in reducing the risks they may be taking with their own lives and the lives of others. Clients can be referred for a medical evaluation of their ability to drive. Older adults can be referred to driver education programs, undertake neuropsychological tests, and be assisted with driving cessation plans (Knapp & VandeCreek, 2009). With client permission, family members can be enlisted to help the client reduce the risk from driving. Psychologists must balance the client’s right to autonomy with the ethical principles of nonmaleficence and beneficence. The goal is to work with the client to help him or her appreciate the risks involved and the options available to reduce those risks.

Serious Contagious Diseases When psychologists are working with clients who have an HIV spectrum disorder, they have access to an abundant body of literature that explores their ethical and legal responsibilities when those clients are acting in ways that put others at risk for the infection (e.g., Barret, Kitchener, & Burris, 2001; Huprich, 2003; Kooyman & Barret, 2009). Few jurisdictions mandate a duty to protect for mental health professionals in this situation, but many jurisdictions and ethical standards permit disclosure of the risk to third parties (Benjamin et al., 2009). For these reasons, psychologists ought to disclose to clients limits of confidentiality relating to this issue as a routine part of the initial discussion at treatment initiation. Because informed consent is a process, not an event, psychologists should also remind clients of the limits of confidentiality when appropriate during treatment. Barret et al. (2001) and Kooyman and Barret (2009) both offer the psychologist a model for ethical decision making with clients who are placing others at risk for HIV infection. When clients threaten to deliberately infect a third party with the HIV virus with the specific intent to harm, such an action is likely to fall within the legal duty to protect (if a jurisdiction has such a legal mandate). In this situation, we strongly encourage a psychologist to consult with an attorney regarding the statutes that govern professional practice in that jurisdiction and the application of those statutes to the particular case at hand. Not every such threat is likely to be implemented, however. In the immediate aftermath of the diagnosis, clients sometimes make threatening verbalizations that they do not intend to carry out. Consequently, psychologists must carefully assess risk and discriminate between serious threats and angry comments made in moments of great distress. HIV is not the only serious and potentially fatal contagious disease from which clients may be suffering. Hepatitis (in its five variations) is the most common serious infectious disease (Centers for Disease Control and Prevention, 2009b) and tuberculosis infections are increasing in North America (Centers for Disease Control and Prevention, 2009a). Depending on the particular variant, both diseases can pose serious complications and threaten life. 393

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Little has been written about the psychologist’s ethical responsibility when information about a client’s infection with one of these diseases becomes known. Few legal mandates exist that would compel a psychologist to reveal this knowledge to a jurisdiction’s health board or to any adult who may be at risk because of his or her contact with the client (Benjamin et al., 2009). If an adult is placing a minor at risk, disclosure may be required, depending on the language of the child protection statutes of the jurisdiction in which treatment is occurring. Nevertheless, psychologists have an ethical duty to collaborate with the client to assist him or her in obtaining appropriate medical treatment to reduce or eliminate the risk, exploring the factors that may be preventing the disclosure to the third parties, and finding ways to overcome the reluctance to disclose. Again, psychologists need to balance the respect for the autonomy of the client with the ethical responsibility to do good and avoid the risk of harm both to the client and others. They also may find it helpful to obtain legal advice and to obtain the client permission to contact their health care provider.

Intimate Partner Violence According to the Centers for Disease Control and Prevention (2009c), each year women in the United States experience 4.8 million assaults and men experience 2.9 million assaults by a partner. Intimate partner violence (IPV) occurs among married couples (whether heterosexual or homosexual) and among those in dating relationships. Approximately 10% of high school students in dating relationships report being physically hurt by someone they were dating (Centers for Disease Control and Prevention, 2009d). Typically, survivors of IPV enter therapy to cope with the emotional consequences of abuse, and some couples and perpetrators are mandated to mental health services by legal authorities or child protective services (Rosenbaum & Dowd, 2009). In such circumstances the psychologist’s duty is to work with the client to help him or her be safe and to help him or her keep any children or others potentially at risk in the household safe. When the client is the perpetrator, psychologists have an obligation not only to continuously monitor the risk of new acts of violence against the partner 394

and take action to protect the partner when necessary, but also to disclose in the informed consent process the limits of confidentiality regarding the IPV. Many jurisdictions have enacted legislation regarding IPV treatment with which psychologists working with this population must be familiar (Rosenbaum & Dowd, 2009). The ethical responsibility to help the perpetrators refrain from future acts of violence and to assist victims to keeping safe is paramount. Because of the increase in legislation that mandates stalking offenders receive mental health services, psychologists also may work with these clients and be concerned about the safety of the victim (Meloy, 1997; Rosenfeld, Fava, & Galietta, 2009). Differentiating between realistic concern and unfounded worry to determine whether a duty to protect exists is not easy in this situation because stalkers may have many different diagnoses. Moreover, no comprehensive treatment has been identified as reliably effective in reducing the stalking behavior (Rosenfeld et al., 2009). A history of threats is associated with a higher risk of violence, but most threats are not carried out. If such a client makes a threat against a victim, it must be thoroughly evaluated both through interview and the risk assessment tools. Kropp, Hart, and Lyon (2008) have published a measure designed to assess risk of violence in stalking cases—Guidelines for Stalking Assessment and Management. If a stalker verbalizes a threat against a victim with whom he or she has had an intimate relationship in the past, the risk that the client will act of that threat escalates considerably (Rosenfeld, 2004).

Electronic Communication Estimates suggest that 210 billion e-mails are sent each day (Allen, 2009). How many of these involved communications between psychologists and their clients is unknown, but several hundred sites offer online counseling (Heinlen, Welfel, Richmond, & O’Donnell, 2003), and other psychologists in traditional practice offer e-mail contact with clients (Drude, 2005; Salib & Murphy, 2003; Welfel & Bunce, 2003). In one study (Welfel & Bunce, 2003), 43% of psychologists surveyed had experienced at least one e-mail contact with a client. Projections also suggest that online communications between mental health professionals and consumers are

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likely to increase (Norcross, Hedges, & Prochaska, 2002; Wolf, 2003). No data are available regarding the frequency with which psychologists have pages on social networking sites or use text messaging, Twitter, or other means to communicate with (or solicit) clients, but it is likely that the use of these media by psychologists will increase as well. Social psychology research also has demonstrated what Suler (2004) has referred to as a disinhibition effect of electronic communication. This research finds that people appear more willing to disclose highly personal information quickly while online than they are in face-to-face interactions (Joinson, 2001) and that the norms for online disclosures get established very quickly (Dietz-Uhler, Bishop-Clark, & Howard, 2005). Another aspect of this phenomenon is the tendency not to restrain negative comments and emotional content in electronic communications. The speed with which a person can hit “send” discourages reflection and self-monitoring to some degree. In situations in which clients are engaging in online communication with psychologists, this phenomenon may facilitate disclosure of relevant therapeutic information for treatment. Of course, such facilitation of self-disclosure also may be highly problematic if safeguards for confidentiality have not been implemented for this medium (Welfel & Heinlen, 2009). It is feasible that clients will use online communication to express thoughts and intentions regarding harm to self or others. In light of the increasing frequency on online communication, it is almost inevitable that clients who are feeling these impulses will use e-mail, text, Twitter, Facebook, or some other electronic variation to express these feelings to their psychologist. It may be easier to send an online “good-bye and thanks anyway” message to a psychologist than make a phone call or reveal this feeling in a session. Therefore, any psychologist who has embarked on any form of electronic communication with a client should be alert to this possibility and take steps to prevent, to the extent possible, the use of this medium for communications about violent intent. First, psychologists ought to present to clients clear guidelines regarding which clients may be suitable for online messages, refusing online contact to any clients with histories of suicidal intent,

violent urges, or diagnoses associated with high risk for suicide. Second, they need to clarify the times they will be available to read online messages and emphasize procedures for communicating with the psychologist in an emergency. In short, a careful and thorough informed consent for online communications is essential, as noted in Section 3.10 (a) of the Ethics Code (APA, 2010). Third, psychologists ought to be alert to the implications of using social networking sites and the degree of accessibility they wish their clients to have to these sites. Fourth, with all clients, psychologists should explore clients’ online activity and use of sites that offer methods to complete a suicide or violent action. In a recent case, a Canadian college student expressing suicidal ideation received encouragement during online chats to complete the suicide, an act she carried out. Finally, before the use of any online service or communication medium, psychologists should seek legal advice to ensure that appropriate legal precautions are in place and should be clear about whether their liability insurance offers coverage for electronic client contacts. CONCLUSION In this section, we highlight the important role of self-care in situations such as those we have been describing. We then end with final thoughts based on experience and provide three pieces of advice.

Self-Care A logical consideration in self-care includes the steps psychologists may want to take to manage the high levels of stress these situations engender and to avoid serious and prolonged effects on their mental health from exposure to clients who threaten violence. Most of the process includes common-sense recommendations for a healthy lifestyle that we so frequently discuss with our clients (and so frequently fail to implement in our own lives), such as good nutrition, reasonable sleep patterns, regular exercise, and time away from work with loved ones (Brems & Johnson, 2009). Psychological support for psychologists who work with threatening clients or who have worked with clients who have carried out suicides or violence toward 395

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others is also important. A substantial number of psychologists acknowledge participation in psychotherapy and have found it helpful to both their personal and professional lives (Brems & Johnson, 2009). Networking with colleagues also can offer support to stressed professionals. A less frequently mentioned strategy that can be helpful is acceptance of the probability that virtually every practitioner will experience these situations. When a psychologist acknowledges this component of practice and its likely emotional impact, he or she is less likely to experience the panic that can accompany a threatening client and may be more likely to think clearly and act deliberately. The recommendations for knowledge of established risk assessment procedures and current literature on interventions with clients at risk for violence, access to appropriate peer consultation and legal advice when needed, and understanding of appropriate documentation procedures all help psychologists manage the stress of these cases. Psychologists need to honestly assess their capacity to provide competent services to clients who threaten harm and to make referrals as needed. Psychologists are not ethically required to continue to treat clients who threaten them with harm (APA, 2010, Standard 10.10b). Arrangements for appropriate referrals are just as essential in this situation as they are when psychologists are not equipped to provide competent service to suicidal clients or those who threaten third parties.

Recommendations Three pieces of advice from ethics scholars are important to keep in mind when faced with the clinical, ethical, and legal issues presented by threatening clients. The first comes from Behnke, who has captured the ethics of managing ethical questions with this simple advice, “Never worry alone” (2005, para. 8). If an issue is causing anxiety or doubt, a prudent psychologist discusses that ethical issue with a trusted colleague or supervisor. If an issue causes a psychologist to worry, there is invariably a good reason for that worry. The second piece of sage advice comes from Haas and Malouf (2005) who have recommended that professionals use the “clean well-lit room standard” when deciding how to respond to ethical questions. If a professional is likely to feel comfortable describing 396

the plan for responding to an ethical issue in the presence of colleagues at a case conference or other similar setting, the proposed action is more likely to be consistent with ethical standards than if the psychologist experiences any hesitation at the thought of disclosing the plan to respected colleagues. The third piece of advice is to remember that competence is judged on the basis of performance, not on capacity (Welfel, 2010). In other words, a professional actually must implement what they know to be considered competent action, regardless of their preexisting knowledge base, level of clinical experience, or history with the particular case. Just as the top ranked athletes in a competition are judged on the basis of current performance, not history or capacity, so too are all mental health professionals evaluated on what they do when their actions come under scrutiny. If psychologists keep current with the literature, know current legal and ethical standards, consult as needed, and appropriately self-monitor to prevent emotional distress from interfering with effective practice, they are well positioned to provide competent service to clients who threaten harm to self or others.

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Pope, K. S., & Vasquez, M. J. T. (2005). How to survive and thrive as a therapist: Information, ideas, and resources for psychologists in practice. Washington, DC: American Psychological Association. Reiss, N. S., & Tishler, C. L. (2008). Suicidality in nursing home residents: Part II. Professional Psychology: Research and Practice, 39, 271–275. doi:10:1037/0735–7028.39.3.264 Rest, J. R. (1984). Research on moral development: Implications for training counseling psychologists. The Counseling Psychologist, 12, 19–29. doi:10.1177/0011000084123003 Rollnick, S., Miller, W. R., & Butler, C. C. (2007). Motivational interviewing in health care: Helping patients change behavior. New York, NY: Guilford Press. Rosenbaum, A., & Dowd, L. S. (2009). Risk assessment and the duty to protect in cases involving intimate partner violence. In J. L. Werth Jr., E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect: Ethical, legal, and professional responsibilities of mental health professionals (pp. 79–94). Washington, DC: American Psychological Association. doi:10.1037/11866-006 Rosenfeld, B. (2004). Violence risk factors in stalking and obsessional harassment: A review and preliminary meta-analysis. Criminal Justice and Behavior, 31, 9–36. doi:10:1177/0093854803259241 Rosenfeld, B., Fava, J., & Galietta, M. (2009). Working with the stalking offender: Considerations for risk assessment and intervention. In J. L. Werth Jr., E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect: Ethical, legal, and professional responsibilities of mental health professionals (pp. 95–110). Washington, DC: American Psychological Association. doi:10.1037/11866-007 Rudd, M. D., Mandrusiak, M., & Joiner, T. E., Jr. (2006). The case against no-suicide contracts: The commitment to treatment statement as a practice alternative. Journal of Clinical Psychology, 62, 243–251. doi:10:1002/jclp. 20227 Salib, J. C., & Murphy, M. J. (2003). Factors associated with technology adoption in private practice. In Practice, 23, 72–76. Scott, C. L., & Resnick, P. J. (2006). Violence risk assessment in persons with mental illness. Aggression 399

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CHAPTER 15

ETHICAL ISSUES WITH PATIENTS AT A HIGH RISK FOR TREATMENT FAILURE Samuel J. Knapp and John Gavazzi

Although professional psychologists generally have rewarding careers, at times they may feel deeply frustrated with patients who miss appointments; demonstrate inappropriate behaviors; display extreme emotional pain; or exhibit signs, symptoms, and behaviors that appear resistant to good treatment. This chapter outlines ethical considerations when treating patients at a high risk for treatment failure (high-risk patients). Ethical psychologists want to do more than perform at the minimum level to avoid being disciplined; they want to practice at a high level and to the best of their abilities. (More information on foundational ethics can be found in Chapter 1 of this volume.) Consequently, this chapter does more than just review the specific Standards found in the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010); it also highlights subtle ethical issues to consider when treating high-risk patients. This chapter initially identifies patient issues, the context of treatment, and psychologist factors that increase the risk of treatment failure. Then, it reviews ethically based quality-enhancing strategies modeled on the risk management strategies of Bennett et al. (2006). Case examples will illustrate salient points. WHEN ARE PATIENTS AT A HIGH RISK FOR TREATMENT FAILURE? We describe treatment failures as instances when patients do not reach therapeutic goals, whether these involve reducing symptoms, increasing insight, interrupting negative patterns of thinking or behaving, or

improving their abilities to cope with stressors. The likelihood of treatment failure (or success) depends on the interaction of the patient’s condition, the context of treatment, and the resources of the psychologists. In addition to these issues, we also address several red flag indicators. Each of these factors will be considered separately in the following sections.

Patient Factors Some patient characteristics that heighten the risk of treatment failure or make the psychotherapy process more taxing include the patients’ (a) intense negative affect, often in response to extreme traumas; (b) interpersonal styles or relationship-building deficits that impede forming a treatment relationship; (c) lack of social assets; and (d) limited insight or the inability to reflect on their own behavior. Although certain diagnoses may be more common among high-risk patients, even patients with routine diagnoses may have unique personalities that make treatment more difficult. For example, such patients may struggle to engage fully in psychotherapy because of an avoidant style, but the constellation of symptoms does not meet the specific requirements for an Axis II diagnosis. Therefore, descriptions of patient characteristics may better help to assess the potential for treatment failure rather than relying solely on a diagnostic descriptor. The related advantage is that behavioral descriptors may minimize a tendency to stigmatize or label patients unfairly in an attempt to blame the patient for treatment failure. For example, the word borderline has a pejorative connotation, and care must be taken not to dismiss all patient concerns as representing borderline tendencies.

DOI: 10.1037/13271-015 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Also, patient characteristics vary over time. Some patients who ordinarily could respond favorably to treatment may become difficult if they are in the midst of unusual stressors, such as job loss or marital infidelity. Conversely, other patients with chronic and pervasive problems may be more cooperative in therapy if the external supports are maximized, such as having an especially kind employer, substantial support from family members, a 12-step program, a church group, or another social network.

Intense Negative Affect Some patients present in significant distress because of their agony and despair or their past physical, emotional, and sexual abuse. Treating psychologists are not immune from exposure to this emotional pain. Coping with intense negative affect may be the most difficult task to manage in psychotherapy (Ackerly, Burnell, Holder, & Kurdek, 1988; Hellman, Morrison, & Abramowitz, 1986). The extent of the trauma reported by patients can cause secondary or vicarious trauma in the therapist and reduce the objectivity of psychologists and the effectiveness of their treatment. (More information on self-care can be found in Chapter 7 of this volume.) Case Example 1 A psychologist was treating a former missionary who was a relief worker during a civil war in a developing country and who witnessed great brutality, including infanticide, torture, wars, and starvation. The patient had serious posttraumatic stress disorder (PTSD), including loss of sleep, nightmares, startle reactions, and significant dysphoria. The events described by the patient affected the psychologist to the point at which she refused to take on any more trauma patients until this one became stabilized. To maintain self-care and an emotionally healthy stance toward their work, other psychologists similarly will limit the number of trauma patients with whom they work at any given time because of the cumulative stress of dealing with multiple traumas.

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Relationship Deficits Certain patients have difficulty forming meaningful treatment relationships. They may withhold important information, fail to express concerns appropriately, distrust their psychologists, or respond angrily to constructive feedback. Their difficulties in developing a productive relationship may manifest directly in insults or challenges to the therapist, or indirectly through missing appointments, arriving late for sessions, or failing to pay for therapy as agreed on. They may at times become verbally aggressive, demand attention inappropriately, or act manipulatively. Their relationships with other treatment professionals also may be strained. Case Example 2 A female psychologist had a male patient who challenged boundaries and asked personal questions such as whether she had a boyfriend and what she liked to do in her spare time. When the psychologist tried to redirect the conversation on the benefits of a professional and objective relationship, the patient alleged that she was interested in him romantically because “you always doll yourself up for these sessions.” In reality, the attire of the psychologist was professionally appropriate and not at all seductive. As this case example illustrates, not all disruptive patient behavior is overtly hostile. An eroticized treatment alliance is not therapeutic and the response of the psychologist to erotic communication is crucial in determining the course of therapy. In this case, certain clinical questions may become relevant. Does sexualized behavior represent a more generalized style of relating to others or expressing affection, and does it have implications for his ability to reach his life goals? What did this behavior say about his perception of the goals for treatment? In addition to trying to use the event as a way for the patient to gain insight, the psychologist documented the event carefully and sought consultation to evaluate whether she had inadvertently encouraged an eroticized transference.

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Lack of Social Assets The same factors that make it difficult for patients to form productive therapeutic relationships also may make it difficult for them to initiate or maintain positive social networks outside of treatment. Often, the weak social skills of high-risk patients result in fewer family supports, or they have family members who provide more stress than support. Long-standing interpersonal limitations may have impaired their career advancement, limited their success as parents, or kept them from fulfilling other social obligations. Treatment also may be complicated if the patient presents in the context of stressful or protracted litigation. For some individuals, their distrustful and aggressive personality styles may cause them to gravitate toward litigation to resolve conflict and also may cause them to struggle to engage appropriately in psychotherapy.

Lack of Insight High-risk patients may lack insight into their behavior or their internal processes that prevents them from understanding how they contribute to their own problems or how to generate useful solutions. Their worldview and self-concepts may be rigid and resistant to change. Case Example 3 A patient had been in treatment for six sessions and was making minimal progress. Then he stated that he had been lying to the psychologist. He proudly announced to her that he had fooled her and he had been using recreational drugs during the entire time he had been in treatment. “It makes me think you really are not that smart, since you never picked it up,” he proclaimed. The ambivalence of the patient toward therapy reduced the likelihood of a treatment success from the outset. The psychologist did not become entangled in a power struggle with the patient and readily acknowledged that the patient had her fooled. However, she used the opportunity to address his ambivalence by asking him to review his goals for treatment and to consider how his goal of “fooling

her” helped improve his life or helped him reach useful goals.

Context of Therapy Most therapy occurs when patients voluntarily seek out a psychologist for treatment. However, some patients may attend therapy for secondary reasons, such as in response to pressure from an employer, spouse, or another significant person in their lives. If patients are in the process of a contentious divorce and custody fight, their attorneys might have suggested that therapy would help give the impression that they are conscientious and concerned parents. If patients are on probation, the court may have ordered them into therapy. If teenagers have gotten into trouble, their parents may require them to attend therapy. Some pressured patients may do well in therapy. A patient with co-occurring substance abuse and antisocial features may become more cooperative in therapy, if it is court ordered and involves random urine screens, although the incentive may stem from the possibility of a reduced prison sentence or probation rather than jail time. The patient who is motivated to stay married may have sufficient reason to attend therapy, at least while the fear of loss is present. Other patients who enter treatment because of outside pressures may be unwilling to invest emotionally in therapy, to relate their life situation accurately, or to reflect honestly on their behaviors. As an example, parents who enter therapy while in the middle of a custody fight may not report events accurately or thoroughly because of the emotional upheaval related to the legal process. The intensity of conflict and the continual rehearsal for an upcoming court date might lead them to overemphasize their spouse’s inappropriate behavior and to minimize their own contributions to the conflict. Or, they may be afraid to disclose information under the fear that their records will somehow end up being disclosed in court. Other unwilling patients may attend several sessions and use their lack of progress in treatment as proof to the third party that therapy is not helpful. Some court-referred patients may cooperate just enough to avoid judicial sanctions

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but show little insight or little motivation to change the behaviors that led to court-ordered treatment. In summary, the objective facts of the referral, whether court ordered or initiated under pressure from third parties, mean less than the manner in which the patient approaches and invests in therapy. Case Example 4 A patient entered therapy because of a recent driving under the influence charge. If the patient attended outpatient psychotherapy for 20 sessions, performed community service, paid costs and fines, and remained abstinent from alcohol for 90 days (via urinalysis testing), she would be eligible for an Accelerated Rehabilitation Disposition (ARD) program and eventually might have the charge expunged from her record. The patient, who was a member of a prominent local family, explained that psychotherapy was merely part of “having my ticket punched” to complete the ARD program. Ordinarily this psychologist would treat only patients who made a sincere commitment to therapy. In this case, the psychologist recognized that the patient had little internal motivation to participate fully in psychotherapy other than to complete the ARD program. However, he saw some flexibility in her behavior and used the session time to help her gain some modest insight into her behavior.

Psychologists’ Skills and Resources The final patient factor related to high-risk treatment includes the resources and skills of the treating psychologist. All psychologists who treat high-risk patients should honestly consider the match between their skills and resources and patient needs. Of course, all psychologists must be competent in whatever professional services they provide. (More information on competence can be found in Chapter 6 of this volume.) The issue of competence becomes especially salient with high-risk patients, however, because of a greater possibility for treatment failure. Thus, the generic therapeutic approach and normal relationship-building capacities of the psychologist are necessary, but they may not be sufficient to work 404

successfully with high-risk patients. Rather, the treating psychologist may need to have proficiency in specific techniques. For example, research demonstrates the effectiveness of specific treatment approaches, such as dialectical behavior therapy (see review by Lynch, Trost, Salsman, & Linehan, 2007), transference-focused psychotherapy (Yeomans, Clarkin, & Kernberg, 2002), or schema-focused psychotherapy (Young, Klosko, & Weishaar, 2003) for patients with borderline personality disorder. Psychologists who do not have experience or training in these or other evidence-supported treatments should carefully consider whether they should accept a patient suffering with borderline personality disorder or continue treatment once these factors are known. In addition, the decision to accept a high-risk patient requires psychologists to consider their emotional resources, time, and external supports. The Ethics Code states that psychologists must refrain from treating patients if they are impaired or, if they are impaired, to seek guidance or make a referral for existing patients (Standard 2.06). However, self-care issues with high-risk patients can be more subtle. That is, the psychologist may not have a pervasive impairment caused by alcoholism or a serious mental illness, but the emotional investment required by some high-risk patients may reduce the ability of the psychologist to treat this patient successfully or to fulfill other obligations. Effective psychologists are attuned to their level of well-being and are aware that having greater numbers of clinically complex patients can become emotionally overwhelming. Just as the interpersonal styles and resources of patients fluctuate over time, the internal and external resources of psychologists fluctuate over time as well. Psychologists experience the same everyday personal stressors as nonpsychologists. They struggle with relationship problems, financial worries, interpersonal losses such as death and divorce, and family strains. Effective psychologists monitor their emotional resources and clinical schedules to determine how well they are functioning with their current high-risk patients and whether they should accept new ones. Even psychologists with skills in dealing with highrisk patients need the emotional resources to treat those patients effectively. If those psychologists bear

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the additional burden of significant personal or professional stressors, then their ability to help another high-risk patient becomes diminished. Overtaxed psychologists may directly or indirectly communicate to the patient that they cannot handle their intense emotional affect, which may lead to premature termination or ineffective psychotherapy. Therefore, self-care techniques, such as maintaining a healthy work–life balance and moderating the number of psychologically complex patients, are necessary for psychologists to reach for clinical and ethical excellence. Case Example 5 A psychologist was undergoing serious health problems when he accepted a referral of a professional with depression. Within the first few sessions, the patient pushed boundaries in therapy, such as asking the psychologist probing questions about his personal and work life and then sending personal e-mails. Although the psychologist continually worked with the patient about the importance of keeping boundaries within therapy, he saw the patient walking her dog near his house, even though the patient did not live near the psychologist. During the session, the patient minimized the significance of the event and stated that she would walk her dog wherever she wanted. The psychologist found himself becoming more emotionally overwhelmed by the patient, in part because of his health problems. In spite of his best efforts at explaining and setting boundaries, the psychologist realized that this patient was not responding well to his interventions, and a reconsideration of the treatment plan was in order. After the dog-walking experience, the psychologist worried that treatment had become counterproductive and that the patient’s intrusive behavior might escalate further. He struggled with his desire to help the patient versus his concern that he might not be able to treat her effectively, given that she was so

reactive to this most recent challenge to boundaries. On the basis of consultations that addressed his emotional struggles in the context of challenging patient behaviors, the psychologist decided to refer the patient. High-risk patients often engender negative feelings within their treating psychologists. Psychologists need to attend to their own emotional reactions during sessions and remain aware of the emotional dynamics of the therapeutic relationship. Without excusing inappropriate behavior and without responding in a nontherapeutic manner (e.g., with a harsh tone or a condescending demeanor), psychologists need to assess accurately the patient’s pathology and respond effectively. The patient’s difficulties in forming and maintaining the treatment relationship itself may reflect a more fundamental problem with relationships and not just with the psychologist specifically. Thus, the strengthening of the therapeutic relationship, which may not be a major theme for less complex patients, can be a central issue throughout therapy with high-risk patients. Furthermore, a practical psychologist needs to consider all available external resources. With high-risk patients, multiple community resources may be needed. For example, the psychologist needs to know how patients can access a 24-hour crisis service. Psychologists need to have the ability to facilitate a voluntary or involuntary psychiatric hospitalization (if necessary) and know skilled psychopharmacologists. A psychiatrist or prescribing psychologist are likely the best options with highrisk patients, but in some areas of the country, a primary care physician or nurse practitioner with knowledge of psychotropic medications, some understanding of the needs of psychologically complex patients, and a willingness to work with these patients may be the only option. Consequently, prudent psychologists screen for potentially dangerous patients during the initial phone call. An initial phone call with a patient who reports a history of multiple inpatient interventions, antipsychotic medications, or criminal justice involvement should prompt more detailed follow-up questions. For example, a petite female psychologist 405

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who works some evenings will meet with new male patients only during the day, when other staff members are in the office. Another psychologist works in a partial hospitalization program with patients with serious and pervasive mental illnesses. Intermittently, a patient will manifest acute psychosis during treatment, and it is necessary to isolate the patient from the group or to speak to the patient in private. These patients rarely need involuntary inpatient psychiatric care. Although these patients occasionally present a risk of danger, the agency trains all staff in nonviolent defensive procedures; has a protocol for response when patients threaten harm; and has a close working relationship with the local police force, which will intervene on short notice if necessary. Also, psychologists’ assessment of their workplace resources is important. Prudent psychologists ensure their safety by training office personnel and structuring the physical layout of their offices appropriately. Well-trained staff and colleagues may use a code word that indicates the possibility of a physical threat. Also, careful psychologists will arrange their office furniture so that patients do not sit between them and the door. To reach for excellence, psychologists’ resources need to include consultative relationships to assist them in handling the emotional and technical challenges that high-risk patients may present. Although no ethical standard explicitly requires psychologists to seek ongoing consultations, we recommend that all psychologists participate in a protective social network in which colleagues provide and receive regular feedback on their behavior and through which continual interaction exposes them to developments in the field. Among other benefits, the group members may assist each other in identifying situations in which the personal distress of one of the members appears to be interfering with his or her effectiveness. When dealing with complex patients, the benefit of ongoing consultation becomes more salient. Some authorities have gone so far as to recommend that no psychotherapist should treat a patient with a bona fide borderline personality disorder unless they are part of an ongoing consultation group (e.g., Manning, 2005). 406

Red Flag Indicators Optimally, psychologists identify patients at a high risk of failure at the beginning of or early in treatment so that appropriate clinical decisions can be made. Unfortunately, the identification of patients at a high risk of failure can be difficult early in treatment because some may present well on the phone or during the initial sessions, and the extent of the patient’s pathology may not become apparent until several sessions have passed. Consequently, psychologists must be flexible with their diagnoses and be willing to change treatment plans. Indicators of who will be difficult to treat can be found in the initial phone contact or intake. They may include a history of extensive psychiatric services (including inpatient, partial, outpatient, pastoral care, substance abuse, and employee assistance program sessions), at-risk historical factors (such as childhood abuse, criminal record, troubled work history, multiple jobs, multiple episodes of unemployment), impaired interpersonal relationships (such as multiple marriages, broken relations with family members), or unusual behavior in the interview (such as being demanding, suspicious, impulsive, or overreacting). None of these factors is, in and of itself, conclusive, and consideration must be given for the total picture presented by the patient. Other factors that may emerge later in treatment include the patient’s overall response to interventions and the development of an effective treatment relationship. Some psychologists see patients for too long before deciding that a change in treatment plan is needed. Stewart and Chambliss (2008) reported that psychologists averaged 12 sessions before seeking a treatment referral or consultation. Certainly, some patients need more time to benefit from therapy, and extraordinarily stressful events may occur that prevent patients from making therapeutic gains. Nonetheless, quick responders to therapy tend to have better outcomes than slow responders. One of the important indicators for a positive outcome in psychotherapy is the ability of the patient to develop a treatment alliance. Although most psychologists intuitively understand this concept, research demonstrates that the lack of an effective alliance is a poor prognosticator for treatment, even with pharmacotherapy (Krupnick et al., 1996).

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Therefore, the therapeutic alliance becomes one of the critical factors in mental health treatment. We recommend that if patients fail to improve by the fourth session in the absence of obvious external stressors, or fail to develop a productive therapeutic relationship, then it may be prudent to revisit the patient goals, the therapeutic method, and the treatment relationship. USING ETHICAL PRINCIPLES TO ENHANCE QUALITY OF SERVICES Psychologists want to do more than avoid disciplinary actions or to meet only the minimal standards of the Ethics Code; they want to practice as conscientiously as possible to promote meaningful change with their patients. This approach includes sensitivity to the subtle ways in which psychologists can maximize virtuous behavior within the context of their professional roles. Psychologists working with high-risk patients can improve the quality of their care by attending to the ethical standards of the profession and by incorporating ethically based qualityenhancing strategies in their practices.

Conscientiously Following Ethical Standards Psychologists need to be especially careful about following basic principles of effective psychotherapy and good ethical behavior. The following section provides examples in which the establishment of clear boundaries and the prudent use of informed consent can reduce problems when treating highrisk patients.

Maintaining Clear Boundaries A great deal of emphasis and sensitivity need to be given to therapeutic boundaries. (More information on boundaries and multiple relationships can be found in Chapter 9 of this volume.) Standard 3.05, Multiple Relationships, notes that multiple relationships are not inherently unethical, but it requires psychologists to avoid those that are clinically contraindicated. When treating high-risk patients who struggle with healthy attachments, psychologists need to be sensitive to how a multiple relationship may arise and become clinically contraindicated.

With high-risk patients it is prudent to avoid any multiple relationships. If the psychologist keeps the boundaries clear, high-risk patients will have less chance of becoming confused about the shifting roles of the psychologist, and psychologists will have less chance of losing therapeutic focus by unwittingly engaging the patient’s unresolved emotional issues or unhealthy interpersonal patterns. Case Example 6 On the phone, a psychologist was getting background information to determine whether to accept a patient. The patient had several red flag indicators, such as a history of litigation and several marriages. The psychologist learned enough to determine that he had briefly met this individual at a wedding several months before. They have some friends in common, although the likelihood that they would be involved with each other on a social basis was low. In the absence of red flag indicators, and because the overlapping social contacts were not particularly close, the psychologist probably would have accepted the caller as a patient. However, the psychologist understood that many high-risk patients cannot separate the parameters of the therapeutic relationship from a social or business relationship, or they would be more likely to misinterpret behavior, thus making treatment more difficult. For the same reasons, psychologists need to selfdisclose very selectively with high-risk patients. As noted in Chapter 9 of this volume, self-disclosure needs to be initiated only for the patient’s benefit and on a limited basis. However, for high-risk patients, consideration needs to be given to the possibility that the patient may not understand the purpose of the self-disclosure or may misinterpret its meaning.

Informed Consent Informed consent is an ethical standard by which a psychologist needs to notify the patient of important aspects of therapy before treatment begins. (More information on informed consent can be found in Chapter 12 of this volume.) Informed consent is traditionally viewed as a process that occurs at the 407

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beginning of treatment, although informed consent issues may need to be revisited throughout the course of treatment. The moral principle behind informed consent is generally viewed as respect for autonomous decision making by the patient. With high-risk patients, psychologists need to be especially clear about the parameters of treatment in the informed consent process. Even minor billing misunderstandings, which could be cleared up easily with most patients, could result in a deterioration of the psychotherapeutic relationship with high-risk patients. Case Example 7 A patient presented for psychotherapy as instructed by her attorney because of her stress in facing upcoming litigation. Shortly into the first interview, it became clear that the patient wanted a forensic evaluation (which this psychologist did not offer as a professional service). The psychologist informed the patient of the differences between forensic and clinical services and, noting the extreme stress of the patient, offered therapy. The patient scheduled another appointment and accepted a referral for a forensic evaluation. In the following session, the patient asked how this treatment would help her win her court case. It appeared that the patient never grasped the difference between a treatment relationship and the forensic issues. In response, the psychologist supplemented the oral informed consent process with written materials. The psychologist also requested that the patient, psychologist, and attorney speak together to ensure that the patient and the lawyer understood the difference between a treating and a forensic relationship. With high-risk patients, or those with particular conditions, the psychologist may want to provide more details about the methods and goals of psychotherapy, particularly if the additional information clarifies the roles, rules, and responsibilities associated with therapy. As one example, a patient who 408

suffers with the signs and symptoms of obsessive– compulsive disorder needs to comprehend the theory of exposure as part of the informed consent process. When patients understand the rationale for exposure and the evidence supporting its effectiveness, they may be more motivated to comply with treatment, even if it involves some discomfort. At times, a psychologist may refuse to treat or may discharge patients who do not agree to reasonable treatment plans that match the clinical concerns expressed by the patient. A psychologist may, for example, refuse to treat a patient who will not take psychotropic agents, if medication is essential for a positive outcome. Persons and Mikami (2002) described a situation in which a psychotherapist refused to treat a family who would not agree to learn parent management skills to help their aggressive son; instead the family only wanted the child to participate in weekly individual psychotherapy. As part of informed consent and empowered collaboration, the psychologist needs to assess a patient’s willingness to engage in the therapy process in terms of internal factors, such as motivation for change, and external factors, such as the time for appointments and financial resources. Generally, effective therapy depends on cooperation and commitment by the patient. When patients appear ambivalent about receiving treatment, motivational interviewing is an appropriate strategy to mobilize the intrinsic desire for behavioral change. Using a collaborative style, this approach elicits patients’ motivations and helps them to consider costs and benefits of treatment as a means of reaching their goals. However, unless there are lifeendangering qualities, it is often better to provide no treatment than to provide treatment with little likelihood of success.

Quality-Enhancing Strategies Bennett et al. (2006) and Knapp and VandeCreek (2009) have identified patient-focused risk management strategies likely to increase the quality of services provided. These quality-enhancing strategies include (a) consultation on issues central to psychotherapy (relationship building, alliance repair, diagnostic and technical skills), (b) empowered collaboration (ensuring that the patient commits to the treatment program, which includes being forthright about their symptoms,

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weight loss. After several sessions, the patient showed substantial improvement and then revealed, after providing misinformation in earlier sessions, that she was engaging in rather significant eating disordered behavior, such as purging, using laxatives regularly, and exercising excessively. After discussing the complexity of the patient’s symptom pattern and the reasons for her difficulty in sharing this information during the beginning of psychotherapy, the psychologist sought consultation concerning the appropriate modification of the patient’s treatment plan. That is, the psychologist wondered whether she, given that she is not a specialist in eating disorders, should continue treatment or refer elsewhere.

adhering to treatment protocol, and discussing problems that may occur), (c) documentation (and the accompanying process of problem solving), and (d) redundant protections (getting additional sources of data from persons in the natural environment, such as family members and other health care providers, and from survey instruments or psychological tests). These strategies are linked to overarching moral principles of beneficence (seeking to improve the welfare of the patient), nonmaleficence (avoiding harm to the patient), or respect for patient decision making (see Table 15.1). The need to focus on these qualityenhancing strategy increases as the legal risks, patient complexity, or the risk of treatment failure increases.

Consultation Psychologists may consider consultation for several reasons, including the need to get more technical information, such as clarification of diagnostic issues, assistance in formulating treatment plans or types of clinical interventions, or identification of ways to strengthen the treatment relationship; to receive feedback as to their emotional response to the patient, such as current clinical stress level or reaction to patient behaviors; or to help them think through their own conceptualizations of the patient. Case Example 8 A patient presented with serious symptoms of anxiety and recent dramatic

In this example, the psychologist had developed a good relationship with the patient and already had helped her reduce her anxiety. However, if the patient had first presented herself with an eating disorder, this psychologist probably would have referred her to the well-respected eating disorder clinic in her community. The psychologist sought consultation to determine whether the benefits of transferring the patient outweighed the disadvantages. In this case, a respected psychologist with expertise in eating disorders suggested that the treating psychologist continue

TABLE 15.1 Strategies and Their Moral Foundations Strategy Informed consent Consultation

Documentation Redundant protections

How to show transparency Be as clear as possible about what you want to do together, how you propose doing it, and why. When seeking consultation, be honest with yourself about your strengths and limitations. The best way to receive accurate information about yourself is from others. Be accurate, honest, and diplomatic in documentation. Be clear as to the purpose of the redundant strategy.

Overarching moral foundation Respect for patient autonomy and decision making Beneficence

Beneficence Beneficence, nonmaleficence

Note. From “Risk Management for Mental Health Professionals,” by S. Knapp and L. VandeCreek, in Innovations in Clinical Practice: 21st-Century Perspectives (p. 191), edited by J. Wolf, E. Allen, and L. VandeCreek, 2009, Sarasota, FL: Professional Resource Press. Copyright 2009 by Professional Resource Press. Adapted with permission. 409

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with the case given the good rapport and results to date but that they confer periodically to ensure that the progress continues. Sometimes consultations may be more effective if psychologists document ahead of time the issues to be discussed. The process of framing the issue may clarify the issues to be addressed. Consultation also may be sought concerning the quality of the therapeutic alliance, which correlates with successful outcomes across a variety of treatment modalities (Castonguay, Constantino, & Holtforth, 2006). With high-risk patients, because early alliance predicts later treatment outcomes, the treating psychologist needs to pay special attention to the therapeutic alliance near the beginning of treatment. Castonguay et al. (2006) explained, Although most therapists feel that they are generally able to judge accurately the quality of the relationship that they have with their clients, evidence suggests that client and therapist views of alliance diverge … and that the client’s perspective tends to be more predictive of outcome. (p. 273) Therefore, eliciting feedback from the patients concerning their perceptions of the treatment alliance may be indicated. The therapeutic alliance may fluctuate during treatment, and psychologists need to be attuned to the possibility of an alliance rupture or a significant deterioration in the quality of the treatment alliance. With high-risk patients, ruptures can occur by momentary inattentiveness to patient needs, mistimed interventions, misunderstandings of the patient’s treatment goals, or other reasons. Therapeutic ruptures can predict treatment failure unless efforts are made to repair the rupture (Strauss et al., 2006). Signs of therapeutic rupture can take many forms. Some treatment ruptures are obvious, such as when patients openly disagree about treatment goals or make hostile and critical comments. Other, more subtle, signs of disruption occur when patients avoid certain topics, regularly show up late for appointments, or “forget” the content of prior therapy sessions. Once psychologists note the possibility of a therapeutic rupture, they need to analyze what events, 410

behaviors, or words led up to the breakdown in the relationship. The psychologist should speak to the patient about the behaviors or communications that may represent a potential therapeutic rupture. The psychologist must work with the patient’s perceptions of the relationship and with the problems he or she sees with the therapeutic relationship. Resolution of the therapeutic rupture is necessary but, depending on the unique circumstances of the patient and psychologist, may not always be possible. Ideally, repairing the alliance rupture may provide a corrective emotional or behavioral experience that may serve as a template for functioning more successfully with future interpersonal difficulties. Case Example 9 A psychologist met with a patient who originally presented with moderate symptoms of depression and narcissistic personality traits. His wife, a social worker, pressured him into treatment, and he arrived with a letter from his wife outlining her concerns that mainly focused on his depressive symptoms. After eight sessions of treatment, the patient reported some modest improvement with his depression. The psychologist asked about having his wife participate in therapy as an adjunct. The patient declined because he admitted to significant marital strain. A week later, the wife wrote an extensive e-mail about the patient that highlighted narcissistic personality issues, significant marijuana use, and use of Internet pornography. The initial reaction of the psychologist was to feel annoyed (or mildly angry) at the apparent lack of honesty from the patient or his wife. However, this self-aware psychologist knew that he could benefit from consultation on how to handle this delicate situation. Before getting consultation, the psychologist wrote down his concerns (how to handle the unsolicited e-mail without undercutting the trust of his patient and how, if it all, the marital relationship should be part of therapy). The consultant suggested that the psychologist present the letter to the patient in a manner that balanced respect for the patient’s

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control over the goals of therapy with concern over the possible dangers if the patient actually were abusing drugs. If the letter were presented in manner that the patient interpreted as accusatory, it could result in the patient becoming defensive or dropping out of therapy. Consequently, the treating psychologist presented the e-mail in session, explained that the wife sent it unexpectedly, and asked the patient for feedback about how to use the letter. Although the patient initially became guarded and questioned the process of therapy, the psychologist reiterated that psychotherapy is aimed at meeting the patient’s needs, as determined by him, and the letter would be handled as he wished. However, the psychologist ensured that the patient understood the standards for evaluating drug abuse, what constitutes drug abuse, the harm that can come from drug abuse, how marijuana smoking could be a form of selfmedication for anxiety, and how individuals who abuse marijuana or other drugs may not recognize the impact on themselves or others. The patient then angrily addressed the issues in the letter and denied that his marijuana smoking had a negative influence on his life and his mental health. He admitted to the occasional use of Internet pornography, but he explained that he used the pornography because his wife was emotionally cold. The patient again declined an offer to have his wife participate as an additional part of treatment. The psychologist and patient agreed to focus on his depressive symptoms, work stressors, and substance use. After six more sessions, the patient reported that he felt like he had made enough progress to end therapy, having reduced the symptoms of depression but not having resolved all the issues in his life. The patient agreed to contemplate marital therapy and agreed to call if he should wish for more services. The psychologist did not believe that the marijuana issue had been addressed adequately and strongly urged the patient to continue treatment for that issue.

Empowered Collaboration Informed consent is based on the overarching ethical principle of respect for autonomous patient decision making. We have noted the importance of

being especially conscientious about ensuring informed consent procedures with patients who are at a high risk for failure. That is, psychologists should be especially certain that these patients understand the conditions, processes, and requirements of effective therapy. Empowered collaboration builds on informed consent and attempts to maximize patient involvement in all essential elements of treatment. These extra steps in the informed consent process may be especially important for high-risk patients who may not invest in therapy as easily as other patients. Consequently, psychologists need to be particularly careful to encourage continuous patient involvement in defining the problem and recommending steps for its solutions. Like informed consent, empowered collaboration is an ongoing process whereby the psychologist needs to continue monitor and motivate patient involvement in the development and implementation of the treatment plan. Showing respect for patient decision making is related to improved outcomes, in part, because maximizing patient participation in the decision-making process facilitates patient ownership of and commitment to treatment goals. Patients who are actively involved in the treatment process are more likely to share information willingly, invest in the treatment relationship, and make efforts to reach the goals that they identify. Empowered collaboration is even more important in forensic cases, in cases where the patient is being treated in response to a court order, and when some type of written report will be made to the court or probation officer. In those cases, the patient may not be in treatment voluntarily. Nonetheless, the psychologist can carefully review the goals of the therapy and solicit patient input about how to meet those goals. Although the court may have its own goals for therapy, the psychotherapist can attempt to maximize patient involvement in treatment as much as feasible. In addition, as long as the goals are not incompatible with the goals of the court, a psychologist may encourage the patient to select additional goals. Empowered collaboration may mean that, except in court-ordered therapy, the goals of the patient will take prominence, even 411

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when third parties attempt to intrude into the treatment relationship. Case Example 10 A psychologist had an initial interview with a young woman with depression who expressed great appreciation for the benefits of the consultation, even though it was primarily a routine intake. After the first session, the psychologist received an emergency phone call from the patient’s live-in boyfriend, who reported that she had lied to the psychologist, was not doing well, was cutting herself, and flew into rage at the slightest provocation. Before discussing the case with the boyfriend, the psychologist clarified that all information in therapy is confidential, and he was only taking the phone call because of its alleged emergency nature. The psychologist, who was careful about maintaining a healthy alliance with the patient, refused to honor the boyfriend’s request that he promise to keep their conversation confidential. At the next session, the psychologist related the phone call to the patient in the kindest way possible. Given the information that was in the phone call, the psychologist considered this an opportunity to revisit the goals and methods of therapy. As part of this process, the psychologist talked to his patient about the need for honest self-assessment and self-disclosure, which can be very difficult when discussing sensitive issues, and reviewed the nature of confidentiality. The phone call also provided an opening to explore the possibility of having the live-in boyfriend work with them as an adjunct to therapy. However, no decision about the nature or direction of therapy was made unilaterally; all decisions were made together and cooperatively, consistent with the spirit of empowered collaboration. Because of the nature of this event, a question arose for the psychologist about whether the enthusiasm and praise he received at the end of the first session would be accompanied by equally intense anger if he did not respond in therapy the way the patient wanted. The clinical information related to

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the phone call and how that information was used by the psychologist elicited diagnostic and clinical information that may not have been revealed until later in therapy because the patient had not reported some of the symptoms and behaviors that the boyfriend had. The data from the phone call and subsequent interaction raised the possibility for the need to consider dialectical behavior therapy or another specialized form of treatment. Nonetheless, this clinical information probably would have emerged sooner or later. Of greatest importance, the psychologist used the information in a collaborative manner, which ultimately was more important than the content of the disclosures. A collaborative plan functions as a map for therapy. If a patient expresses discontent, serious concerns, or an unwillingness to follow the treatment plan, then the psychologist needs to reconsider the plan seriously, the methods used to develop it, and the manner in which the plan was outlined. To guard against a therapeutic rupture, the psychologist may make additional efforts to explain the treatment plan procedures or elicit feedback from the patient related to his or her concerns.

Documentation Documentation is a legal requirement and a risk management strategy to the extent that it is an important source of defense in the event of legal or ethical challenges to the conduct of the psychologist during the course of delivering services. (More information on risk management can be found in Chapter 19 of this volume.) Foremost, however, it is a procedure designed to promote patient welfare. In addition to the obvious value of reminding the psychologist of the past events in treatment, the psychologist and patient can use documentation to monitor and record progress. Treatment notes can be supplemented through weekly behavior charts, homework assignments, or relevant journal entries. Often brief clinical instruments can measure baseline symptoms and be repeated to measure progress. The quality of documentation should increase as the complexity of the treatment increases. Often, it is desirable for psychotherapy notes to reflect the problem-solving strategies of the psychologist.

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For example, if a patient is showing life-endangering qualities and hospitalization is being considered, then it is desirable for the notes to reflect the advantages of hospitalization, the disadvantages, and the rationale on how the final decision was made. Although some patients may not benefit from reviewing progress from the initiation of treatment to their current status, high-risk patients, especially those who may terminate prematurely, might benefit from reviewing progress in treatment. Some patients may feel discouraged and hopeless about their situations, but the psychologist may use the record of their progress to engender sufficient hope and motivation to help them continue even during the most difficult parts psychotherapy. If psychologists work with long-term patients, a regular review of treatment plans is recommended. They may want to develop their own standard interval, such as every 20 sessions, as a personal practice guideline to review treatment goals and methods, ideally involving the patient in the review. Case Example 11 A prospective patient told a psychologist that he would come to treatment only if the psychologist promised never to take any notes of his treatment. He would pay in cash at every session. The fact that documenting and maintaining notes is a legal requirement appears, at first, to give the psychologist no choice but to decline this patient. However, before a treatment relationship begins, the psychologist may be able to discern the reasons the prospective patient does not want notes recorded. In this case, the patient was involved in litigation and feared for his privacy. The psychologist explained the extent of, and limits to, confidentiality and encouraged this patient to speak to his attorney about the likelihood that these psychotherapy records could end up in litigation. Additionally, the psychologist could review the treatment notes with the patient as part of the therapy process, using the minimum legal requirements as a guideline and seeking agreement as to what information will be both necessary and beneficial to the patient. This strategy helps the patient by meeting his needs

and respecting his autonomy. Additionally, this approach also helps the psychologist meet his legal and ethical obligations. We would not recommend working with a patient without treatment notes. The risks far outweigh the benefits, and there are options to meet the patient’s needs and practice ethically.

Redundant Protections A redundant protection is any strategy used by the psychologist to get an additional perspective or source of information about a patient. Information from a collateral source, such as family member or trusted friend, can be a second source of high-value clinical information. Also, collaborating with the patient’s primary care physician or internist is another resource for clinical data. Through consultation with another psychologist, the treating psychologist obtains another perspective on the treatment relationship, which can be considered a redundant protection. Empowered collaboration also could be interpreted as a redundant protection to the extent that it facilitates greater sharing of information from the patient. With higher risk patients, redundant protections are often necessary to provide optimum care. For example, when treating a highly suicidal patient, the psychologist may need information or assistance from family members who see the patient on a daily basis. A psychologist can contact the prescribing professional to exchange information, case manage, and develop or reinforce a safety plan for the patient. Unless there are extenuating circumstances, the psychologist will need the patient’s consent for these contacts. Furthermore, the psychologist can use a brief suicide screening instrument before every session with such a high-risk patient. These screening instruments should not be relied on blindly or mechanically, and information obtained needs to be integrated with other sources of data on the patient. Nonetheless, they provide an additional source of information about the patient and may identify some patients who appear to be minimizing the extent of their depression and suicidal thinking. Finally, the psychologist can review the safety plan at the end of each session.

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Ideally, the information generated from redundant protections will alert the psychologist to his or her errors or misjudgments. Continuing with the example of the suicidal patient, the additional sources can provide a more complete picture of the patient and may assist in assessing the degree of danger or the success of interventions with the patient.

Transparency and Quality-Enhancing Strategies The general rule is to implement quality-enhancing strategies with as much transparency as possible. For example, psychologists generally should be open and honest about their thoughts, feelings, and actions that transpire in the therapy session. Similarly, the psychologist seeking consultation may need to disclose impressions or behaviors to colleagues that in retrospect were wrong. The psychologist will need to present all the relevant facets of the case, including errors in thinking and judgment, to engage fully and effectively with a consultation. As with other overarching ethical principles, psychologists need to balance transparency with other ethical principles, such as beneficence or nonmaleficence. Thus, in some situations, prudence dictates that psychologists withhold information, particularly if giving a full and complete description, at this time, likely would seriously harm a patient. At times, concern for patient welfare may require the psychologist to titrate the information or give out only as much as the patient can handle at any given time. CONCLUSION Psychotherapy is a multifaceted and complex process that can be emotionally and intellectually strenuous, especially when working with high-risk patients. This chapter has reviewed patient, contextual, and psychologist factors that increase the risk of treatment failure and has discussed strategies that can increase the likelihood of treatment success. Attention to these strategies can help psychologists reach their highest ethical ideals.

References Ackerly, G., Burnell, J., Holder, D., & Kurdek, L. (1988). Burnout among licensed psychologists. Professional 414

Psychology: Research and Practice, 19, 624–631. doi:10.1037/0735-7028.19.6.624 American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Castonguay, L., Constantino, M., & Holtforth, M. G. (2006). The working alliance: Where are we and where should we go? Psychotherapy: Theory, Research, Practice, Training, 43, 271–279. doi:10.1037/0033-3204.43.3.271 Hellman, I. D., Morrison, T., & Abramowitz, S. (1986). The stresses of psychotherapeutic work: A replication and extension. Journal of Clinical Psychology, 42, 197–205. doi:10.1002/1097-4679 (198601)42:1 3.0.CO;2-J Knapp, S., & VandeCreek, L. (2009). Risk management: A perspective based on ethical principles. In J. Wolf, E. Allen, & L. VandeCreek (Eds.), Innovations in clinical practice (pp. 189–200). Sarasota, FL: Professional Resource Press. Krupnick, J. L., Sotsky, S. M., Simmens, S., Moyer, J., Elkin, I., Watkins, J., & Pilkonis, A. (1996). The role of a therapeutic alliance in psychotherapy and pharmacotherapy outcome: Findings in the National Institute of Mental Health Treatment of depression collaborative research program. Journal of Consulting and Clinical Psychology, 64, 532–539. doi:10.1037/0022-006X.64.3.532 Lynch, T. R., Trost, W. T., Salsman, N., & Linehan, M. M. (2007). Dialectical behavior therapy for borderline personality disorder. Annual Review of Clinical Psychology, 3, 181–205. doi:10.1146/annurev. clinpsy.2.022305.095229 Manning, S. (2005). Dialectical behavior therapy of severe and chronic problems. In L. VandeCreek & T. Jackson (Eds.), Innovations in clinical practice: Focus on adults (pp. 97–114). Sarasota, FL: Professional Resource Press. Persons, J. B., & Mikami, A. Y. (2002). Strategies for handling treatment failure successfully. Psychotherapy: Theory, Research, Practice, Training, 39, 130–151. doi:10.1037/0033-3204.39.2.139 Stewart, R., & Chambliss, D. (2008). Treatment failures in private practice: How do psychologists proceed? Professional Psychology: Research and Practice, 39, 176–181. doi:10.1037/0735-7028. 39.2.176

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Strauss, J. L., Hayes, A., Johnson, S., Newman, C., Brown, G., Barber, J., . . . Beck, A. T. (2006). Early alliance, alliance ruptures, and symptom change in a nonrandomized trial of cognitive therapy for avoidant and obsessive–compulsive personality disorders. Journal of Consulting and Clinical Psychology, 74, 337–345. doi:10.1037/0022-006X.74.2.337

Yeomans, F., Clarkin, J. F., & Kernberg, O. (2002). A primer for transference focused psychotherapy for the borderline patient. Northvale, NJ: Jason Aronson. Young, J. E., Klosko, I., & Weishaar, M. E. (2003). Schema therapy: A practitioner’s guide. New York, NY: Guilford Press.

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CHAPTER 16

ETHICAL ISSUES AND THE BEGINNING AND END OF THERAPY Jeffrey N. Younggren and Denise D. Davis

Therapists have a fundamental responsibility to clarify the boundaries of the relationship with their clients. Two of the most important boundaries are the beginning and ending of therapy. (Pope & Vasquez, 2007, p. 117) To say that over the past 20 years psychology has become overly “rule laden” could truly be seen by some as a gross understatement. Ethics publications and guidance clutter the landscape of professional psychology. Across mental health professions, there are multiple codes, each prescribing its own list of ethical requirements for related professions, lists that differ somewhat in philosophy, design, and content. In addition, differing and even contradictory laws have been passed at the state and national level that have specified conduct required of those who deliver mental health services to the public. To make matters even more complex, ethics and risk management training opportunities are everywhere and frequently are required as a part of licensure or renewal. Finally, all of this has nestled itself on top of an evolving system of health care that requires efficient, cost-effective treatment that is subject to an oversight system, (e.g., the explicit regulations found it the Medicare audit system to determine whether treatment is clinically necessary). The consequence of this regulatory proliferation has been that many mental health professionals now focus on adhering to rules and regulations, losing sight of the principles that dictate the flow of ethical conduct and the relationship that exists between the two. For some, this means they do not utilize ethical

decision making when confronted with confusing ethical dilemmas (Bennett, Bricklin, Harris, Knapp, VandeCreek, & Younggren, 2006; Younggren & Gottlieb, 2004). Reliance on rule-governed behavior can distract the psychotherapist from the crucial task of integrating personal and professional moral values in the functional context of decisions and judgments that occur in everyday practice. On the other hand, when psychotherapists practice a thoughtful ongoing awareness of the foundational ethical principles and reflect on the relationship with their own moral values, attitudes, and expectations concerning psychotherapy, they are better prepared to anticipate potential dilemmas, respond effectively, and minimize harm (Handelsman, Gottlieb, & Knapp, 2005). We believe that the proliferation of laws, codes, rules, and guidelines calls for a corresponding balance of reflection on the principles and virtues that undergird one’s ability to develop a reasoned course of action in support of ethical aspirations, beyond technical obedience to minimum standards. It is because of this state of affairs that we begin this discussion of ethical issues at the beginning and end of therapy with a discussion of how these points on the continuum of every psychotherapy relationship are tied to moral ethical principles, virtues, and philosophy.

The opinions are those of the authors and do not represent those of any organization with which they are affiliated. DOI: 10.1037/13271-016 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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If we use an image of opening and closing a door as a metaphor for these two most important boundaries of therapy, then we also want to think deeply about opening the door cautiously and closing it softly. The moral principles that are the foundation of all ethical codes in health care can be found in the seminal work of Beauchamp and Childress (2009). In the sixth edition of their book Principles of Biomedical Ethics, these authors argued that the four “general norms” or principles of biomedical ethics are respect for autonomy, nonmaleficence, beneficence, and justice, an approach that is also referred to as principlism (Beauchamp & Childress, 2009, p. 25). In addition to this basic foundation, these authors argue that there is a subset of more specific rules that encompass patient–professional relationships that include concepts like veracity, privacy, confidentiality, and fidelity—all of which interrelate with the principles. The message that emanates from the application of each of these principles should be evident in the conduct of professionals in the treatment of their clients throughout the delivery of service: from beginning to end. We contend that beginning and ending psychotherapy are not separate phases or components of therapy but are actually part of a continuum that requires professionals to adopt a longitudinal view of therapy that ties the various phases of treatment together. Evolving standards of care and service delivery requirements increasingly reflect this philosophy, prompting mental health professionals to conceptualize therapy as a coherent process instead of discrete chunks with differing problems and requirements. For example, many regulatory bodies and third-party payers are now requiring evidence of organized treatment plans at the outset of a psychotherapy relationship. The expectation here is that these plans will identify what problems are to be treated, what sort of treatment will be used and for what purpose, the risks and benefits of that treatment, and its projected length. Psychologists can avoid or mitigate many common problems at the end of therapy by anticipating and addressing such issues at the outset. Although this task is somewhat daunting, the truth is that these existing and evolving requirements are wrapped around the aforementioned moral principles. 418

At the outset of care, respect for client autonomy is the principle that sets the course of what is to follow. Autonomy stipulates that the consumer of health care services has a right to choose without coercion the course of their treatment after they have been fully apprised of its risks and benefits. The spirit of autonomy is evident throughout the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) and lives in every Health Insurance Portability and Accountability Act (HIPAA)–based notice and informed consent form that is signed by a client. But what does autonomy really require, just how much autonomy does a client have, and how much respect for autonomy must the treating psychologist demonstrate at the beginning of therapy and throughout the professional relationship to fulfill the spirit of this principle? These are heady questions that require a brief discussion of philosophy and morality. (More on informed consent can be found in Chapter 12 of this volume.) According to Beauchamp and Childress (2009), autonomy requires that health care professionals “respect a particular person’s autonomous choices, whatever they may be. Respect for autonomy is not a mere ideal in health care; it is a professional obligation. Autonomous choice is a right—not a duty—of patients” (p. 107). This means that therapists must tell clients everything that they need to know to make an informed decision about entering into a professional relationship with a psychologist. It is informed consent. Informed consent is actually evidence of autonomy in action and is the client’s expressed and legal authorization to participate in an intervention. This consent is given on the basis of a foundation of understanding of what that intervention is and that the client consents freely, in the absence of the influence of others. What is not completely evident in this discussion is that the fulfillment of the principle of autonomy in health care through the execution of the thorough and detailed informed consent process not only protects the freedom of the client but also serves the psychologist. This protection occurs primarily because the consent outlines the planned course of therapy

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(beneficence) and identifies the professional’s obligations to the client (justice, fidelity, confidentiality, and privacy), and it clarifies how these concepts are tied to the client’s obligations to the professional. The informed consent process controls how treatment begins, specifies where it should and should not go (nonmaleficence), and explains how it ends. It places the value on making sure that the client understands just what is about to happen; the rules of the relationship; its limitations (justice), if any; and its purpose. Good informed consent recognizes that there is an endpoint of therapy and explains the processes by which that endpoint is reached. Respect for autonomy also means understanding that informed consent is a process of sharing pertinent information throughout the treatment relationship; it is not a single task that occurs only at the outset of treatment. This process is continuous, involves constant monitoring by psychologist and client, and includes clarification of any changes in the treatment regarding process, direction, or end (Pope & Vasquez, 2007). This means that any time the direction of psychotherapy changes, the contract between therapist and client also shifts, prompting a need to reorganize goals and establish consent to the redirection. Any redirection of psychotherapy still should tie the beginning of treatment to the end and usually requires a discussion of some type of a defined endpoint to foster the client’s autonomy in treatment participation. ETHICAL ISSUES AT THE OUTSET OF TREATMENT Many individuals have little or no understanding of what to expect when they enter psychotherapy or psychological assessment. Their defenses may be up, and their attitudes about psychologists and psychological services are at times wrapped around common misconceptions held by friends, society, and the media. In fact, their beliefs about psychotherapy might be quite negatively distorted. Conversely, people who previously have been in treatment also enter a new therapy relationship with their own set of unique attitudes. Their expectations of this new relationship are influenced by the nature and the outcome of their previous experience. Finally,

acutely distressed individuals may enter therapy with few defenses, a great deal of pain, and limited ability to discriminate the appropriateness of the match or the potential effectiveness of the treatment. Psychologists must address this attitude set at the outset of the treatment alliance, while also remaining thoughtful about how their own values, motives, and beliefs about good psychotherapy can affect the client’s autonomy. Because of the many ethical issues that converge at the point of entering into therapy, we contend that taking time early on to discuss termination issues and termination planning can go a long way toward correcting distorted attitudes and expectations about psychotherapy and psychotherapists and can create an ethically sound framework for the working relationship. A responsible psychotherapist takes the initiative in educating the client on how psychotherapy ends and what criteria might be used to establish progress (Rice & Follette, 2003). A carefully crafted informed consent form combined with open conversations with the client throughout therapy is vital to establish the parameters of the treatment game board, the rules of the game, and even potential violations in play. To be consistent with the spirit of Beauchamp and Childress (2009), just what information should be included in an informed consent without overwhelming the client with a large amount of written material that is only cursorily reviewed and marginally understood? What is the minimal information necessary to fulfill the moral and ethical obligations of the psychologist at the outset of treatment? We believe that the following questions should be clearly answered when psychotherapy begins or is redirected because any one of these matters could significantly affect the decision on whether a particular therapeutic agreement should continue or terminate: 1. 2. 3. 4. 5.

Who is the client? How are my fees handled? What are the confidentiality and privacy rules? What is my role? How do I describe my practice?

Who Is the Client? Defining who is a client and when a person becomes a client can be quite perplexing. From a legal 419

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perspective, this is extremely important because when this type of relationship is established, it carries with it a duty on the part of the professional to care for that person in some way. But when does that duty start and what actually is that duty? These are critical and possibly vexing questions that every therapist must understand before beginning treatment. Psychotherapy is not a simple social relationship of equity between parties. It is, in fact, a special fiduciary relationship that places significant and complex moral and legal duties directly on the shoulder of the psychologist. Duty is not an all-or-nothing concept, and it does not develop in an abrupt fashion. When a treating professional makes his or her first contact with a prospective client, the duty of care begins to develop. However the term care takes on a different meaning at this point. Here the term does not mean that the professional must treat this individual, but rather that there is some obligation to do something. Underlying compassion for the expressed need that such an inquiry represents likely will prompt psychotherapists to attempt to understand and accommodate the client’s needs. But what if the psychologists do not have time to accommodate a referral from another professional or the referral is otherwise incompatible with their practice? In this case, that “something” could be as simple as telling the client that the requested service is not in their specialty or that they do not have space in their practice for another client at this time and suggesting another clinic, professional, or referral resource such as an insurance network. It is possible to even send the caller to the emergency room if the expressed concerns are urgent. Legal issues aside, doing these types of things represents a commitment to the principle of justice and an effort to facilitate access to treatment for all persons who need it, rather than simply ignoring the inquiry, a potentially harmful action, albeit of minor proportion. Once these things are done, duty ends. As contact with a potential client increases in frequency, so too does the duty of care. Although duty at this point does not mandate treatment, multiple telephone contacts or initial evaluation sessions with a potential client can create a legal argument for increased responsibility to care for that person 420

by either treating them or referring them elsewhere. Once the client has begun to form an attachment, psychologists are more likely to feel ethically compelled to meet the client’s expectations for treatment, even if client problems are poorly matched to therapist skills, the potential for benefit is limited, or the client might be better served elsewhere. It is important to understand that professionals can ethically and legally discharge the duty for care of a client in many ways other than through treatment. The best example of this would be through referral to another individual who is better able to provide the services to the client. Duty of care still does not mean duty to treat, and one does not have to treat all referrals regardless of their source. If psychologists offer professional services to a potential client, then they must engage in a formal process of informed consent with that client. The most efficient and legally defensible way to accomplish this requirement is through the use of a detailed and signed informed consent contract. Every informed consent form must clarify at the outset of therapy exactly who is the identified client. This may seem to be a simple task at first glance, but the complexity of this issue can increase exponentially when more than one individual participates in treatment. For example, parents attending a session or two for their minor child may believe that they are the psychologist’s clients, whereas the psychologist sees them as collaterals to the minor’s treatment with the minor being the client. (More information about treating minors can be found in Volume 2, Chapter 1, this handbook.) Or, conversely, parents may not see themselves as clients of the psychologist when the psychologist is doing family therapy, whereas the psychologist believes they are. (More information about multiperson therapy can be found in Volume 2, Chapter 3, this handbook.) Couples therapy clients may not understand that the couple is the client and how this affects the rules regarding their individual access to treatment records. How about a friend who comes to one session with the client? Is that person a client? Does the psychologist have a duty to person? What is that duty? All of these questions must and can be clearly answered at the outset of any professional contact. Thus, it may be

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useful to have specific consent contracts designed for couples, parents of a minor child, or collateral participants in which the client designation and limits of confidentiality are explained. With reasonably foreseeable questions such as these, it is really necessary and vastly easier to think through some of the more common challenges in advance and to be prepared with an ethically grounded plan of action. Matters regarding who the client is only become more complex when a choice is made to bill services under an identified patient. Because reimbursement policies may require listing a single individual as the identified patient, this frequently does not identify who the client is legally or ethically. For example, in couples therapy, when a benefit does pay for marital therapy with a V Code reimbursement benefit, the fact that a single member of the couple is required to be listed as the client does not change the reality that (in most states) it is the couple who is the client, a fact that has significant implications for confidentiality. Neglecting to clarify the identified client at the outset of the professional relationship can lead to very serious clinical and legal problems. Failure to identify the client at the outset of treatment affects confidentiality most of all. Unless the client is a minor, it is almost always only the client who can consent to the release of treatment information. For example, in the case of couples therapy, specifying at the outset of the professional relationship that the clinical information cannot go anywhere without the joint consent of both parties—because the couple usually is the client— will very much avoid attempts by either member of the couple to utilize the record for other purposes. As an aside, this requirement is consistent with the confidentiality regulations of almost all states. In the case of minors, specifying at the outset who the client is and what the confidentiality limitations are clarifies for the parents exactly what their role is and what access they will have to the minor’s record. Finally, if a collateral attends therapy at the request of the client, specifying how the information will be used, where it is kept, and where it can go at the outset of the professional relationship will avoid any confusion about how that information will and can be used later on.

How Are My Fees Handled? Financial matters can become serious problems in psychotherapy when neglected or mishandled. On the other hand, straightforward and consistent attention to financial matters is consistent with the fiduciary responsibility of the psychotherapist and demonstrates respect for underlying principles of beneficence, nonmaleficence, autonomy, and justice. At the outset of treatment, psychologists must address and clarify these matters with every client and apprise the client of potential implications for nonpayment of fees, including possible termination. How fees are to be paid, whether the client has or wishes to use insurance benefits, and how insurance billing will be done also must be clarified. Psychologists must define their relationship with an insurance carrier and explain who is responsible for deductibles, copayments, and any unpaid balances if payment is denied. Although the existence of managed care contracts might remove the client from responsibility for unpaid balances, the opposite is true if psychologists are submitting insurance claims as a matter of courtesy to the client. Finally, psychologists must communicate their policy for handling payment of fees and how nonpayment can trigger possible termination of care. Expectations for payment from the client, when and how, and the reality that continued treatment is based on remuneration for services should be stated explicitly. This section of the informed consent also should outline psychologists’ right to terminate the professional relationship if these conditions are not satisfied. Unique billing issues also must be addressed at the beginning of therapy because clients may enter treatment with a variety of unrealistic expectations about how billing will take place. Standard 6.04(a), under Fees and Financial Arrangements, reads, “As early as is feasible in a professional or scientific relationship, psychologists and recipients of psychological services reach an agreement specifying compensation and billing arrangements” (APA, 2010, p. 9). Prudent interpretation of this standard would encourage a proactive or peremptory discussion, to fully inform the client in support of autonomy and as a measure of protection from harm that might result from misunderstanding and unwanted debt accrual. For example, a divorced parent may expect the psychologist to bill the other parent for a child’s therapy because the 421

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divorce agreement outlines this as a condition of settlement. Although these are binding agreements between divorced parties, they are not binding on a psychologist who may, and perhaps should, have a policy that the parent bringing the child to therapy is responsible for paying the bill. Difficult as it may be, bringing this up at the outset of the professional relationship can avoid later confusion and minimize the psychologist’s collusion with potentially manipulative or exploitive behavior on the part of one or both parents. Clients also need to be apprised of the way information will be shared with the insurance company for the reimbursement of services and be informed of their right to limit the amount of information that is shared with the company. If they are going to place limitations on this information, they also need to know how this might affect reimbursement rates and who ultimately will be responsible for the professional fees. This is but another example of where action early on is directly relevant to the client’s right to autonomy and freedom from preventable harm. Finally, if the benefit available to a client is likely to be limited, like that coming from a managed care company, psychologists should discuss this with the client at the outset of treatment, as stipulated in Standard 6.04(d), which reads, “If limitations to services can be anticipated because of limitations in financing, this is discussed with the recipient of services as early as is feasible” (APA, 2010, p. 9). It is here that the anticipated endpoint of treatment begins to take on clarity because of existing reimbursement limitations. This matter can become quite sensitive because insurance companies may not be pleased with any discussion regarding the limitations of their policies, but a client’s right to autonomous consent is more important here, and clients need this information to adjust their expectations for the contract with their psychotherapist. In addition, a discussion of limited benefits and potential termination points helps to reduce confusion about when and why termination will occur.

beginning treatment. Basic principles of confidentiality should be expressly outlined in the treatment contract with the primary exceptions also listed. This document should outline mandated reporting responsibilities and any duties that are required by state law. For example, if a respective state law requires action on the part of a psychologist when dealing with an expressed intent to harm an identified individual, this should be stated clearly. However, if there is no duty to report and the state law is permissive, the options the psychologist may choose to follow should this occur also must be clarified. One of the unique strengths of informed consent is that psychologists can create special contracts with their clients regarding confidentiality. For example, if a psychologist wants the option of notifying family members if the client is deemed to be dangerous to self or others, including this policy as part of the signed informed consent process allows the psychologist to do this. In addition, if a child therapist wants to limit parental access to treatment records to summaries to preserve a child’s privacy rights, having the parents sign an agreement outlining this policy creates a strong legal argument that the policy is enforceable until parents terminate the agreement (APA Insurance Trust, 2011). Agreements like this arguably become contracts between therapist and client, further clarifying for the client the rules for the treatment relationship. In addition, although not entirely comprehensive, they place the treatment relationship on a clearly understood and hopefully agreed-on foundation from the very beginning of the treatment alliance. That said, and signed contracts aside, nothing exceeds the value of sitting down with all parties, to include the child or adolescent, and outlining the nature of how information will be used and who will have access to it. This type of openness can only serve to enhance the value of the treatment alliance and avoids any future statements like, “I did not understand what I was signing.”

What Is My Role? What Are the Confidentiality and Privacy Rules? Informed consent requires that the psychologist outline issues of confidentiality and privacy before 422

Conflicting roles can be quite problematic to the therapy process (Greenberg & Shuman, 1997). Wise psychologists are alert to potential conflicts in roles or relationships and attempt to address them at the

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outset of treatment, even though there is already much to be remembered at this point in the treatment process. Opening the therapeutic door cautiously is especially important if there might be conflicts between forensic and treatment roles. Because many clients are unfamiliar with the role conflicts that exist for psychologists and how these conflicts can affect things like confidentiality, psychologists must explain their stance with regard to participation in forensic concerns and attempt to correct any misconceptions. This explanation should include any limitations regarding willingness to participate in legal proceedings and the potential impact of these types of requests on privilege. This is especially important when the referral source is an attorney who does not understand the importance of these role distinctions. A common example of this type of conflict occurs when a client wants a psychologist to prepare a document for his or her attorney, a request that rarely has anything to do with therapy. Although it is impossible to outline every potential conflict in an informed consent document, a general statement regarding what a therapist is and is not willing to do can be quite helpful. In addition, therapists should consider outlining the costs for services that occur outside of the treatment session and include this in their informed consent form. Other potential role conflicts are important to anticipate. For example if the psychologist is serving only in an evaluative role, any change in that role to perhaps a treatment role should be discussed in the informed consent form explicitly. Although some role transitions may be quite acceptable, the shifts should be identified and the impact of the shift needs to be understood by all parties, including how it affects the original role. A good example of this can be found in disability claims and certification of disability. A psychologist might begin treatment of a person with an emotional disability and, as a consequence, complete the paperwork necessary to retire that person from work and obtain temporary disability subsidies. The psychologist then thinks through the impact of continuing psychotherapy with this client and clearly explains any limitations or constraints on his or her willingness to continue certifying disability in the future. When issues arise about continued disability,

both the psychologist and the client should consider separating the evaluative role and the treatment role by referring the case to another mental health professional to complete the disability assessment outside of the treatment context.

How Do I Describe My Practice? Adequate informed consent includes written information and discussion of the psychologist’s practice policies and clinical approach. Written statements (including websites and directory listings) can be developed through thoughtful consideration of what information best supports and enables prospective clients to effectively choose an appropriate treatment match. The informed consent exchange should include a statement concerning how emergencies are handled and some guidance on what constitutes a true emergency. Psychologists also should outline their policy on returning phone calls and responding to e-mails. It is through such exchange of information about how the psychologist conducts practice that psychologists and their clients know whether there is a match between client expectations, the clinical picture, and the adequacy of resources available. If a psychologist has a limited practice and is not available for after-hours emergencies or phone calls, then these parameters must stipulated in the earliest stages of the clinical relationship. Before beginning treatment with anyone, psychologists should ask whether their availability matches the intensity of care needed by the client. If the answer to this question is no, then they have the duty to explore what options might be available for either augmenting their services or redirecting these clients to possibly more appropriate alternatives. For example, currently emotionally unstable clients who have limited skills for self-regulation usually are best matched with psychologists who have specific supports in place for handling after-hours contacts. Informed consent processes allow psychologists to begin to define client duties within the treatment contract. Although duty frequently is seen as a onesided concept in health care, that of provider to consumer, it is not. Clients have duty to the treatment relationship, and it is at the outset of the treatment relationship that these expectations begin to emerge. As might be consistent with specific treatment models, an adequate informed consent process outlines 423

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expectations of the client with regard to attendance at treatment sessions, fulfillment of homework assignments, or active participation requirements and cooperation with the intervention. Obtaining this type of commitment to treatment from the client has been associated with more effective change and problem resolution (Jobes & Schneidman, 2006) and increases the likelihood of a mutually agreeable termination. ETHICAL ISSUES AT THE END OF TREATMENT Few areas of professional practice are filled with as much confusion and as many myths as the rules for ending psychotherapy. Myths such as “once a client, always a client” have perpetuated inaccurate rules that stipulate psychotherapists are not allowed to terminate therapy or that psychotherapy must continue until clients spontaneously indicate readiness to terminate. These rules make it difficult to deal with practical realities or equally important ethical considerations that favor ending therapy (Davis, 2008). One of the more pernicious myths about psychotherapy termination (Davis, 2008) is that continued and even intensified contact is the best and only way to resolve an unproductive or ruptured alliance. Although the resolution of alliance ruptures within a continuing relationship can be an important therapeutic experience, it is also possible that resolution through termination might be appropriate and the most therapeutic alternative possible. Ending therapy is a great concern for psychologists because of common fears that if done improperly, they could be exposed to civil and disciplinary action for the wrongful termination or abandonment of their clients. This fear persists in spite of the reality that civil and disciplinary actions in this area are actually quite rare (Younggren & Gottlieb, 2008). Psychologists also worry about continued duty to clients and how this intersects with fiduciary responsibilities and termination obligations. Or they hold more vaguely grounded judgments that termination for any reason other than significant improvement and mutually satisfactory completion of treatment is somehow wrong. Sometimes psychologists’ worries focus on potential harm to 424

clients’ self-esteem and sense of hope, without due consideration of the possible benefits that might be associated with ending therapy even if problems are not optimally resolved. As a consequence, many professionals avoid the whole issue of termination in their therapies, or they deal ineffectively with the need to terminate when it is appropriate. In the most dangerous cases, some even turn over the control of ending therapy to the client, relinquishing many of their professional responsibilities in the process. Only recently has guidance on this topic begun to integrate the Ethics Code with current standards of care (Davis, 2008; Davis & Younggren, 2009; Younggren & Gottlieb, 2008). Therapists who find themselves confused over termination issues can start their search for guidance with the Ethics Code. The primary sections relevant to termination and abandonment are found in Standard 10.10, Terminating Therapy, which reads, (a) Psychologists terminate therapy when it becomes reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service. (b) Psychologists may terminate therapy when threatened or otherwise endangered by the client/patient or another person with whom the client/patient has a relationship. (c) Except where precluded by the actions of clients/patients or third-party payors, prior to termination psychologists provide pretermination counseling and suggest alternative service providers as appropriate. (APA, 2010, p. 13) In reality, psychologists may end their relationships with their clients by mutual agreement, clientinitiated termination, or therapist-initiated termination. Each of these methods is quite different and each has different ethical requirements and related risks.

Termination by Mutual Agreement Termination by mutual agreement is logically the ideal outcome of a successful therapeutic alliance. It occurs when both the therapist and client agree to

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end treatment because either the treatment goals have been achieved or the requirements or limitations of the therapeutic contract have been accomplished. It is important to recognize that these are very different circumstances that warrant separate discussion (Davis, 2008; Younggren & Gottlieb, 2008). When treatment has reached the point that the value of continued visits is unclear or when the goals outlined in the original contract have been achieved, one of two things must occur: Psychotherapy must end, or client and psychologist must recontract for a continuation of the therapy specifying new goals for continued visits. If psychotherapy is effectively organized at the outset of treatment to include a discussion of possible endpoints, and with termination discussed at various points throughout treatment, ending should come as no surprise to either party. Both client and psychotherapist will be aware of the approach of the endpoint, will have discussed it, and will be in some way prepared for it. It is through this process that the beginning of successful psychotherapy is tied to the end and to the philosophy that the goal of psychotherapy is to end psychotherapy—or perhaps better said, to no longer need it. Both parties recognize that the treatment is ending and are satisfied with their mutual decision to end the professional relationship. This, of course, does not mean that a client could not reestablish a professional relationship with the same psychologist at some future date for other issues. It also does not obligate the psychologist to reestablish the professional relationship on demand. There are circumstances in which therapy can be ended agreeably even though the original goals have not been accomplished. For example, psychologists and clients might agree at the outset that therapy will end when insurance coverage is terminated or exhausted. Although psychologists have the option to reduce fees to continue therapy beyond the insurance benefit limits, or to see clients pro bono, this is simply not an ethical requirement. It also is not feasible as a routine procedure for every insured client, due to realistic business considerations, because the psychologist must somehow absorb the impact of this lost revenue. Psychologists would be well advised to think through their attitudes about reduced fees and

pro bono services as a matter of policy rather than dealing with this issue at a time of sympathy for a specific client. This allows them to more objectively evaluate and better define their attitudes about social justice and avoid swinging between the extremes of believing they have to treat everyone who cannot pay and rejecting everyone who is in need. Once this option has been given to one client, a further ethical dilemma arises in determining who else might receive services that are subsidized by the therapist. If subsidy is being offered, the therapist has to determine how to fairly choose among potential candidates; examine what biases, if any may, affect these choices; and decide whether also to extend this policy to any other incoming clients. The principle of justice implies that any client should have access to similar opportunities without bias or favoritism. So, simply reducing fees or working pro bono is actually not quite that simple because it demands justification of the fairness of differential charges. The reality of financial limitations must be addressed at the outset of the therapeutic relationship where, once again, the end of treatment is tied to the beginning and to reimbursement realities. It is here that psychologists also should discuss the limitations of managed care contracts and how these limitations relate to treatment goals and to ending therapy. If the psychologist is not a contracted provider within the client’s insurance network, as may often be the case, discussion should be directed toward helping the client to understand what this implies in terms of reimbursement and options for care. If the likelihood is small that the client’s goals can be accomplished because of reimbursement limitations, this should be clear at the outset of the treatment relationship so that (a) the proposed endpoint is modified; (b) a referral is made to an in-network provider; or (c) when the coverage endpoint is reached, it comes as no surprise to either party. Logically, if these kinds of limitations have not been anticipated, when problems with insurance reimbursement do arise, they must be dealt with as soon as possible. Once again, and let us emphasize, absent an emergency neither the Ethics Code nor any licensing law requires that psychologists continue treatment when reimbursement for services changes or ends. What is required is that these types 425

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of limitations and disruptions be anticipated, clarified, and dealt with by both psychologist and client when they occur and before any substantial unpaid balances accrue. The concept of psychologists’ duty to the client warrants further discussion at this point. When client and psychologist agree to end treatment because the goals for therapy have been achieved or when termination has been agreed on because of other issues, the treatment contract is over. Psychologists do not have to reestablish the treatment relationship upon client demand. Although some duties arguably do exist after termination occurs, like that to maintain records and provide client information on demand, the therapist does not remain at the beck and call of the client and does not have a duty to see the client for further sessions. Duty under this circumstance could be fulfilled in many different ways, such as referring the client to another psychotherapist or alternative provider or scheduling the client back into their practice when space becomes available. Therapy also can end by mutual agreement when the physical ability for continued visits ends. If the client moves out of the area or if the psychologist becomes unavailable or closes his or her practice, it is logically established that treatment cannot continue. Once again, the duty to the client is best discharged by a frank discussion of the realities raised by either of these changes and by the development of a mutually agreeable plan to deal effectively with the implications. This might include locating and referring the client to another psychotherapist who is both appropriate and available if needed. It generally discourages attempts to approximate ongoing therapy via telephone, e-mail, or other truncated communications or through quasi-social substitutes such as ad hoc meetings at a coffee shop. Psychologists are not obligated to continue therapy through such efforts in the event that the client rejects or resists transferring to a new therapist. Their duty is discharged with appropriate direction toward appropriate resources, and from that point it is the client’s duty to decide how to use this information. Although it may be impossible to always anticipate these types of occurrences, psychologists clearly have a duty to the client to make sure, if at all possible, that their psychological needs are addressed in an ethical way. 426

Additional forethought and planning in this area can be quite useful, to include locating another professional who is able and willing to take over the responsibilities for a practice if the psychologist becomes incapacitated or dies.

Client-Initiated Termination Clients almost always have the right to terminate treatment when they so want and can do so in spite of the therapist’s belief that treatment is necessary or in the client’s best interest. Regardless of this reality, the myths about abandonment and wrongful termination have even extended into this venue. Some psychologists believe that they have a duty to pursue clients who have chosen to drop out of therapy or who have not followed through with appointments. They do this on the basis of their erroneous belief that a failure to pursue follow-up contact constitutes abandonment of their professional responsibilities to the client. Although there is an argument for this position when dealing with severely disturbed or impaired individuals, the large majority of psychotherapy clients do not fall into this category, and therapists do not have any duty to engage in hot pursuit of them. Clearly, not all treatment inquiries lead to the continuation of psychotherapy. Many times clients choose to be indirect about discontinuing their contract with a particular psychologist. After an initial visit or two, a client could decide that they do not like the approach, gender, age, or clinical setting of the psychologist; do not want to pay the fees; or do not like a myriad of other things that affect their willingness to continue. Or it could be that the client simply is not in a stage of readiness to proceed with psychotherapy or perceives that their needs have been sufficiently addressed in this brief format. Consequently, they choose to not schedule another appointment or do not reschedule when they have canceled an appointment. Although in some cases this indirect behavior might arguably benefit from some therapy in its own right, it is the clients’ choice and right to behave in this way and to resolve their ambivalence in their own time, on their own terms. Therefore, out of respect for the client’s right to autonomy, psychotherapists would do well to be sensitive to this and

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to avoid engaging in behavior that could be perceived as pressuring clients to return when they have chosen indirectly to end the treatment relationship. The psychologist does not have a duty to find out what happened under these circumstances because this type of pursuit might be irritating to the client and seen as a violation of his or her rights to privacy and choice. It is entirely possible that the client views the financial costs of therapy as prohibitive relative to the potential benefit and may interpret the psychotherapist’s follow-up efforts as income motivated. Most people should be allowed to drop out of therapy by their choice, and there is nothing within the standards of professional practice that requires the psychotherapist to fix the presenting problem or pursue a clarification of what is caused the client to stop coming to therapy. Those who still worry about this type of patient-initiated indirect termination can send a simple and carefully worded note to the client telling them of their willingness of see them again should they be interested in doing so. In addition, psychologists who experience distress over this experience might address their worries as a countertransferential problem and use their own expertise, consultation, or personal therapy to target these concerns. It is surely possible that the client’s departure was not as detrimental to the client as psychologists often fear, and it is not necessarily indicative of personal shortcomings of the psychologist. Although this guidance should deal with the large majority of individuals who choose to stop seeing a therapist, there are unusual circumstances in which psychologists arguably do have a duty to follow up with a client. When a client could be seen as severely impaired in judgment or unable to maintain a reasonable level of self-care, gravely disabled, or in a crisis, a logical duty of care still exists even if the client has stopped contacting the therapist. This duty is not, however, fulfilled by making the client return to treatment or do what the therapist wants, but it could be fulfilled in a variety of other ways to include hospitalization, referral to another facility, or family contact when such contacts are legally allowable or consistent with the conditions of the therapist’s written informed consent. The duty here is one of care, not treatment.

Termination issues become more complex when the client is a child and the parent chooses to end treatment. Psychologists who find themselves in a circumstance of disagreement with a parent, where consent to treat the child is withdrawn by a parent yet the psychologist believes that the child still needs treatment, should familiarize themselves with the consent laws of their state as well as with risk management advice in this area. There are many cases where the wrong choice under these circumstances has led to confused disciplinary action by a licensing board. For example, in the case of Miller v. Board of Psychologist Examiners (2004), Dr. Debra Kahli Miller, arguably with the best of intentions, continued to treat a couple’s children when consent to do so had been removed by the children’s father. As a result of this action, Dr. Miller was sanctioned by the Oregon Board of Psychologist Examiners. Through a legal technicality, the Oregon Court of Appeals reversed the board’s determination that her conduct was negligent. In most states, it is the parent who can provide and remove consent for the treatment of a minor child, and such decisions are binding on a psychotherapist. Exceptions do exist where treatment can occur without parental consent, but doing so clearly and substantially increases the professional risk of adverse events, such as a licensing board complaint. Should a psychologist choose to treat a minor under one of these legal exceptions, it is vital to be familiar with the details of the state laws that allow continued treatment without parental consent and then engage in detailed and comprehensive risk management to avoid exposure to civil action or sanctions by the licensing board. When a parent objects to the treatment of a minor child, therapy might continue only with utmost caution and deliberation. In most cases, termination of treatment is arguably in the best interests of the child and the most prudent course of action. Treating children in divorced families carries with it its own special type of professional risk. Here state laws and custody agreements can collide, and any long-term animosity between divorced parents can become quite hazardous. Perhaps the therapist is placed in a circumstance in which one parent consents to the treatment while the other does not, or 427

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one parent removes his or her consent partway through treatment. These are dangerous waters to navigate, waters that almost always require professional consultation to review the decisions being made. A psychologist can have a policy that requires consent and cooperation of both parents in spite of the fact that a divorce degree or state law requires the consent of only one parent. The psychologist has the right to establish a policy that is more restrictive than what is required by law but cannot have policies that are less restrictive than what the law compels. Under this circumstance, if a clearly conveyed joint consent policy for treatment of a minor child of divorced family is the therapist’s policy and one parent removes consent, the therapist can terminate treatment regardless of the wishes of the other parent. In this case, the therapist would be well advised, out of respect for the continued duty to the child, to ensure that a referral is provided to another therapist who might have a less stringent policy or back to the insurance network. As an aside, in most states, it is possible to obtain a court order for treatment of a minor. When a court orders the treatment of a minor, the risks that extend from the nonconsenting parent to the professional are significantly reduced. Once again, consultation with a qualified fellow psychologist or attorney is advisable under these types of situations to protect the interests of the professional.

Therapist-Initiated Termination Termination myths probably have had the greatest impact on inhibiting therapist-initiated terminations. Psychologists often are worried about charges of abandonment and wrongful termination when they think that ending a treatment relationship is appropriate and the client does not. In spite of the small number of disciplinary actions in this area and the complete absence of any case law that applies to psychologists, psychologists maintain their worries that termination of this sort can have grave professional consequence (Younggren & Gottlieb, 2008). Many therapists are simply uncomfortable with ending on a note of disagreement with their client, believing that concurrence is a prerequisite to adequate and ethically sound clinical termination. As a result of these concerns, they can make some poor 428

professional decisions in the management of these cases to include maintaining unnecessary, unproductive, and even destructive treatment relationships. This occurs in spite of the fact that the Ethics Code prohibits this type of conduct. For example, Standard 10.10(a), Terminating Therapy, explicitly states, “Psychologists terminate therapy when it becomes reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service.” Standard 10.10(b) also reads, “Psychologists may terminate therapy when threatened or otherwise endangered by the client/patient or another person with whom the client/patient has a relationship.” Although the therapist might diligently build a foundation for cooperative termination by planning an end from the outset and discussing its approach throughout treatment, agreement on the conclusion is not always the case. Circumstances could arise to precipitate premature termination or a termination with which a client might not agree. Unexpectedly, the client and the psychologist might find themselves at odds. In this circumstance, it is important to remember that the psychologist is responsible for the professional decisions regarding treatment. This includes the decision to terminate treatment over the objections of the client when it is professionally appropriate to do so. Because psychologists must respect the power of the treatment alliance and the rights of their clients in that relationship, it is also important to remember that the psychologist is the professional in charge of protecting the client’s best interests. Although a client surely has a right to ask for psychotherapy, he or she cannot insist on maintaining a treatment relationship that the psychologist believes is unnecessary, comingled with conflicts of interest, headed in the wrong direction, or potentially destructive. To do so would clearly be seen as conduct inconsistent with the standard of care due the client. Psychologists also must protect their own professional integrity by determining what they are willing to do or not do in any given treatment situation. Each of these circumstances warrants further discussion. Sometimes psychotherapy alliances can become social habits that have no defined goals. Under this circumstance, it is fair to argue that although

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the client and therapist enjoy visiting with each other, there is no real goal to the treatment other than maintaining the alliance. This, of course, is questionable from an ethical perspective, but at a minimum, it reflects the lack of any defined treatment plan or purpose and it falls outside the scope of what is considered psychological therapy. When this occurs, therapists have to decide whether there is any value to continue to visit, like that of maintaining psychological stability, or whether it is time to terminate treatment because the goals have been met. If the decision is made to terminate, this should be a collaborative process; but, if it opposed by the client, termination usually is still the right decision. Remember that it is the psychologists’ professional responsibility to manage the treatment process. A therapy of habit, with no goals or treatment plan, is professionally irresponsible. What about when the psychologist believes therapy is headed in the wrong direction or the client is not participating in a productive way? In this case, the psychologist has a professional responsibility to attempt to redirect treatment. This warrants discussion with the client about what is going on, why it is not working, and what more effective directions should be considered. Ideally, this is a collaborative process. But if the client objects to the alternatives, it does not mean that the psychologist is wrong and should comply with the client’s demands, or that the psychologist should allow therapy to continue with ineffective client participation. Under these circumstances, it is important for psychologists to reflect on the responsibility of limit setting inherent in their role as the treating professional. Although clients have the right to pursue their interests as they see them, they do not have a right to force compliance from the psychologist. In this circumstance, the psychologist has the ethical responsibility to either resolve this disagreement or to terminate treatment and refer the client to another professional even if the client objects. Otherwise, the client assumes control of the treatment, a reversal of the fiduciary role that is professionally unacceptable. What about when therapy has taken a destructive direction? There are times when a treatment alliance becomes destructive, but the client, for whatever

personal reason, does not recognize the destructive aspect of the relationship, or the client does recognize this fact and wants to maintain the alliance. There are cases that exist in which such conduct has become quite serious and attempts to terminate have resulted in objectionable conduct on the part of the client (Ensworth v. Mullvain, 1990). What is important in this case is that it is not only the psychologist who has a duty to the client but also the client that has a duty to the therapist. As noted, clients are not allowed to violate the therapist’s privacy, threaten the therapist, or fail to fulfill the original informed consent agreement regarding matters of payment for services and participation. These actions all are violations of the original treatment contract. When these potentially destructive events occur, the psychologist, once again, has a duty to either quickly resolve them or to terminate work with the client. These issues raise a question regarding how one terminates a client who does not agree with the termination plan. First, and consistent with Bennett et al. (2006), it is always important to obtain professional consultation with qualified peers or experts when such adversarial circumstances arise. Consultation not only is a good risk management strategy but also truly can help to surface optional solutions to highrisk conflicts with clients. Second, a well-documented termination plan must be developed that is consistent with the theoretical model of the therapist. For example, long-term treatment alliances might require much more termination counseling and attention to the termination process than short-term therapies may require, particularly with psychodynamic or transference-based models. Third, the termination plan should be discussed with the client and memorialized in the treatment record. Modifications in the plan can be made at this point, but the end goal of termination should not be lost. Fourth, the plan should be implemented and if the client still objects or does not agree, the plan should be memorialized in correspondence to the client and should include referral to outside resources for continued care. Finally, when a client is terminated under these circumstances, it is unwise to reestablish any type of professional consultation with this person. This step is because subsequent contact could be seen as creating some type of duty of care on the part of the therapist. An extensive 429

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literature base exists that discusses this topic thoroughly to include how and when treatment should end and by what process that should occur (Bennett et al., 2006; Davis, 2008; Vasquez, Bingham, & Barnett, 2008; Younggren & Gottlieb, 2008). What if the client threatens the psychologist or violates professional boundaries? There are cases in which such conduct has become quite serious and in which attempts to terminate have resulted in objectionable conduct on the part of the client. Psychologists also have rights, and clients do not have any special privilege to violate the privacy of their therapists or to threaten their safety in any way. Furthermore, the Ethics Code does not stipulate that such conduct has to reach criminal levels before psychologists are empowered to take termination action. Specific details of the threatening or objectionable behavior should be memorialized in the client’s chart and correspondence should be sent to the client formally and immediately terminating the treatment obligations on the part of the professional. Client conduct of a personally threatening nature ends the therapist’s duty of care. Of course, once again, these types of cases usually require professional consultation and even legal guidance. CONCLUSION Beginning and ending therapy can be challenging and even uncomfortable or threatening because of inherent ambiguities and potential ethical conflicts. From a philosophical perspective, when therapy must be terminated or denied despite the client’s desire to continue, the psychologist usually is favoring the principles of beneficence and nonmaleficence at the expense of client autonomy. In circumstances in which it is necessary to resolve a conflict between ethical principles, a useful heuristic is to minimize harm to the offended principle. Thus, if the psychologist is concerned with denial of treatment or forced termination, harm to the client’s autonomy might be mediated through some other specific effort, such as the provision of a limited and judiciously chosen number of additional treatment sessions, referral information, or other attempts to help the client recognize options and choices that are within reach. Such behavior on the part of the 430

psychologist truly reflects a respect for the fundamental principles of good care along with being good risk management The practice of psychotherapy has become complex. Legal requirements abound and ethical advice is everywhere. The result of this for many psychologists has been the sacrifice of ethical decision making in favor of searching for some rule-based manual that gives concrete instructions on what to do and how to do it. We believe that it is ill advised to approach psychotherapy in this way. Instead, we view psychotherapy as a process that is best founded on ethical fundamentals that are integrated with personal virtues and practical realities. This process seamlessly ties the beginning to the end such that from the outset the consumer and the psychologist share an understanding of the rules, the direction, the plan, the proposed endpoint, and the context of practical realities. Both parties recognize the need to reassess these decisions as the process moves forward and more data are gathered. Along the way, changes in direction and problems are addressed collaboratively, while the psychologist clearly maintains responsibility for all professional decisions. We agree with Gutheil and Brodsky’s (2008) statement that the best form of risk management is good therapy. When a common definition of good therapy is determined, it will include a foundation of strong ethical principles and personal virtues that allow flexible decision making to protect the best interests of both the professional and the consumer rather than demand rigid adherence to predetermined rules and parameters. With this principled foundation, psychologists can open and close the door with assurance, and clients can enter and exit as empowered partners in a vitalized therapy process.

References American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx American Psychological Association Insurance Trust. (2011). Child therapy contract. Retrieved from http:// www.apait.org/apait/download.aspx?item=ctc.doc Beauchamp, T., & Childress, J. (2009). Principles of biomedical ethics (6th ed.). New York, NY: Oxford University Press.

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Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Davis, D. (2008). Terminating therapy: A professional guide to ending on a positive note. Hoboken, NJ: Wiley. Davis, D., & Younggren, J. N. (2009). Ethical competence in psychotherapy termination. Professional Psychology: Research and Practice, 40, 572–578. doi:10.1037/a0017699 Ensworth v. Mullvain, 224 Cal. App. 3d 1105, 274 Cal. Rptr. 447 (1990). Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50–57. doi:10.1037/0735-7028.28.1.50 Gutheil, T., & Brodsky, A. (2008). Preventing boundary violations in clinical practice. New York, NY: Guilford Press. Handelsman, M. M., Gottlieb, M. C., & Knapp, S. (2005). Acculturation as a framework for training ethical psychologists. Professional Psychology: Research and Practice, 36, 59–65. doi:10.1037/0735-7028.36.1.59 Health Insurance Portability and Accountability Act of 1996. Pub. L. 104-91 (1996).

Jobes, D., & Schneidman, E. S. (2006). Managing suicidal risk: A collaborative approach. New York, NY: Guilford Press. Miller v. Board of Psychologist Examiners, No. 00-05, A119529 (Or. Ct. App. June 2004). Pope, K. S., & Vasquez, M. J. T. (2007). Ethics in psychotherapy and counseling: A practical guide for psychologists (3rd ed.). San Francisco, CA: JosseyBass. Rice, N. M., & Follette, V. M. (2003). The termination and referral of clients. In W. O’Donohue & K. Ferguson (Eds.), Handbook of professional ethics for psychologists: Issues, questions, and controversies (pp. 147–166). Thousand Oaks, CA: Sage. Vasquez, M. J. T., Bingham, R. P., & Barnett, J. E. (2008). Psychotherapy termination: Clinical and ethical responsibilities. Journal of Clinical Psychology: In Session, 64, 653–665. Younggren, J. N., & Gottlieb, M. C. (2004). Managing risk when contemplating multiple relationships. Professional Psychology: Research and Practice, 35, 255–260. doi:10.1037/0735-7028.35.3.255 Younggren, J. N., & Gottlieb, M. C. (2008). Termination and abandonment: History, risk and risk management. Professional Psychology: Research and Practice, 39, 498–504. doi:10.1037/0735-7028.39.5.498

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CHAPTER 17

ETHICS AND BUSINESS ISSUES IN PSYCHOLOGY PRACTICE Jeffrey E. Barnett and Lindsay Klimik

The efforts of psychologists to aspire to the highest ethical ideals of the profession generally involve following principles and standards relevant to clinical issues and concerns. Examples include providing each client with informed consent at the outset of the professional relationship, only practicing within our areas of clinical competence, maintaining appropriate boundaries, protecting confidentiality, terminating treatment appropriately, and avoiding the abandonment of clients. Although a focus on ethics relevant to clinical issues is essential, ethical psychologists also must consider business aspects of practice and how these may influence their clients. This chapter addresses the intersection of ethics, law, and the business aspects of practice for psychologists. It will consider office setup and policies, running a practice, technology in practice, advertising and public statements, fees and financial arrangements, and interruptions in practice (planned and unplanned). Within each area, relevant standards from the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) and the guidance they provide for ethical conduct are addressed. Furthermore, the role of applicable laws is discussed and the intersection of, and possible overlap between, ethics and law are discussed. Finally, frequently occurring dilemmas are presented along with specific recommendations to prevent them, when possible, and to respond to them, when needed. In all cases, psychologists’ ultimate obligations to their clients remain a primary focus, and the use of a thoughtful ethical decision-making process is

emphasized so that the most ethical and clinically effective outcomes may be achieved. OFFICE SETUP Psychologists may work in a range of settings, including individual or group practices, clinics, hospitals, and other locations. Additionally, psychologists may accept positions where the office and physical facility are already in place, or they may lease, purchase, or build office space. In each of these situations, psychologists must exercise forethought and care, considering the ethical and clinical implications of the physical aspects of office setup. Confidentiality and privacy are important issues to consider when deciding on office design and setup. It is essential that psychologists protect their clients’ privacy. Individuals in the waiting room and in the next office should not be able to overhear the psychologist’s and client’s conversations when in session. Standard 4.01, Maintaining Confidentiality, states clearly each psychologist’s obligation to take needed preventive steps to protect and maintain each client’s confidentiality: “Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained” from their clients (APA, 2010, p. 7). One reasonable preventive step each psychologist can take is to ensure sufficient soundproofing and noise protection. With the door closed, psychologists can sit in their office speaking both conversationally and loudly and have a colleague or staff member positioned right outside the door to see

DOI: 10.1037/13271-017 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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whether the conversations can be overheard. It should be kept in mind that clients may become animated, angry, or upset and be louder than a mere conversational tone of voice. Even in these situations, individuals outside the treatment room should not be able to overhear the client and psychologist. Soundproofing is an important first preventive step. Some of the things that psychologists can do to reduce noise leakage include placing insulation in the walls and in the ceiling, especially if the room has a suspended ceiling; using solid doors with a flexible strip attached to the bottom; putting carpeting on the back of the office door; or using heavy curtains (Brien, 1990). In addition, psychologists can create noise barriers in the waiting room by using a white noise machine, a waterfall sound machine, or by playing soft music. Psychologists with home offices should have separate spaces designated for seeing patients, with the same confidentiality protections in place as with any other office. Issues involving confidentiality, boundary violations, and other ethical dilemmas are more likely to occur when psychologists see patients literally in their living rooms. Psychologists must take additional care with regard to the physical setup of the waiting room area. It is strongly recommended that office staff (secretaries, receptionists, assistants, etc.) not have their workspaces in the actual waiting room. Although it might seem welcoming to have a staff member placed behind a desk right inside the door to the office suite to greet clients, such a placement brings with it great risks to privacy and confidentiality. In addition to greeting clients upon their arrival, the receptionist also may answer the telephone and take messages for professional staff, schedule appointments over the telephone, schedule appointments for clients as they are leaving the office, accept payment from clients, contact insurance companies to discuss client issues (such as name, diagnosis, treatment issues, etc.), speak to pharmacists to call in client prescriptions (when physicians work in the office as well), do word processing, and complete and submit insurance claims, among other activities that involve confidential information. Clients likely understand and accept that when seated in the waiting room before their appointment, other 434

clients of the practice may be seated there as well. But they do not anticipate that their private information will be shared in front of other clients or that they will be exposed to other clients’ private information. Consistent with the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the waiting room must be structured so that all activities can be carried out without unauthorized individuals (i.e., everyone sitting in the waiting room) overhearing any confidential conversations or reading private documents. Typically, this issue is addressed by having a wall separating office staff from the waiting room with a sliding glass partition in the wall. This partition enables staff and clients to see each other, protects confidential information and materials, and allows the staff to open the glass when they need to speak with clients. OFFICE POLICIES Consistent with these recommendations about office setup, psychologists should write specific office policies to ensure and protect client privacy. They should keep these policies in a central location and update them as needed. Furthermore, they should review these policies with office staff periodically. Although these recommendations are not all included in the enforceable standards of the Ethics Code, they represent sound risk management recommendations. Although not specifically addressed in the Ethics Code, the obligation to train staff is consistent with HIPAA regulations. Psychologists should train staff to protect client confidentiality, oversee their performance (Fisher, 2009), and give feedback as needed to remediate any oversights or misunderstandings. Psychologists may wish to have employees sign a contract to verify staff training (Fisher, 2007). Fisher (2007) has provided sample documents for psychologists to access online. Although the psychologist’s primary focus is on the competent provision of clinical services to clients, attention to staff behaviors and actions may prove to be equally important. Office policies also should address record storage and access. Psychologists should document all clinical service in a timely manner and store records in a manner that protects client privacy (APA, 2007,

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2010). Psychologists can protect patient privacy by restricting access to client records only to those authorized to see them, keeping records in locked and fire-resistant file cabinets, keeping these file cabinets in rooms with access limited to staff only, storing keys in a private location, and locking file cabinets when unattended. To ensure compliance with the enforceable standards of the Ethics Code regarding record keeping, written office policies should specifically address when records may be accessed and by whom, where records should be kept on the day they are to be used, where records should be placed when a clinician or staff member is through using them, and when records should be returned to the file cabinet. Leaving client records in unsecured areas is not appropriate. Cleaning staff can see records left out overnight, and any individuals walking through office spaces can see records left in an unattended office. Those who take confidential client records out of the office, even for appropriate purposes, must take special care in doing so. Although psychologists may bring home a treatment record to work on a report or treatment plan, they should be cognizant of the heightened risk of violating client confidentiality. Precautions to protect privacy include transporting client records in a locked briefcase or other similar receptacle that prevents unauthorized access to the records. When working on the records at home, they should not be left unattended even for short periods of time. Imagine a psychologist’s shock when returning to his or her study from a lunch break and finding his or her children and their playmates reading through the interesting papers on the desk (or the interesting materials on the computer). Psychologists who dictate reports and then provide the recordings to transcriptionists to type need to be similarly cautious. It is vital that psychologists train these staff members in the requirements for maintaining confidentiality, which should include discussing likely threats to privacy with recommendations for prevention. Staff members should sign a written confidentiality agreement and periodically review the agreement with the psychologist. Although there is nothing inherently unethical or inappropriate about dictating reports for transcription by a staff member (even off site),

how this is done is an ethics issue that is each psychologist’s responsibility. RUNNING A PRACTICE: HIRING AND FIRING Psychologists who are employers need to know relevant state and federal laws when hiring and firing employees. For example, it is important to know which questions one may ask during interviews and which are inappropriate and what benefits must be provided for each employee. Psychologists may assess potential employees’ integrity and screen them for histories of maladaptive behavior (Woody, 2002). For example, candidates who report a history of numerous jobs in a short period of time, who report that it is difficult to keep secrets, and who present a cavalier attitude toward mental health difficulties may not be well suited for such work. Furthermore, psychologists should adequately train and supervise all employees to ensure that they conduct themselves appropriately and fulfill all work requirements. Typically, administrative staff will not have the ethics mind-set of a psychologist. Consistent with the principles of beneficence and nonmaleficence, staff must be trained in ethics as they pertain to their roles. For example, receptionists and secretaries must understand how to respect and maintain confidentiality. Speaking over the telephone about one client in the presence of another client is inappropriate. Staff must be trained in storing records, appropriately using office technology, and the like to ensure that confidential information is safeguarded. Staff must understand that speaking about clients outside the office or with individuals not directly involved in their care is strictly forbidden. Psychologists should provide staff members with a written employment agreement that specifies their roles, duties, and job requirements. Furthermore, this agreement should clearly articulate acceptable as well as inappropriate conduct in keeping with the Ethics Code and HIPAA regulations. Although the Ethics Code is intended to guide psychologists’ actions and conduct, it also directly applies to all who work under the psychologist’s supervision. Thus, Standard 4.04(b), Minimizing Intrusions on 435

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Privacy, applies to employees as well, stating, “Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters” (APA, 2010, p. 7). Psychologists should monitor their employees’ conduct and provide regular written and verbal feedback on the standards set in the employment agreement. Psychologists should review and update training in ethical conduct periodically; psychologists should provide feedback as necessary and remediation efforts should occur immediately when indicated. Employees who fail to perform their job duties in accordance with the written agreement and who are not responsive to feedback and remediation efforts over time should have their employment terminated. Once again, knowledge of relevant laws is essential to ensure that training, remediation, and employment terminations are done in compliance with these laws. Laws for hiring and firing employees vary from state to state; psychologists who are aware of these laws may be less likely to be involved in a lawsuit by their former employees. Furthermore, full documentation of all agreements, training, feedback, remediation efforts, warnings, and the like should be kept meticulously. These records will be important if one’s actions are challenged legally. Some malpractice insurers offer policies to psychologists that cover employment risks.

Delegation to Subordinates Psychologists must delegate to subordinates only those duties and functions that are consistent with their role and training. Standard 2.05, Delegation of Work to Others, applies to employees, clinical supervisees, and all other subordinates under a psychologist’s responsibility (APA, 2010). This standard makes clear that psychologists may delegate to subordinates only those tasks and functions that the psychologist is competent to perform. Furthermore, the psychologist is obligated to supervise subordinates to ensure that they are carrying out their duties appropriately and responsibly. When deciding whether subordinates are competent to provide a particular service, psychologists must examine their “education, training, or experience” (APA, 2010, p. 5). Appropriate delegation to, and oversight of, employees is further addressed in the Preamble of 436

the Ethics Code, which encourages psychologists to promote “ethical behavior by students, supervisees, employees, and colleagues” (APA, 2010, p. 2). Even when appropriate tasks are delegated to employees, psychologists must provide appropriate oversight. This includes being available for consultation as may be needed and carefully considering each employee’s abilities and level of independent functioning when delegating tasks. DeLeo (1990) recommended considering the following when delegating to employees: “assigning priorities to jobs, separating personal jobs from delegated ones, determining who is capable of doing the job, and delegating the assignment” (p. 78). Additionally, psychologists should keep in mind Standard 3.02, Sexual Harassment, and Standard 3.03, Other Harassment, to ensure the appropriate treatment of employees. How psychologists interact with and treat subordinates is included in the Ethics Code as part of each psychologist’s ethical obligations. Psychologists should not assign clinical duties to administrative staff that are beyond their skill level or allow them to give clients advice about their difficulties. If administrative staff members are appropriately trained, however, they may, depending on the circumstances, hand out assessment tools and rating forms. Staff must be trained to understand the limits of their roles. Psychologists should be cautious in this regard and only delegate clinical tasks to individuals who have the needed education and training. Similar guidelines apply when psychologists supervise clinical staff members, such as unlicensed professionals working under the psychologist’s supervision to meet licensure requirements. Furthermore, the psychologist must ensure that supervisees receive the needed type and amount of supervision (Barnett, Cornish, Goodyear, & Lichtenberg, 2007). Although state licensing laws will specify the minimal number of hours each supervisee must receive weekly, these are minimum expectations. Each psychologist has the ethical responsibility to provide the amount of supervision needed to ensure that clients’ clinical needs are appropriately met. (More information on supervision can be found in Volume 2, Chapter 13, this handbook.)

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Employees Versus Independent Contractors Psychologists who hire other mental health professionals to work in their practice should understand the laws relevant to employment status. If another individual is hired as an employee, the business owner is then responsible for unemployment taxes, payroll taxes, one half of the individual’s Social Security payment, and other benefits that are agreed to in the contract (Walfish & Barnett, 2009). The terms of employment will dictate the days and hours the employee must work, the types of services they provide, and the like. If the individual is hired as an independent contractor, these terms of employment are not applicable. The Internal Revenue Service (IRS) defines the status of independent contractor in Publication No. 1779 (IRS, 2011). This document specifies that independent contractors set their own work hours and schedules, choose their clients, may hire their own employees, purchase their own supplies needed to perform their work, and pay their own taxes. Psychologists who hire independent contractors must follow these guidelines to prevent legal difficulties with the IRS. If the psychologist contracts with an independent contractor (thus saving on tax payments and other responsibilities) but asserts control over this individual’s clinical work or business, under the IRS regulations, this individual in fact may be legally considered an employee. Thus, the important point is not just what the psychologist calls the individual but how the individual is treated and whether this treatment is in accordance with IRS regulations. Psychologists should consult with their accountants if they are uncertain of the IRS status of the employee. TECHNOLOGY IN PRACTICE Psychologists regularly use many forms of technology in their practices, including telephones, facsimile machines, computers, and cell phones. The use of technology can greatly enhance practice efficiency and can help increase psychologist accessibility for clients, but use of these conveniences comes with risks. Each form of technology brings with it risks and threats to client confidentiality (Barnett &

Scheetz, 2003). For example, a facsimile of a client’s evaluation report intended for another professional’s office may be sent to the wrong number, confidential information discussed over a cell phone may be intercepted by an AM radio, e-mail communications between client and psychologist may be read by others who can access the server, hackers can enter a computer network electronically and download confidential client files, and computer viruses can attack a computer system and send out confidential information stored in the computer over the Internet. (More information on technology and telehealth can be found in Volume 2, Chapter 10, this handbook.) ADVERTISING AND PUBLIC STATEMENTS Like all others who provide a service for a fee (i.e., run a business), psychologists have the right to advertise their services. While providing the public with potentially important information, advertising has self-serving goals for the business owner, namely, promoting the business to increase revenues. Yet, these two potentially contradictory goals need not be inconsistent. By carefully following the relevant standards of the Ethics Code and state laws, psychologists can advertise their services in a manner that meets the public’s needs while simultaneously promoting their business. Perhaps the most basic concept in the Ethics Code relevant to advertising is that of honesty. It is essential for psychologists to promote their businesses and increase revenues with truthfulness and integrity. Standard 5.01, Avoidance of False or Deceptive Statements, states, “Psychologists do not knowingly make public statements that are false, deceptive, or fraudulent concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated” (APA, 2010, p. 8). This standard is consistent with the aspirational General Principles of the Ethics Code (APA, 2010), which guide psychologists to “strive to benefit those with whom they work and take care to do no harm” (Principle A: Beneficence and Nonmaleficence, p. 3); to “establish relationships of trust with those with whom they work” (Principle B: Fidelity and Responsibility, p. 3); “to promote accuracy, honesty, 437

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and truthfulness in the science, teaching, and practice of psychology” (Principle C: Integrity, p. 3); and to “recognize that fairness and justice entitle all persons to access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists” (Principle D: Justice, p. 3). More specifically, the Ethics Code states, Psychologists do not make false, deceptive, or fraudulent statements concerning (1) Their training, experience, or competence; (2) their academic degrees; (3) their credentials; (4) their institutional or association affiliations; (5) their services; (6) the scientific or clinical basis for, or results or degree of success of, their services; (7) their fees; or (8) their publications or research findings. (p. 8) Thus, the Ethics Code provides specific requirements for advertising and public statements that help ensure that the public is not deceived and that they have access to needed information. This applies to psychologists’ statements to the public that are presented verbally, in print, on the Internet, on television or the radio, or through any other medium (Standard 5.01(a)). It may be tempting to present one’s credentials or services offered in a manner most likely to generate additional business, but this may never be done in a way that violates each psychologist’s fiduciary responsibility to clients and to the public. All such statements and representations to the public must be presented clearly, truthfully, and with integrity. The following case examples we developed should prove illustrative. Case Example 1: Dr. Webb’s Site Found at the website www.bestpsychologyaround.com: Dr. J. Webb is the best psychologist in the tri-county area. She uses only proven techniques that are guaranteed to work. She has the training and skills needed to help you overcome all your difficulties. Dr. Webb is a member of the very prestigious American Psychological Association. 438

For psychological services that work, contact Dr. Webb now. This psychologist is violating Standard 5.01 of the Ethics Code by making “false, deceptive, or fraudulent statements” (APA, 2010, p. 8) about her competence, training, skills, likely outcome of her services, and her association affiliation. She likely is creating false expectations for the public by directly influencing their expectations of the services to be provided through statements that are not supported by data. Case Example 2: A Matter of Degree(s) Found in a phone directory under Psychologists: Dr. Fizz Icks, MA, MS, PhD, Mental Health Specialist by Appointment Only The public could interpret this vague advertisement in a variety of ways. It might be reasonable to assume that this individual has a doctorate in psychology and is, in fact, a psychologist. Instead, this is an individual with a master’s degree and a doctorate in physics who recently made a career change by obtaining a master’s degree in psychology. Thus, “Dr.” Icks, an associate member of the APA, is making a deceptive public statement in this advertisement. Standard 5.01(c) allows psychologists to “claim degrees as credentials for their health services only if those degrees . . . were the basis for psychology licensure by the state in which they practice” (p. 8). Case Example 3: Just the Facts Ma’am Found in a psychologist’s practice advertisement: Claire Lee Stated, PsyD, ABPP, Licensed Psychologist Board Certified in Clinical Psychology (American Board of Professional Psychology, www.abpp.org) Over 30 years of experience as a licensed psychologist providing psychotherapy to adults. Specializing in the treatment of anxiety, depression, and stress related disorders. Office is handicap accessible and one block from the Johnson metro station. This psychologist states her name, relevant degree and certification, and professional status and

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titles, and she even provides a website for consumers to learn more about what board certification in psychology means. The number of years in practice is presented along with the range of services provided. Information on location and accessibility are provided. Factual information is provided that can assist consumers to make informed decisions. No standards of the Ethics Code are violated in the example.

(thereby implying a higher level of competence) may violate Standard 5.01, Avoidance of False and Deceptive Statements, which states, in part, that “psychologists do not knowingly make public statements that are false, deceptive, or fraudulent concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated” (APA, 2010, p. 8). Additionally, some state licensing laws also prohibit professionals from advertising with credentials they have not earned.

Board Certification and Vanity Boards Board certification is a credential beyond licensure that should demonstrate to the public a higher level of competence and expertise in a particular practice area. For board certification to be of value to the public, the certification should be earned on the basis of a review of the psychologist’s training and credentials, review and critique of representative work samples, and a written or oral examination that assesses the psychologist’s knowledge in the given specialty areas (Dattilio, Sadoff, & Gutheil, 2003). Board certification through the American Board of Professional Psychology (ABPP), the American Board of Professional Neuropsychology, and the American Board of Assessment Psychology involves a rigorous process of examination of the applicant psychologist’s knowledge, skills, clinical competence, and adherence to ethical principles and standards. ABPP, for example, has a board certification process for psychologists in 13 specialty areas of psychology, including clinical, health, child and adolescent, counseling, school, forensic, and others. The mission of each of these organizations is similar. ABPP’s mission, for example, “is to increase consumer protection through the examination and certification of psychologists who demonstrate competence in approved specialty areas in professional psychology” (see the ABPP website: http://www. abpp.org). This mission statement is of particular relevance when considering the issue of vanity boards that offer board certification credentials without requiring a rigorous examination of the psychologist’s competence. On the surface, this additional credential of extra letters after one’s degree may impress those who see it. But an argument can be made that representing oneself to the public with these credentials

Use of Professional Titles Psychologists are advised to know the relevant laws that regulate psychology in their state, province, or territory. A key issue is what professional title the law allows psychologists licensed in that jurisdiction to use when representing themselves to the public. For example, in some jurisdictions, licensure as a psychologist is generic, and the only title allowed is “licensed psychologist.” In other jurisdictions, specialty licensure is available, and it may be proper to use the titles of “licensed clinical psychologist” or “child psychologist,” for example. A detailed knowledge of the specifics of these laws in one’s jurisdiction(s) is important to ensure that the public receives accurate information, one’s professional status is not misrepresented to the public, and one is in compliance with licensing statutes and avoids threats to one’s license.

Testimonial Endorsements Testimonial endorsements are a form of advertising used by many businesses. Any television commercial in which a happy customer speaks the praises of the business in question is demonstrating the use of a testimonial endorsement. For psychologists, the use of testimonial endorsements has an important history. In the early 1980s the Ethics Code came under the scrutiny of the Federal Trade Commission (FTC). The FTC and other government agencies had been working to bring about changes in the ways professional associations attempted to regulate their members (such as through the Ethics Code for psychologists) with regard to advertising and sharing information with the public (Koocher, 1994). As Koocher (1994) reported, the FTC’s Bureau of Competition contacted professional associations about practices that limited the way members shared information with the public 439

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that might be useful to making decisions about services they might access. Although the FTC sought to prohibit public statements that were fraudulent, untruthful, and misleading, it was interested in ensuring that truthful advertising was not restricted or prevented by association policies. The FTC took the position that testimonial endorsements from satisfied consumers of psychologists’ services are a legitimate form of advertising and a potentially important way to share useful information with the public. The profession of psychology, on the other hand, viewed the use of client testimonials as potentially inconsistent with the psychologist’s obligations to clients. To seek or use a testimonial endorsement from a client could take advantage of the client’s dependency on the psychologist and could violate the focus on meeting the client’s needs, not the psychologist’s. When considering the intimate nature of the psychotherapy relationship and the presence of transference, seeking or using a testimonial endorsement by a client could be seen as exploitative, and thus, in violation of several other standards of the Ethics Code. The APA and the FTC entered into a consent decree in which a compromise was struck between the need to provide the public with necessary information about the services provided by psychologists and the need to not take advantage of client vulnerabilities and dependency. The results of this consent decree are found in the current Standard 5.05, Testimonials, which states that “psychologists do not solicit testimonials from current therapy clients/ patients or other persons who because of their particular circumstances are vulnerable to undue influence” (APA, 2010, p. 8). This standard makes it clear that psychologists never seek or accept a testimonial endorsement by a current client. To do so would violate their trust and take advantage of their vulnerability. The compromise with the FTC allows psychologists to seek and accept testimonial endorsements from former clients, but only if they are not vulnerable to the psychologist’s influence. Psychologists carefully consider the former client’s emotional status and vulnerability to the psychologist’s influence before taking such actions. In fact, when making such decisions, it is recommended that psychologists utilize 440

the questions provided in Standard 10.08, Sexual Intimacies With Former Therapy Clients/Patients, for guidance in deciding when and if the use of a testimonial endorsement from a former client is appropriate. These questions are as follows: (1) the amount of time that has passed since therapy terminated; (2) the nature, duration, and intensity of the therapy; (3) the circumstances of termination; (4) the client’s/patient’s personal history; (5) the client’s/patient’s current mental status; (6) the likelihood of adverse impact on the client/patient; and (7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a posttermination [testimonial endorsement]. (APA, 2010, p. 13) The following case examples developed by the authors highlight how these questions may aid psychologists in making these decisions. Case Example 4: Stressing the Client’s Best Interests A psychologist provides a client with five sessions of stress management training in a group format. The client successfully completes the treatment. Two years later the former client happens to see the psychologist in a local store and walks over to say hello. He shares how the stress management program was so helpful for him and how it really made a difference in his life. He tells the psychologist that he would be happy to tell others this if the psychologist wanted. Case Example 5: Anxious to Please A psychologist provides treatment to a client with significant anxiety and depression. They work together for 2 years until they agree that the client can begin moving forward on her own. The client expresses concerns and asks if she can come back to treatment if she experiences further difficulties. The psychologist agrees but reinforces for the client how much progress she has made and

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how well she is doing. The psychologist then asks the client if she would provide a testimonial endorsement for the psychologist to use on her website. These case examples illustrate how all former clients are not the same and that for some, seeking or using a testimonial endorsement easily can be seen as self-serving for the psychologist and not in the client’s best interest. Those wishing to exercise great caution will never utilize testimonial endorsements from former clients. Nevertheless, by using the questions from Standard 10.08, Sexual Intimacies With Former Therapy Clients/Patients, psychologists are provided with the guidance needed to make these decisions when they do consider using testimonials. Of course, psychologists providing organizational consulting or similar services may have more flexibility in using client testimonials.

In-Person Solicitation Standard 5.06, In-Person Solicitations, states that “psychologists do not engage, directly or through agents, in uninvited in-person solicitation of business from actual or potential therapy clients/patients or other persons who are vulnerable to undue influence” (APA, 2010, p. 8). Again, the goal of this standard is not to restrict psychologists from appropriately and ethically marketing and expanding their businesses, but rather to ensure that psychologists do not take advantage of vulnerable clients. Psychologists have ethical obligations not only to their clients, but also to those they may serve in the future and to the public in general. The following example describes an inappropriate solicitation. Case Example 6: Recovery (Mis)steps A psychologist with a clinical specialty in addictions attends local Alcoholics Anonymous meetings. He sits quietly through each meeting, listening to each participant’s story as it is shared. Then, after the meeting, he approaches selected individuals, introduces himself as a psychologist, offers his business card, and suggests that he can be of assistance with the specific issues and concerns that person shared in detail during the meeting.

This case example highlights a psychologist taking advantage of the vulnerability of individuals who are sharing their personal difficulties solely for the purpose of receiving emotional support and assistance from their fellow meeting attendees, not for the purpose of assisting the psychologist to develop his practice. By approaching “selected individuals,” the psychologist is likely speaking to those who are especially troubled, and thus most vulnerable to the psychologist’s influence.

Media Presentations At times, psychologists may share psychological knowledge and information with the public through the media. When doing so, as outlined in Standard 5.04, psychologists take care to ensure that statements are consistent with the Ethics Code; “are based on their professional knowledge, training, or experience in accord with appropriate psychological literature and practice”; and “do not indicate that a professional relationship has been established with the recipient” (APA, 2010, p. 8). Examples of media may include radio talk shows, television shows, newspaper columns, and the Internet. Participation in these activities can promote the psychologist’s practice as an excellent marketing technique while simultaneously providing a valuable public service. At times, however, it may not be clear that what looks like a public service in fact is an advertisement for one’s practice (McGarrah, Alvord, Martin, & Haldeman, 2009). Standard 5.02, Statements by Others, requires that “a paid advertisement relating to psychologists’ activities must be identified or clearly recognizable as such” (p. 8). This standard also makes it clear that psychologists may not compensate others for inclusion in a news story. Thus, working with the media can help to educate the public while marketing one’s practice and enhancing one’s professional reputation as an expert in selected areas of clinical practice. But, for unwary psychologists who utilize media work to market their practice, they may be at risk for violating the APA’s principles and standards. (More information on media and psychology can be found in Volume 2, Chapter 11, this handbook.) 441

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FEES AND FINANCIAL ARRANGEMENTS The practice of psychology is a business and psychologists must charge a fee for professional services to maintain a viable practice. Psychologists should address their fees and relevant financial arrangements as part of the informed consent process at the outset of the professional relationship and all agreements can then be reviewed and updated as necessary. Standard 6.04, Fees and Financial Arrangements, states that “as early as is feasible in a professional or scientific relationship, psychologists and recipients of psychological services reach an agreement specifying compensation and billing arrangements” (APA, 2010, p. 9). As highlighted by Knapp and VandeCreek (2008), psychologists can detail all financial policies, arrangements, and agreements in a written document that both the psychologist and client review and sign. This document can include payment and office policies to include the fee for each service (e.g., psychotherapy, assessment, consultation), when payment is due, methods of acceptable payment (e.g., cash, check, or credit card), charges for nontreatment services (e.g., report writing, telephone consultations), policies regarding charges for appointments that are missed or canceled without a certain amount of advanced notice, the role of insurance and whether the psychologist assists in some way with filing for insurance, and how unpaid bills are addressed by the psychologist to include the use of a collection agency or small claims court. For example, a client whose insurance benefits are soon to be exhausted would want the psychologist to review the policies regarding payment before this event occurs.

Fee Setting and Billing Issues Psychologists charge for the professional services they provide. As long as the client has been informed of the charges in advance, in theory, one could charge any fee desired. In reality, when setting fees, psychologists typically take guidance from the local marketplace. Consequently, those with significant experience and expertise, as well as those with specialized areas of competence that are in demand, may charge higher fees than others in the local area. The major limitations on fee setting specified in the Ethics Code include that “psychologists’ fee practices are 442

consistent with law” and “psychologists do not misrepresent their fees” (APA, 2010, p. 9). Psychologists also avoid exploiting their clients. For example, while psychologists have the right to raise their fees periodically, how they do so has ethical implications. Psychologists who treat long-term clients can find their expenses increasing and the impact of inflation reducing their earnings. It is best to anticipate that this will occur and to have and review with clients written policies on the raising of fees in advance. One possibility is to have the policy of raising the fee by a specified amount or percentage each January 1. Another way to raise fees is to inform clients that they will be provided with 3 months’ notice before fees are raised. Such advanced notice is vital when considering that to raise a client’s fee in the middle of treatment may have significant implications for the client’s ability to continue in treatment. Clients may need advanced notice to rework their budgets and plan for the additional expenses. Furthermore, for many individuals, fees and money issues may be emotionally laden. Psychologists may need time to work through or process the meaning of these fee issues for the client. Even when implementing the policy of a fee increase every January 1, it is important to remind the client of this policy before it occurs and to address these issues if clinically indicated. Providing clients with sufficient notice of fee increases is also relevant to the issues of termination and abandonment in cases in which clients cannot afford the increased fee. Simply informing the client of the new fee on the day it goes into effect could result in a violation of the ethical standards on termination and abandonment if the fee increase leads a client to stop treatment. Clients must be provided with pretermination counseling when treatment is to end “except where precluded by the actions of clients/patients or third party payers” (APA, 2010, p. 13). With advance notice, psychologists can work to meet the client’s needs clinically and with regard to fees, and the psychologist can make recommendations for referrals and offer the client assistance with this transition process (Younggren & Gottlieb, 2008). Furthermore, psychologists can consider the following alternative financial arrangements on a

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case-by-case basis: waiving copayments, using a sliding fee scale, providing pro bono services, and engaging in barter.

Missed and Canceled Appointments The fact that clients will miss an appointment or need to cancel and reschedule an appointment should come as no surprise to psychologists. Such occurrences are readily seen as a fact of life. But like all other important aspects of the treatment contract, missed and canceled appointments should be fully discussed in the informed consent process and be included in the written agreement on fees and financial arrangements. If these events occur on an isolated basis, they may not seem like significant issues. But a psychologist with a full-time practice who experiences frequent missed appointments or last-minute cancellations will experience a potentially significant financial impact and the inefficient use of time. As should be explained to clients during the informed consent process, when the psychologist reserves an hour for a client, this is then that client’s hour. Psychologists do not schedule multiple clients for the same time slot as physicians often do. The difference is that physicians schedule patients by procedure, not by periods of time. Thus, if one patient cancels an appointment or fails to show up, the physician can move on to the next patient in the waiting room. The psychologist must wait for the hour to pass to begin meeting with the next scheduled client. Explaining this to clients in this way should help them understand why the psychologist has a policy regarding missed appointments and cancellations without adequate notice. These policies typically involve a charge of the entire session fee or one half of the session fee if the client does not show up for the appointment or if the appointment is canceled with less than 24 (or 48, etc.) hours’ notice. Of course, in the interest of preserving the therapeutic alliance, some flexibility should be used when implementing this policy. For example, a client who oversleeps and forgets an appointment as a result of attending a friend’s birthday party the night before is a different situation than a client who cancels an appointment at the last minute as a result of being in the emergency room with her ill child. It is important to have such a policy in place and to enforce it

when it applies, but some care and thought should go into its application; it should be applied humanely. For example, some psychologists do not charge the client for the first missed or canceled appointment but instead use the occasion to remind the client of the agreement.

Client Failure to Pay Psychologists should ensure that fee and financial arrangement agreements specifically address their policies regarding failure to pay agreed-on fees. If the psychologist uses a collection agency as an option for collecting overdue fees or if the psychologist wishes to attempt to collect the fees through legal action in small claims court, these options must be addressed in the initial agreement. Furthermore, such actions should not be taken precipitously. Each client’s particular circumstances should be discussed and considered before taking these actions. Additionally, clients should be given the opportunity to make needed arrangements for payment of the fees owed before moving forward in this manner. As Standard 6.04, Fees and Financial Arrangements, says, If the recipient of services does not pay for services as agreed, and if psychologists intend to use collection agencies or legal measures to collect the fees, psychologists first inform the person that such measures will be taken and provide that person the opportunity to make prompt payment. (APA, 2010, p. 9) Additionally, when utilizing a collection agency, it is important that psychologists keep in mind their obligations to protect each client’s confidentiality. No clinical information should be released to a collection agency—only the client’s name, address, and telephone number; the dates of services provided; and the fees owed should be shared. It is important to address the possibility of the use of a collection agency or small claims court in the informed consent agreement (as documented in the written financial agreement). Psychologists should inform clients of the possibility of taking these actions and offer them the opportunity to make restitution before doing so. The attempt to 443

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collect an overdue fee through a collection agency or small claims court is a significant precipitant for clients filing an ethics complaint or malpractice suit (Bennett et al., 2006; Haas & Malouf, 2005; Knapp & VandeCreek, 2006). Apparently, many clients find such actions by their psychologist to be antagonistic, so if possible, they should be avoided. At times, forgiving the overdue fees may be a more prudent action than taking the risk of having to defend oneself in a costly malpractice suit or licensure board complaint. Some psychologists set a maximum allowable outstanding balance and include this in the informed consent agreement. For example, they may set the maximum outstanding balance as the charges for three psychotherapy sessions. When that amount is reached, the psychologist and client then can openly discuss their options. The client’s treatment should never be abruptly terminated without providing the client with assistance in obtaining needed ongoing services. Additionally, clients in crisis should never be terminated because of financial issues (Knapp & VandeCreek, 2006). When patients or managed care organizations (MCOs) no longer provide compensation for services and the agreed-on financial arrangement is not being met, termination may be appropriate. Psychologists are not obligated to continue treatment when they are not compensated in a way that is consistent with their original financial agreement (Younggren & Gottlieb, 2008). However, psychologists still maintain clinical responsibility for the client’s welfare (Barnett, 1997). If it is clinically appropriate to do so, the psychologist may refer the client to community support groups or eventually may terminate treatment. However, it is important to ensure that each client’s clinical needs are appropriately addressed and that clients are not abandoned (Younggren & Gottlieb, 2008). When these options are not appropriate, the psychologist and client have several options that they should consider. The psychologist could offer the client the option of a payment plan and continue providing treatment, the client and psychologist could agree to schedule appointments further apart until the client is able to pay the fees owed, the psychologist could refer the client to a provider who offers a sliding fee scale or pro bono services, the psychologist could 444

offer treatment at a reduced rate or pro bono, and the client could pay for treatment through barter. Each of these options will be discussed in detail, but it is important to emphasize that the psychologist’s decision in these situations will be guided by several factors, including (a) the client’s individual circumstances and reported reasons for failure to pay fees (e.g., losing one’s job vs. paying for an expensive vacation); (b) the psychologist’s assessment of the client’s clinical need and sense of the client’s ability to pay for services in the future; and (c) the psychologist’s business circumstances, financial pressures and obligations, and comfort with alternative payment arrangements. As is stated in Standard 6.04, Fees and Financial Arrangements, “if limitations to services can be anticipated because of limitations in financing, this is discussed with the recipient of services as early as is feasible” (APA, 2010, p. 9). Withholding records for nonpayment. At times, clients who owe a significant outstanding balance may discontinue treatment and make no effort to pay the debt. If they subsequently enter treatment with another professional, they may request a copy of their treatment record to aid the new provider. It may be tempting to refuse to release requested treatment records because of resentment over having provided treatment in good faith and the client not paying as agreed to in the informed consent agreement. In this situation, the standards in the Ethics Code need to be read in conjunction with HIPAA. Standard 6.03, Withholding Records for Nonpayment, makes clear that “psychologists may not withhold records under their control that are requested and needed for a client’s/patient’s emergency treatment solely because payment has not been received” (p. 9). Although the Ethics Code states that psychologists may withhold records for nonpayment as long as they are not needed for emergency treatment, under HIPAA, patients are entitled to access to protected health information, which includes a summary of their information, except under unusual circumstances. This means that providers do not have the option to withhold records for nonpayment because patients appear to have the right to a free copy of their records (Knapp & VandeCreek, 2008).

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Payment options and alternatives. Psychologists have a number of options available to them with regard to the fees they charge when clients experience financial need that otherwise might preclude their continued treatment. The provision of pro bono services (providing services free of charge) can be offered either for the entire course of treatment or just during a period of increased financial need that a client experiences. For example, a client may lose a job and insurance benefits. Offering pro bono services until the client finds new employment would allow treatment to continue uninterrupted. Additionally, some potential clients may have a great need for a psychologist’s services but not be able to afford treatment. Offering the entire course of treatment pro bono is an option consistent with Principle B, Fidelity and Responsibility, which states that “psychologists strive to contribute a portion of their professional time for little or no compensation or personal advantage” (APA, 2010, p. 3). Like all other principles of the Ethics Code, this is aspirational guidance and not an enforceable mandate. But, in keeping with the aspirational ideals of our profession (Handelsman, Knapp, & Gottlieb, 2002), psychologists are encouraged to provide some portion of their services to clients experiencing financial need. When clients experience financial limitations that affect their ability to afford treatment services, psychologists may consider the option of a sliding fee scale, or charging fees to clients on the basis of their ability to pay. Thus, those with greater financial means pay the full fee for the psychologist’s services and those with limited financial means pay a reduced fee. This approach can be offered to clients who previously had been paying the full fee but who begin to experience financial difficulties when ongoing treatment clearly is still needed. It also can be a model for how to structure one’s practice with information on the sliding fee scale shared with all clients during the informed consent process. It may be best to include this information in all advertising and public statements about one’s practice (e.g., phone directories, website) to assist the public in making informed decisions about where they choose to enter treatment. The use of a sliding fee scale is consistent with Principle D, Justice, in that its use enables more

individuals to have access to needed psychological services. It is also in keeping with Principle B, Fidelity and Responsibility, in that, with some clients, the psychologist will receive little compensation. Although use of a sliding fee scale is not mandatory, it is an important option to consider that will enable many more clients to afford and receive needed psychological services than otherwise might be possible. Psychologists offering a sliding fee scale would be well served by first creating a written policy that is shared with all clients and potential clients for whom this is relevant. This policy should clearly state when the sliding fee scale is offered, how it is applied, and what fees are charged for individuals of different levels of income. While there are no specific guidelines for fee setting that must be followed, psychologists should strive to create a structure that is fair for all clients determined on the basis of their financial means. This sliding fee system can be applied on the basis of client’s self-reported income and significant financial obligations, or one could require documentation of financial need, such as the review of recent tax returns and bills. Furthermore, each client’s motivation for treatment may be considered and efforts should be made to ensure that the use of a reduced fee does not result in the client devaluing the services offered. Psychologists also should be aware that sliding fee scales applied to all clients may create a problem for insurance companies in that they may contend that the psychologist’s usual and customary rate is lower than stated. A final point of emphasis is that psychologists should monitor the number of clients seen for a reduced fee or pro bono to ensure that they are not placing themselves under an undue burden, working too many hours to maintain their effectiveness, and creating the risk of burnout (Parvin & Anderson, 1995). Barter. In some situations and settings, the use of barter may be the only viable option that affords clients the ability to receive needed psychological services. Barter is the exchange of goods or services by the client for the services offered by the psychologist. Standard 6.05, Barter With Clients/Patients, states that “psychologists may barter only if (1) it is not clinically contraindicated, and (2) the resulting arrangement is not exploitative” (APA, 2010, p. 9). 445

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Barter can include the client providing the psychologist with a service (e.g., office cleaning or automobile repair) or goods (e.g., fresh produce grown on the client’s farm or crafts made by the client). As Hill (2000) has expressed, many clients may not be able to afford mental health services otherwise and the use of barter may be “a flexible and respectful response to class differences” (p. 85). Thus, as long as the use of barter is not exploitative or clinically contraindicated, it may enable some clients to receive much-needed treatment. The value of any goods or services to be provided by the client should be agreed on in advance. The potential for difficulties should be anticipated and the steps to be taken to resolve them should be agreed on as well. All barter agreements should be fully documented, and it is important to ensure that clients understand the potential implications of such agreements (Knapp & VandeCreek, 2008). Furthermore, psychologists ensure that clients are not taken advantage of or exploited when using barter (Zur, 2007) and that all barter agreements are fair and equitable for both parties. Psychologists also should consider their level of comfort and the consistency of a particular form of barter with their theoretical orientation. Some forms of barter may feel too intimate or personal. It is important that the barter arrangement not create ethical dilemmas or difficulties. For example, a client who owns a cleaning service may offer to clean the psychologist’s suite of offices weekly in exchange for one weekly psychotherapy session. This easily could create the dilemma of the client having access to confidential materials in the office. Furthermore, the psychologist should consider how the level of quality of the client’s work might affect the psychotherapy relationship. In that regard, the exchange of goods, which can be inspected in advance, may be a better option than exchange of services. In some communities, such as many rural areas and small communities, the use of barter is the norm, and these difficulties typically are addressed easily through ongoing open discussions. Psychologists should keep in mind that goods and services received as payment for professional services typically are reported as income for tax purposes 446

(Zur, 2007). Thus, consultation with one’s accountant is recommended before engaging in barter to ensure that it is documented appropriately.

Referrals No psychologist can provide all needed services to every client. Accordingly, at times, referring a client to another professional is the most prudent course of action, such as when a client’s treatment needs exceed the psychologist’s clinical competence, when a client is in need of a different treatment modality (such as inpatient treatment), when treatment is needed from a professional in a different field (such as medication treatment), or when a client moves and needs a recommendation for a psychologist in the new area so that treatment can continue. Several standards in the Ethics Code are of direct relevance to the referral process. Standard 2.01, Competence, states that “psychologists provide services . . . with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience” (p. 5). Standard 10.10, Terminating Therapy, states that “psychologists terminate therapy when it becomes reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service” (p. 13). This latter standard pertains to the psychologist continuing treatment when it is not in the client’s best interest. In these situations, when ongoing treatment is still indicated, an appropriate referral is warranted. Ongoing client treatment needs should be met so that abandonment is avoided. Finally, Standard 6.07, Referrals and Fees, makes it clear that psychologists may not give or accept a fee solely for accepting or providing a referral (referred to as a referral fee). Thus, fees should be based on services provided and not on the referral itself. The reasoning behind this is that if psychologists know they will receive a fee for referring a client to a certain treatment program or facility, they could be tempted to make the referral on the basis of their own financial gain and not the client’s best interests. As always, psychologists should know the relevant laws in the jurisdiction in which they practice.

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Some jurisdictions allow for payment and receipt of referral fees if the client is first informed of this fact. For example, the Annotated Code of Maryland, Health Occupations Article (Md. Code Ann. Health Occupations, 2005) requires psychologists to “make full disclosure in advance to the client of any remuneration given or received for making or accepting referrals.” When unsure of the best course of action, consultation with experienced colleagues and ethics committee members is suggested.

Insurance and Managed Care Many clients rely on health insurance to help pay for mental health treatment, and they may seek out professionals who participate in their insurance or managed care network. Psychologists who choose to participate on managed care panels and who interact with insurance companies face a number of ethical challenges, including contractual obligations, competence, confidentiality, informed consent, conflicts of interest, utilization review, and termination and abandonment issues (Barnett & Johnson, 2009). Although the information provided here is not exhaustive, a number of issues relevant to the ethics of managed care practice are highlighted here as important elements of the business of practice. When psychologists decide to participate in managed care, an important first consideration is the contractual obligations that come with participation. Ensuring a full understanding of these obligations is essential. Prudent psychologists do not rely on their own reading of contracts, but before signing them, they have all contracts reviewed by an attorney who is focused on their best interests, ask advice of other psychologists who have gained extensive experience with MCO contracts, or consult with state association experts (Walfish & Barnett, 2009). Examples of contractual obligations that could create ethical dilemmas for psychologists include requirements to meet with new clients within a specified time period (both for routine and emergency appointments); the provision of coverage and availability 24 hours per day, 7 days per week; the need to provide a certain type of treatment (such as brief psychotherapy or group treatment); and the requirement to provide all client records to utilization review personnel when requested (Cohen, Marecek, & Gillham, 2006).

Psychologists must ensure they have the clinical competence needed to meet their obligations to an MCO. While some large groups sign contracts that obligate them to provide needed treatment to all clients referred, smaller groups and individual practitioners will need to ensure that they treat only those for whom they have the necessary competence. Furthermore, the psychologist must be comfortable with the treatment approach expected by the MCO. For example, psychodynamic psychotherapists who provide long-term treatment may not be well suited for work in a brief treatment model that is symptom focused. Psychologists will want to discuss with clients all relevant requirements of the MCO during the informed consent process, such as diagnostic exclusion or limits to confidentiality that may exist because of utilization review requirements, and the potential impact of limitations to coverage on the treatment to be offered. Psychologists should be fully informed about the utilization review process and ensure that services are provided only after receiving appropriate authorization, if required. At times, psychologists may feel trapped in a conflict-of-interest situation: On the one hand, they are obligated to participate in the utilization review process truthfully, but on the other hand, they want to ensure that their clients receive all needed treatment. Additionally, at times MCOs will exert financial pressures on psychologists to motivate them to provide the briefest (i.e., cheapest) treatment possible. This can create a conflict for psychologists between the fiscally motivated decisions of the MCO and their own clinically motivated treatment decisions. As a result, it may be tempting to overpathologize clients during the utilization review process. Similarly, in their national survey of psychologists’ practices within managed care, Murphy, DeBernardo, and Shoemaker (1998) found a significant portion of psychologists altering diagnoses to obtain authorization for treatment. This alteration could include submitting only those diagnoses that fall within covered benefits. This should not include falsifying diagnoses, however, as this would constitute unethical and fraudulent behavior. Psychologists also may be tempted to alter how they bill for services so that their treatment will be reimbursed. For example, if an MCO does not 447

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provide coverage for treatment of marital dissatisfaction, a psychologist might consider listing one member of the relationship as the patient and then addressing marital issues with both partners. It is vital that clinicians first clarify covered benefits with insurance companies before altering invoices because not all companies will authorize this practice. Alternatively, if treatment is provided over the Internet but only in-person sessions are covered by the insurance, billing Internet sessions as if they occurred in person would be fraudulent and unethical. It is also important to appropriately supervise administrative staff members who file insurance claims to ensure that they are doing so accurately (Knapp & VandeCreek, 2008). The filing of inaccurate insurance claims, even if unintentional and made without malice, can result in legal charges of insurance abuse against the psychologist. At times, an MCO will deny a request to cover additional treatment. If the psychologist’s clinical assessment indicates that the client needs ongoing treatment, the client should not be abandoned. Psychologists should appeal such adverse utilization review decisions, and treatment should continue as needed pending the outcome of the appeal. Consistent with the principles of beneficence and nonmaleficence, at no time should psychologists abruptly terminate treatment when a client has ongoing treatment needs. Psychologists may prevent many other abandonment issues by reviewing each client’s insurance benefits and utilization review requirements at the outset of treatment. When a client’s insurance benefits are exhausted but ongoing treatment is still indicated, psychologists may consider the payment options discussed in Client Failure to Pay. When providing treatment to clients who are experiencing financial hardship, even with the use of their insurance benefits, an option available to psychologists is to waive the client’s copayment to reduce the client’s out-of-pocket costs for treatment. But in effect, it also lowers the actual fee the psychologist is charging, and this might violate the contract of some insurance companies or be considered insurance fraud (Committee on Professional Practice and Standards, 2003). Psychologists should waive copays sparingly on a case-by-case basis, in a manner consistent with any contracts, and 448

should consider other options for assisting clients experiencing financial hardship. INTERRUPTIONS IN PRACTICE: PLANNED AND UNPLANNED To prevent client abandonment and to ensure that each client’s clinical needs are met without interruption, it is important that psychologists plan in advance for possible interruptions in their ability to provide ongoing services (Vasquez, Bingham, & Barnett, 2008). Examples of interruptions of service that should be anticipated include the psychologist’s illness, injury, disability, and even death. Planned vacations and leaves of absence should be considered as well, along with other reasons for leaving one’s practice, including moving to a new location, retiring from practice, or being fired from or quitting a position (Barnett, 1997). Standard 3.12, Interruptions of Psychological Services, makes this obligation very clear: Unless otherwise covered by contract, psychologists make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist’s illness, death, unavailability, relocation, or retirement or by the client’s/patient’s relocation or financial limitations. (APA, 2010, p. 6)

General Unavailability Although abandonment may occur when treatment termination is handled inappropriately, it also may occur during the course of treatment (Barnett, MacGlashan, & Clarke, 2000). Clients need to have appropriate access to psychologists between sessions so that emergency situations may be addressed appropriately. Because no psychologist can be available at all times, it is important to arrange for emergency coverage. Voice mail systems, pagers, and cell phones increase accessibility, but psychologists also should consider making emergency coverage arrangements with colleagues. For those working in group practices or for organizations, it may be easy for coworkers to cover for each other. Often, psychologists can

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develop an on-call schedule and provide clients with this information or at least with the information about what to do if they experience an emergency between sessions. For those in solo practice, these arrangements may be made with colleagues also in solo practice because each will need this assistance. Ensuring each client’s understanding of this is an important element of the informed consent agreement (Barnett, Wise, Johnson-Greene, & Bucky, 2007).

Vacations or Leaves of Absence Planned vacations or leaves of absences can be easy to address (Barnett, 2008). Psychologists should notify clients in advance of these planned periods of time away from their practices and ensure appropriate coverage while they are away. Leaves of absences may include maternity and paternity leaves or planned surgeries and needed recovery time. Psychologists can notify clients and make coverage arrangements in advance and address clinical reactions and issues in treatment. Some clients may have unique needs (such as dependency, separation issues, etc.) to address. Colleagues who provide coverage should be able to meet these needs (Barnett, MacGlashan, & Clarke, 2000) and be sufficiently accessible. These colleagues also must be appropriately licensed, be briefed on the needs of any clients considered at risk to experience crises, and given access to any clinical records needed to provide appropriate care.

Illness, Disability, and Death Illness, disability, and death clearly are unpleasant to consider, but each must be anticipated and planned for to ensure that clients’ clinical needs are appropriately addressed. In these situations, psychologists will want to inform clients of what has transpired in a clinically appropriate and sensitive manner; address their reactions and emotional responses; and provide for their ongoing treatment needs, which may include making appropriate referrals, immediately responding to client crises, and arranging for the transfer of treatment records as needed. Certainly, it would not be desirable to have untrained family members carrying out these duties. Clinically and ethically, this would be inappropriate.

Younggren and Gottlieb (2008) have recommended that each psychologist develop a professional will that would specify a colleague who will be contacted immediately in the event that the psychologist is unable to practice for any reason. The professional will could specify the location of office keys and keys to files where client records are stored, client lists with their contact information, appointment schedules, and client financial records. The professional also should include information on compensation to the colleague for providing these services. Gormally (2005) asserted that a professional will ensures that the executor and family are assisted by a professional licensed to practice in the same state as the deceased psychologist, that the tasks that need to be addressed are listed, and that client records will be safeguarded and appropriately maintained. A professional will also specifies billing procedures and the need for good accounting records, indicates the malpractice carrier to be notified, and states that the estate is protected from postmortem lawsuits. Helpful recommendations and guidance on preparing a professional will may be found in Pope and Vasquez (2005).

Leaving a Group Practice or a Salaried Position Many of the issues that pertain to illness, disability, and death also apply to leaving a practice and retirement (e.g., making referrals, transferring records). Leaving a group practice or a salaried position present several additional challenges for psychologists. Prudent psychologists who enter a group practice or accept a salaried position review all contracts before signing them, including provisions relevant to the ending of the contract. One important issue is what happens to a psychologist’s clients when the psychologist leaves the group practice. Do they stay in the practice and need to be transferred to another psychologist in the practice, or is the psychologist allowed to continue treating the clients in the new position and location? Such issues frequently are addressed in practice contracts and may have legal implications if violated. It is important to ensure that each client’s treatment needs are adequately met. For each client whose treatment needs are ongoing, it is essential to make 449

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arrangements for transfer of their care to new psychologists, brief them on important client needs, and address client reactions to the psychologist’s impending departure. Ensuring a smooth and seamless transition in each client’s care is the goal. Who owns each client’s record is also a contractual issue to address. Does the practice keep all clients’ records even if the psychologist leaves the practice, or may psychologists take clients’ records with them when they leave the practice? Similarly, psychologists should be cautious about the implications of noncompetition clauses that are found in many group practice contracts. Such clauses may limit where psychologists may practice when they leave one practice (Walfish & Barnett, 2009). A typical noncompetition clause may state, for example, that psychologists who leave the practice may not provide clinical services for the next 3 years within a 5-mile radius of the practice. Each of these issues should be considered carefully so that clients’ best interests may be served and so that psychologists may avoid legal and ethical difficulties (Barnett, 1997). When planning for retirement, arranging for each client’s treatment needs remains important. One may sell the practice to another professional who then will take over each client’s treatment, or one may close the practice, making referrals and assisting clients with the transition. When closing the practice, it is important to think about record retention, transfer, and disposal issues. Furthermore, knowledge of relevant laws in one’s jurisdiction is essential. Some jurisdictions will have requirements for informing clients and former clients of the retirement in advance and instructing them on how to access their treatment records should they be needed in the future. First, the records should be maintained and stored in compliance with federal and state laws. No records should be destroyed before the legally allowed time. Any record destruction that occurs should be done in a manner that protects confidentiality, such as by shredding (APA, 2007). Next, the records that are maintained should be transferred to those professionals to whom clients were referred. But what about for those clients whose treatment has been completed although the records must be maintained? Some states require contacting all former clients or posting a notice in a local newspaper 450

in which the practice closing or retirement is announced along with the location where the records will be maintained. Then, all records are forwarded to the colleague maintaining the records so clients may access them if needed after the psychologist’s retirement. (More information on these topics can be found in Chapter 16 of this volume.) CONCLUSION Business aspects of practice have a direct bearing on how clinical services are provided. Knowledge of relevant ethics standards and laws is essential to effective work as a psychologist. Failure to attend to the issues addressed in this chapter may result in violations of relevant ethics standards and laws, and it also may result in harm to clients and liability for the psychologist. With thoughtful attention to these issues, forethought, and planning, each of the issues highlighted in this chapter can be addressed effectively for the mutual benefit of all involved.

References American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004. doi:10.1037/0003-066X.62.9.993 American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index/aspx Barnett, J. E. (1997). Leaving a practice: Ethical and legal issues and dilemmas. In L. VandeCreek, S. Knapp, & T. Jackson (Eds.), Innovations in clinical practice (Vol. 15, pp. 181–188). Sarasota, FL: Professional Resource Exchange. Barnett, J. E. (2008). Impaired professionals: Distress, professional impairment, self-care, and psychological wellness. In M. Herson & A. M. Gross (Eds.), Handbook of clinical psychology (Vol. 1, pp. 857–884). New York, NY: Wiley. Barnett, J. E., Cornish, J. E., Goodyear, R. K., & Lichtenberg, J. W. (2007). Commentaries on the ethical and effective practice of clinical supervision. Professional Psychology: Research and Practice, 38, 268–275. doi:10.1037/0735-7028.38.3.268 Barnett, J. E., & Johnson, W. B. (2009). Ethics desk reference for psychologists. Washington, DC: American Psychological Association. Barnett, J. E., MacGlashan, S., & Clarke, A. J. (2000). Risk management and ethical issues regarding

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termination and abandonment. In L. VandeCreek & T. Jackson (Eds.), Innovations in clinical practice (Vol. 18, pp. 231–245). Sarasota, FL: Professional Resources Press. Barnett, J. E., & Scheetz, K. (2003). Technological advances and telehealth: Ethics, law, and the practice of psychology. Psychotherapy: Theory, Research, Practice, Training, 40, 86–93. doi:10.1037/0033-3204.40.1-2.86 Barnett, J. E., Wise, E. H., Johnson-Greene, D., & Bucky, S. F. (2007). Informed consent: Too much of a good thing? Or not enough? Professional Psychology: Research and Practice, 38, 179–186. doi:10.1037/0735-7028.38.2.179 Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Brien, L. (1990). Office design. In E. A. Margenau (Ed.), The encyclopedic handbook of private practice (pp. 67–74). New York, NY: Gardner. Cohen, J., Marecek, J., & Gillham, J. (2006). Is three a crowd? Clients, clinicians, and managed care. American Journal of Orthopsychiatry, 76, 251–259. doi:10.1037/0002-9432.76.2.251 Committee on Professional Practice and Standards. (2003). Legal issues in the professional practice of psychology. Professional Psychology: Research and Practice, 34, 595–600. doi:10.1037/0735-7028.34.6.595 Dattilio, F. M., Sadoff, R. L., & Gutheil, T. G. (2003). Board certification in forensic psychiatry and psychology: Separating the chaff from the wheat. The Journal of Psychiatry and Law, 31(1), 5–19. DeLeo, J. V. (1990). Office personnel and service. In E. A. Margenau (Ed.), The encyclopedic handbook of private practice (pp. 75–79). New York, NY: Gardner. Fisher, M. A. (2007). Staff training: Sample documents. Retrieved from http://www.centerforethicalpractice. org/StaffTraining-SampleDocuments.htm Fisher, M. A. (2009). Ethics-based training for nonclinical staff in mental health settings. Professional Psychology: Research and Practice, 40, 459–466. doi:10.1037/a0016642 Gormally, J. (2009). Do you need a professional will? In J. E. Barnett (Ed.), Maryland Psychological Association ethics manual (6th ed., p. 199). Columbia: Maryland Psychological Association. Haas, L. J., & Malouf, J. L. (2005). Keeping up the good work: A practitioner’s guide to mental health ethics (2nd ed.). Sarasota, FL: Professional Resources Press. Handelsman, M. M., Knapp, S. J., & Gottlieb, M. C. (2002). Positive ethics. In C. R. Snyder & S. J. Lopez (Eds.), Handbook of positive psychology (pp. 731–744). New York, NY: Oxford University Press.

Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-91 (1996). Hill, M. (2000). Barter: Ethical considerations in psychotherapy. Women and Therapy, 22, 81–91. doi:10.1300/J015v22n03_08 Internal Revenue Service. (2011). Independent contractor (self-employed) or employee? (Publication No. 1779). Retrieved from http://www.irs.gov/businesses/small/ article/0,,id=99921,00.html Knapp, S., & VandeCreek, L. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. doi:10.1037/11331-000 Knapp, S., & VandeCreek, L. (2008). The ethics of advertising, billing, and finances in psychotherapy. Journal of Clinical Psychology: In Session, 64, 613–625. Koocher, G. P. (1994). APA and the FTC: New adventures in consumer protection. American Psychologist, 49, 322–328. doi:10.1037/0003-066X.49.4.322 McGarrah, N. A., Alvord, M. K., Martin, J. N., & Haldeman, D. C. (2009). In the public eye: The ethical practice of media psychology. Professional Psychology: Research and Practice, 40, 172–180. doi:10.1037/a0015520 Md. Code Ann. Health Occupations § 10.36.05.05 (2005). Murphy, M. J., DeBernardo, C. R., & Shoemaker, W. E. (1998). Impact of managed care on independent practice and professional ethics: A survey of independent practitioners. Professional Psychology: Research and Practice, 29, 43–51. doi:10.1037/0735-7028.29.1.43 Parvin, R., & Anderson, G. (1995). Monetary issues. In E. J. Rave & C. C. Larsen (Eds.), Ethical decision making in therapy (pp. 57–87). New York, NY: Guilford Press. Pope, K. S., & Vasquez, M. J. T. (2005). Therapist’s guide for preparing a professional will. Retrieved from http://www.kspope.com/therapistas/will.php Vasquez, M. J. T., Bingham, R. P., & Barnett, J. E. (2008). Psychotherapy termination: Clinical and ethical responsibilities. Journal of Clinical Psychology: In Session, 64, 653–665. Walfish, S., & Barnett, J. (2009). Financial success in mental health practice: Essential tools and strategies for practitioners. Washington, DC: American Psychological Association. doi:10.1037/11851-000 Woody, R. H. (2002). Risk management and office personnel. Family Psychologist, 51(1), 8–10. Younggren, J. N., & Gottlieb, M. C. (2008). Termination and abandonment: History, risk, and risk management. Professional Psychology: Research and Practice, 39, 498–504. doi:10.1037/0735-7028.39.5.498 Zur, O. (2007). Boundaries in psychotherapy: Ethical and clinical explorations. Washington, DC: American Psychological Association. doi:10.1037/11563-000 451

CHAPTER 18

THE REGULATION OF PROFESSIONAL PSYCHOLOGY Stephen T. DeMers and Jack B. Schaffer

Many people trace the history of professional regulation back to Hippocrates and the oath that early physicians and others engaged in the healing arts swore to “first, do no harm” (Sinclair, Simon, & Pettifor, 1996). Professions, like other creations of society, have evolved over time and increased in both complexity and, it is to be hoped, effectiveness. A regulatory system that manages or controls entry to and conduct within a profession is one of the hallmarks that distinguish a profession from a trade or other commercial activity. Various authors (e.g., Newton, 1988; Weissman, 1984) have listed the hallmarks of professions as including (a) the presence of academic training programs preparing individuals to practice the profession, (b) recognized societies or organizations composed of members of the profession that develop standards for training and promote the acquisition of new knowledge, (c) a code of ethics or standard of professional conduct that represents the shared commitment to provide competent and ethical professional services, and (d) a process of professional regulation that restricts entry to the profession to those meeting the acceptable standards of training and monitors the professional conduct of recognized members of the profession to ensure adherence to ethics codes and other recognized standards. This process of professional regulation intended to control entry into the profession and monitor professional conduct is typically called licensure and is a major focus of this chapter. Professional regulation involves an interplay between professional societies like the American Psychological Association

(APA) and the Canadian Psychological Association (CPA), which set standards for education and training and develop codes of ethics; and regulatory bodies (typically called licensing boards in the United States), which are created by state legislatures to protect citizens from harm by applying the recognized standards of the profession in awarding entry and monitoring conduct. In this chapter, we review the history and purpose of psychology licensure and the common standards and processes that licensing boards employ to restrict entry to the profession only to qualified individuals. Next, we describe the methods that licensing boards employ to monitor and control the professional conduct of credentialed practitioners. The relationship between codes of ethics and legally enforceable codes of professional conduct are explored, and the procedures followed by state and national ethics committees are compared with those followed by state licensing boards. Other regulatory mechanisms, such as malpractice suits, also are discussed. Finally, we address some of the challenges limiting effective professional regulation in psychology. Inconsistency across jurisdictions in the standards for entry to the profession (e.g., requiring a postdoctoral year of supervised experience) and the regulation of professional conduct (e.g., provisions for temporary practice without a license) create confusion and problems for both practitioners and regulators, such as difficulties with professional mobility and barriers to using innovative service delivery methods (e.g., telepractice).

DOI: 10.1037/13271-018 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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THE HISTORY AND PURPOSE OF PSYCHOLOGY LICENSING This section reviews the history of professional regulation, the function of licensing boards, and their relationships to the ethics committees of professional associations.

Professional Regulation in Psychology: A Brief History In the United States and Canada, professional regulation began with the passage of medical practice acts in the late 1800s to protect the public from charlatans offering useless or harmful remedies. In 1888, the U.S. Supreme Court issued an important decision in the case of Dent v. West Virginia (1889) that recognized the legitimate interests of the states to monitor and control the behavior of physicians to protect the health and safety of its citizens. This decision by the highest court in the United States led to the passage of medical practice acts in almost every state legislature by 1912. These medical practice acts created regulatory boards that set minimum standards for academic training as a physician, issued licenses to those individuals who met those minimum standards, and made it illegal for others to claim to be physicians or to engage in any of the healing arts listed in the law as part of the scope of medical practice. These early medical practice acts were typically sweeping in their scope (given the absence of other recognized professions) and essentially described the scope of medical practice as providing for the health and well-being of all citizens. Although these medical licensing laws set the foundation for the psychology licensing acts that were to follow, they also impeded the passage of such laws. Often physicians and medical associations strongly opposed early attempts to pass psychology licensing acts in state legislatures because they believed that mental health fell within the broad definition of the medical scope of practice and, therefore, that physicians should provide or supervise all mental health services. Psychologists, however, believed that psychology had become sufficiently distinct from routine medical practice and, thus, an independent and autonomous profession worthy of a separate psychology licensing act to adequately protect the public. 454

Connecticut adopted the first state psychology licensing law in 1945. But much activity related to professional regulation occurred within the recognized professional societies of psychology before this first law could be passed. APA, which had been founded in the late 1800s as a largely scientific society for the study of human behavior, took note of increasing concerns regarding the quality of psychological services and standards of care as psychologists began to use the theories and principles studied in the laboratories to address problems of the living. Lightner Witmer, considered by many to be the father of applied psychology, established the first psychology clinic in 1896 at the University of Pennsylvania and used psychological methods to resolve the learning and behavioral problems of school-age children. Publication in the United States of the first Stanford-Binet intelligence scales in 1916 led to the employment by public schools and private clinics of a variety of “mental testers” and practitioners called “school psychologists” who functioned to identify children in need of special education. However, questions soon arose about the academic preparation necessary to use these new mental tests competently (Fagan & Wise, 2007). In 1938, APA established the first Committee on Scientific and Professional Ethics to address these and other concerns about the application of psychological methods and tools to real-life problems of individuals (Ford, 2006). In the mid- to late-1940s, the issues of standards and controls in professional psychology were explored directly by the Conference of State Psychology Associations (Carlson, 1978). Simultaneous with these efforts within professional societies, there developed an increasing interest in creating more formal means of regulating the practice of psychology, culminating in the passage of the first psychology licensing act in 1945 (Carlson, 1978). By 1960, 33 jurisdictions in the United States and Canada had passed psychology licensure laws. By 1977, all 50 states had passed similar laws and most Canadian provinces had laws by 1986. This chapter uses the term jurisdiction when referencing the government entity responsible for regulating professional practice whether that entity is a state in the United States, a province in Canada,

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or a territory of either country. Similarly, the chapter often uses the term licensing board to refer to the legally appointed, elected, or recognized agency within a jurisdiction with the authority to regulate the profession of psychology. Such regulatory bodies are called by different names in different jurisdictions, most typically the board of psychology in a U.S. state or the college, register, or order of psychologists in a Canadian province. Schaffer, DeMers, and Rodolfa (2011) provided a table listing the year the original licensure law was passed in each jurisdiction, along with the numbers of licensees in 2001 and in 2008.

The Function of Psychology Licensing Laws in Society The purpose of all licensure laws is to protect the public from professionals who practice incompetently or unethically (Schaffer et al., 2011). The Association of State and Provincial Psychology Boards (ASPPB), the organization of psychology licensing boards in the United States and Canada, states the following on its website (ASPPB, 2010c): The laws are intended to protect the public by limiting licensure to persons who are qualified to practice psychology as defined by state or provincial law. The legal basis for licensure lies in the right of a jurisdiction to enact legislation to protect its citizens. The concept of caveat emptor, or buyer beware, is considered an unsound maxim when the consumer of services cannot be sufficiently informed to beware. Hence, jurisdictions have established regulatory boards to license qualified practitioners. Like any profession, psychology requires specialized knowledge and skill acquired through advanced and extensive training and practice. The average citizen is not equipped to judge whether the psychological services received are appropriate and generally recognized and accepted within the profession. Consequently, state legislatures agree to limit who may legally identify themselves as psychologists and who may provide services defined as psychological in exchange for the professional’s

agreement to operate in the best interests of the public by following recognized standards of care and professional conduct. Licensing boards enforce and regulate this contract between society and a profession. One implication of this contract between society and the profession is that licensing boards have a statutorily defined purpose that differs from that of state and national psychological associations. Licensing boards focus on the protection of the public, whereas professional societies and organizations focus on promoting the profession and the welfare of their members. However, these purposes may overlap because societies generally recognize that promoting the profession through increased knowledge and adopting rigorous standards for education and professional conduct also results in better protection of the public. Similarly, licensing boards view the standards and quality control mechanisms (e.g., accreditation of training programs) developed by professional societies to promote and advance the profession as important tools in their efforts to protect the public. As the ASPPB website (ASPPB, 2010c) notes, “By ensuring high standards for those who practice, the board serves the best interests of both the public and the profession.”

Relationship Between Licensing Boards and Ethics Committees Jurisdictional licensing boards and the ethics committees of state, provincial, and territorial associations (SPTAs) have much in common in their shared concern about unprofessional or unethical practice. In the 21st century, however, few SPTA committees currently adjudicate complaints against association members, partly because of the cost and difficulty of prosecuting such complaints fairly and partly because of the resulting liability for impairing an individual’s ability to work (Stephen H. Behnke, personal communication, August 7, 2009). SPTA ethics committees and the APA Ethics Committee frequently will defer action on a complaint until a licensing board completes its adjudication of any similar complaint. Adjudicating complaints remains a primary responsibility and activity of both licensing boards and the APA Ethics Committee. However, jurisdictions vary widely in the manner in 455

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which they handle such complaints. Consequently, the comparisons that follow involve the policies of the APA Ethics Committee and common statutory responsibilities and typical practices of most psychology licensing boards. (More information on the functioning of the APA Ethics Committee can be found in Chapter 2 of this volume.) Both the APA Ethics Committee and the licensing boards in each jurisdiction respond to complaints regarding incompetent, unethical, or illegal actions by licensed psychologists. Both bodies first have to determine whether they have the authority to adjudicate the complaint. Whether APA’s Ethics Committee has the authority to adjudicate depends on whether the individual belongs to APA and, thereby, has agreed to abide by the association’s code of ethics. Whether a licensing board has the authority depends on whether the individual has been granted a license by the licensing board in that jurisdiction, whether the behavior in question is a violation of statute or regulation in that jurisdiction, and sometimes whether the activity occurred within the jurisdiction (i.e., some jurisdictions have the authority to discipline a licensee based on an action for behavior that occurred in another jurisdiction where the individual is also licensed). The authority to adjudicate a complaint is no small matter. When a complaint is filed with a professional organization for conduct by an individual who is not a member or with a licensing board for conduct by an individual not licensed in the jurisdiction, the public may doubt the effectiveness of these professional regulatory systems. Assuming the ethics committee or licensing board has authority to proceed, both would then determine whether the complaint, if found to be true, constituted a violation of one or more provisions of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010a) or the licensing board’s code of professional conduct. Next, both groups would investigate the complaint following the procedural rules that they have adopted, including due process protections in the case of the licensing board. Both an ethics committee and a licensing board investigation typically allow the person who is subject of the complaint to offer testimony, submit evidence (e.g., case records), 456

or provide witness statements if relevant. Ultimately, the ethics committee members and licensing board members must determine whether a violation of the Ethics Code or law occurred and what penalty if any will be imposed. Typically, all information and records regarding a complaint are kept confidential by both the APA Ethics Committee and a licensing board until a final decision is reached and the action is made public. Ethics committees and licensing boards differ in three notable ways in handling complaints. First, an ethics committee most often relies on information voluntarily provided by the complainant and the respondent psychologist, whereas licensing boards have broad subpoena authority and can compel witnesses to appear or submit documents. Second, the ultimate sanction for an association ethics committee is revocation of membership in the association, whereas the ultimate sanction for a licensing board is revocation of the license, preventing the individual from being able to engage in the practice of psychology. Third, if the case is appealed, APA procedures stipulate that the ultimate appeal is to the APA board of directors, whereas an appeal of a licensing board decision usually moves the case into an administrative law arena (i.e., before an administrative law judge) or, if originally adjudicated by an administrative law judge, a district or appellate court. SCOPE OF LICENSURE AND TYPICAL EXEMPTIONS IN LICENSING LAWS This section reviews the scope of the licensing laws, including the definition of the practice of psychology and common exemptions.

Defining the Practice of Psychology and Scope of Licensure All licensing laws define the practice of psychology and the scope of practice for psychologists. Such statutory language serves two purposes. First, it carves out certain psychological services, such as psychotherapy, as lawful activities for psychologists. Historically, this was necessary as a way to define psychology as a profession that was able to provide such services to the public at a time when that legal authority was in dispute (Sinclair et al., 1996).

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Second, scope of practice language stipulates that boards of psychology have jurisdiction over certain activities of licensed psychologists, such that if harm or potential harm to the public occurs or if a psychologist acts in an unethical manner, disciplinary and remedial action can be taken (Rétfalvi & Simon, 1996). Most jurisdictions define the practice of psychology quite broadly, such as in Vermont: “Practice of psychology” means rendering or offering to render to individuals, groups or organizations, for a consideration, any service involving the application of principles, methods and procedures of understanding, predicting and influencing behavior which are primarily drawn from the science of psychology. The science of psychology includes, but is not restricted to, assessment, diagnosis, prevention, and amelioration of adjustment problems and emotional and mental disorders of individuals and groups. (Vermont Statutes, 2010) Recognizing a need for a more comprehensive definition, the recently revised APA Model Licensing Act (APA, 2010b) states the following: Practice of psychology is defined as the observation, description, evaluation, interpretation, and modification of human behavior by the application of psychological principles, methods, and procedures, for the purposes of (a) preventing, eliminating, evaluating, assessing, or predicting symptomatic, maladaptive, or undesired behavior; (b) evaluating, assessing, and/ or facilitating the enhancement of individual, group, and/or organizational effectiveness—including personal effectiveness, adaptive behavior, interpersonal relationships, work and life adjustment, health, and individual, group, and/or organizational performance, or (c) assisting in legal decision-making. The practice of psychology includes, but is not limited to, (a) psychological testing and the evaluation or assessment

of personal characteristics, such as intelligence; personality; cognitive, physical, and/or emotional abilities; skills; interests; aptitudes; and neuropsychological functioning; (b) counseling, psychoanalysis, psychotherapy, hypnosis, biofeedback, and behavior analysis and therapy; (c) diagnosis, treatment, and management of mental and emotional disorder or disability, substance use disorders, disorders of habit or conduct, as well as of the psychological aspects of physical illness, accident, injury, or disability; (d) psychoeducational evaluation, therapy, and remediation; (e) consultation with physicians, other health care professionals, and patients regarding all available treatment options, including medication, with respect to provision of care for a specific patient or client; (f) provision of direct services to individuals and/or groups for the purpose of enhancing individual and thereby organizational effectiveness, using psychological principles, methods, and/or procedures to assess and evaluate individuals on personal characteristics for individual development and/or behavior change or for making decisions about the individual, such as selection; and (g) the supervision of any of the above. The practice of psychology shall be construed within the meaning of this definition without regard to whether payment is received for services rendered. Some jurisdictions believe that more specific and specialized practice activities also should be included in statutes. In more than a dozen states, the licensing law separates licensees into health service providers and general practice providers on the basis of their training and experience. The Colorado statutes go even further, providing definitions for specialty areas of practice, including clinical and counseling psychology, rehabilitation psychology, health psychology, forensic psychology, organizational psychology, community psychology, and sports psychology (Colorado Revised Statutes, 457

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2010). Most laws employ a generic model using the broad definition of the practice of psychology found in the APA Model Act and then require practitioners to follow their ethical responsibility to limit their activities to demonstrated areas of competence.

Typical Exemptions from Licensure Most licensure laws are written to cover the professional behavior of all individuals who wish to call themselves psychologists or provide psychological services. A typical statute covering the practice of psychology is found in Pennsylvania law: It shall be unlawful for any person to engage in the practice of psychology or to offer or attempt to do so to hold himself [sic] out to the public by any title or description of services incorporating the words “psychological,” “psychologist” or “psychology” unless he shall first have obtained a license pursuant to this act. (Pennsylvania Professional Psychologists Practice Act, 2010) However, most laws also exempt from licensure certain categories of individuals who are trained in psychology. Individuals who have their highest education degree in a field of psychology but who work in education institutions as faculty or researchers or who work in government agencies are often exempted from licensure. For example, the Minnesota statute states, Psychologically trained individuals who are employed by an educational institution recognized by a regional accrediting organization, by a federal, state, county, or local government institution, agency, or research facility, may represent themselves by the title designed by that organization provided that the title does not indicate that the individual is credentialed by the board. (Minnesota Board of Psychology Practice Act, 2010) Although exemption from state licensure laws for psychologists working for the federal government continues, some federal agencies (e.g., the Department of Veterans Affairs) require that all professionals 458

eligible for licensure become licensed in at least one U.S. jurisdiction. In addition, a number of jurisdictions have removed the exemption from licensure for employees of state, county, and local governments on the theory that the standards of professional training and conduct should not vary across public and private settings. Another group of jurisdictions has narrowed the exemption for employees of education institutions to those solely engaged in teaching, research, or administration. Faculty or other university employees (e.g., counseling or medical center) who provide or supervise the provision of psychological services to the public must be licensed for practice to adequately protect the public. Psychology licensing laws also commonly exempt school psychologists credentialed by state education agencies. With only a handful of exceptions (e.g., Texas), most licensing laws exempt school psychologists from psychology licensure as long as they limit their practice to education settings under the authority of the state department of education. This exemption for school psychologists was strongly debated during the recent passage of a new APA Model Licensing Act (APA, 2010b). Proponents of removing the exemption claimed the use of the title by nondoctoral psychologists was confusing to the public and inconsistent with APA policy on doctoral entry level for the independent practice of psychology. Opponents of removing the exemption argued that credentialing of school psychologists predates the passage of psychology licensing acts in most states and any attempt to strip them of this title would result in costly battles between proponents of removing the exemption (most likely state psychology associations) and state departments of education in hearings before state legislative committees. Ultimately, the APA Council of Representatives voted to retain this exemption in recognition of the authority granted to state departments of education to credential individuals for work in public schools. The new APA Model Licensing Act (APA, 2010b) and most licensing laws that contain the exemption make clear that individuals wishing to practice psychology in settings outside the authority of the state education agency must comply with the requirements of the psychology licensing act. For example,

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in the Oregon psychology licensing act the provisions regarding licensure and self-representation to the public do not apply to a person who has credentials as a school psychologist if the person is an employee of an educational institution and restricts the person’s practice to activities within a school setting. A person acting under this paragraph may use the title, “school psychologist.” (Oregon Revised Statutes, 2009) Because much of what psychologists do is not a professional activity restricted to psychologists (e.g., provision of psychotherapy), most states also exempt other licensed professionals who operate within that profession’s legally recognized scope of practice. For example, the Florida law governing the regulation of psychologists states, No provision of this chapter shall be construed to limit the practice of nursing, clinical social work, marriage and family therapy, mental health counseling, or other recognized businesses or professions, or to prevent qualified members of other professions from doing work of a nature consistent with their training, so long as they do not hold themselves out to the public as psychologists or use a title or description protected by this chapter. (Florida Revised Statutes, 2007) Lastly, most licensing laws exempt students in training from licensure and allow them to offer psychological services within certain limitations based on their level of training and supervised experience. For example, the Oklahoma Psychologists Licensing Act exempts from licensure the activities and services of a student, intern, or resident in psychology, pursuing a course of study at a university or college that is regionally accredited by an organization recognized by the United States Department of Education, or working in a training center recognized by that university or college, if the activities and

services constitute a part of the supervised course of study for the student, intern, or resident. (Oklahoma Psychologists Licensing Act, 2003) The New York psychology licensing act defines how trainees can present themselves: “Such persons shall be designated by title as ‘psychological intern,’ ‘psychological trainee’ or other such title which clearly indicates his training status” (New York Education Law, 2010). COMMON LICENSURE REQUIREMENTS: CONTROLLING ENTRY INTO THE PROFESSION For those individuals not otherwise exempted from licensure who wish to practice psychology or call themselves a psychologist, each jurisdiction has adopted and promulgated the minimal standards of education, training, and supervised experience and the required examinations that must be passed to become licensed as a psychologist. These licensure requirements often are an amalgam of the standards and quality indicators developed by the major professional societies and organizations. They also include the perspectives, views, and values of the local proponents of a licensing law (or its subsequent amendment) and the state legislature or provincial government entity that must ratify or adopt its provisions. Most jurisdictions generally agree on the major requirements for licensure as a psychologist, but they may vary on the details and specifics related to these major requirements. The following sections describe the typical requirements for psychology licensure that exist across most jurisdictions in the United States and Canada.

Education All jurisdictions in the United States and Canada have specifically defined education requirements for licensure as a psychologist. In 48 states in the United States, an acceptable doctoral degree in psychology is required for the independent practice of psychology using the title “psychologist.” In 47 states, the doctoral degree–granting institution must be accredited by one of the recognized regional 459

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accrediting associations (the California Psychology Board is required to recognize some state-approved but not regionally accredited schools). All jurisdictions require applicants to obtain the doctoral degree from a program that provides an organized sequence of study in the field of psychology, demonstrated by holding accreditation by the APA or CPA or designated as a psychology doctoral program by the ASPPB/National Register (NR) Joint Designation System (mostly for psychology doctoral programs that fall outside the scope of APA or CPA accreditation). Some licensing laws allow individuals to provide evidence that the program awarding their doctoral degree is the equivalent of those holding APA or CPA accreditation or ASPPB/NR designation. Two states, West Virginia and Vermont, allow the independent practice of psychology upon receipt of an acceptable master’s degree in psychology. Another 12 states have statutes that permit practice at the master’s degree level provided the individual is supervised by a licensed doctoral psychologist either permanently or for an initial period of some years after which they may be granted the ability to practice autonomously. In those states authorizing supervised practice with a master’s degree in psychology, such practitioners typically are not referred to as “licensed psychologists,” but they are allowed to use a variety of titles, including psychological associate and psychological examiner. In a few states that currently require a doctorate, some psychologists may have received their license on the basis of a master’s degree through a grandfathering provisions (e.g., Pennsylvania). In these cases, the person already was practicing at the time of passage or amendment of the licensure law, and even if they did not meet the new education standards in the law, they could keep practicing and using the title. In Canada, four provinces require the doctoral degree in psychology for independent practice (British Columbia, Manitoba, Ontario, and Quebec); two other provinces (Nova Scotia and New Brunswick) are amending their regulations to require the doctoral degree. Four provinces (Alberta, Newfoundland and Labrador, Prince Edward Island, and Saskatchewan) and one territory (Northwest Territories) allow 460

independent practice with either the master’s or doctoral degree in psychology. In Canada, all psychology degree–granting programs must reside in a provincially approved and recognized institution of higher education. In 1995, an Agreement on Internal Trade became effective across Canada. This agreement required that all trades and professions that certified or licensed practitioners had to remove any unjustified barriers to labor mobility within Canada. Given the diversity of education requirements for psychology licensure across the provinces, regulatory boards or colleges (as they are commonly known) worked together to develop a mutual recognition agreement based on the attainment of a set of prescribed competencies rather than academic degrees. The issue of who may use the title “psychologist” in provinces that formerly restricted that title to individuals holding doctoral degrees has remained controversial. In 2009, the provincial ministers in Canada amended the 1995 agreement in a way that potentially could require all provinces to award the title “psychologist” to any individual so credentialed in another province regardless of academic degree. At the time of this writing, attempts to create a single level of licensure in Canada at the doctoral level are being met with considerable resistance from provinces that currently credential master’s trained individuals. Historically, the profession of psychology has developed consensus among both trainers and regulators regarding the content of the field that should be taught in graduate schools (see APA, 2009, Commission on Accreditation Guidelines and Principles). This consensus has resulted in an expectation that entry-level psychologists have a minimal level of knowledge in the following foundational areas: biological bases of behavior; cognitive and affective bases of behavior; social and cultural bases of behavior; statistics, measurement, and research methods; growth and life-span development; assessment and diagnosis; treatment, intervention, prevention, and supervision; and professional ethics and legal standards. Accreditation by APA or CPA or designation as a doctoral program by ASPPB/NR requires that academic programs demonstrate that students have received adequate training in each of those content

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areas. Therefore, graduates of programs that have such accreditation or designation are considered by all states and provinces to have met the education requirements for licensure. In many jurisdictions, applicants for licensure from nonaccredited or nondesignated graduate programs are given the opportunity to demonstrate adequate training in each of the core areas; however, the process of demonstrating equivalence often is quite daunting. Unfortunately, even in those jurisdictions that allow for the independent or supervised practice of psychology by individuals with a master’s degree, little consensus has been established. Few, if any, widely accepted quality indicators (like accreditation or designation) for the content of an acceptable master’s degree program qualify an individual for the practice of psychology. Each regulatory authority that allows practice at the master’s degree level sets its own standards and little consistency across jurisdictions exists at present. One final issue about acceptable education preparation for psychology licensure is the evaluation of the academic degrees and training experiences of applicants trained as psychologists outside the United States and Canada. Most ASPPB member jurisdictions have a procedure for evaluating the equivalence of academic degrees received from other countries. Many rely on established credential evaluation services like the World Education Services, a nonprofit organization that evaluates the accuracy and comparability of foreign transcripts and education documentation. The National Association of Credential Evaluation Services (NACES) offers certification of credential evaluation services, which provides some quality assurance to licensing boards and other stakeholders that the reviews produced are reliable. Such foreign credential evaluation services, however, evaluate the equivalence of degree programs and institutions similar to regional accreditation in the United States and should not be confused with program accreditation in psychology, such as that offered by APA or CPA, or designation as a doctoral program in psychology by ASPPB/NR. Licensing boards need to examine closely whether the foreign applicant has sufficient preparation in the core content domains contained in recognized doctoral degree programs in psychology.

Supervised Experience Most U.S. and Canadian jurisdictions require a practitioner to have 2 years of supervised experience to be licensed to practice independently. However, jurisdictions vary considerably in the characteristics of those 2 years, including how many hours of experience must be acquired in any one year, the timing of the supervised experience in the sequence of training, and characteristics of the setting and the supervisor. Historically, although all jurisdictions required some form of supervised experience, they differed in whether they required an internship year (or year of predoctoral experience), a year (or more) of postdoctoral experience, or both. Supervision has been presumed to be one of the essentials of adequate training, although historically, supervisors received no special training or instruction on what constitutes good supervision or how to maximize the skill levels of supervisees. Only recently has psychology been looking at supervision as a unique professional skill that requires specialized training and expertise. (More information on supervision can be found in Volume 2, Chapter 13, this handbook.) Licensing boards typically specify minimal standards of supervision in terms of the number of hours of supervision, the credentials of the supervisors, and so on, and some now require supervisors to have specialized training in supervision. In 1987, APA in its model licensure act recommended that the standard be 2 years of supervised experience, one of which must be postdoctoral. APA left it to each state and province to define the number of hours and other characteristics of this experience. By 2000, all U.S. states that required a doctoral degree for licensure (except Alabama) also required at least 1 year of postdoctoral supervised experience. Also in 2000, APA began to debate elimination of the postdoctoral year as a requirement for licensure in recognition of the increased number of practicum hours acquired by students in training. Although controversial both within and outside of APA, the APA Council of Representatives adopted a new policy in 2006 eliminating the postdoctoral year requirement for licensure and then, in 2009, passed a revised APA Model Licensing Act (APA, 2010b). The revised act encouraged licensing boards to 461

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require 2 years of supervised experience but to allow that experience to occur either before or after receipt of the doctoral degree, or some combination of the two. As of September 2010, 10 states (Arizona, Colorado, Indiana, Kentucky, Maryland, North Dakota, Ohio, Utah, Washington, and Wyoming) had revised their licensure requirements to adopt the APA policy on supervised experience. The remaining states had not changed their requirements because of either the wrong legislative climate for such a change or strong support for the necessity of a postdoctoral year. Unlike APA, ASPPB has not changed its model licensure act to recommend eliminating the required postdoctoral year of supervised experience. However, ASPPB did develop guidelines to assess practicum experiences to assist its member jurisdictions that chose to follow the APA recommendation (ASPPB, 2009). Until APA revised its policy, most licensing laws and both the APA and ASPPB model licensing acts were silent about the nature and characteristics of practicum experiences, because such experiences were not considered in evaluating candidates for licensure. With states revising their laws to recognize practicum experiences as part of the required 2 years of supervised experience, ASPPB took the position that practica now had regulatory significance. Up to that time, there were few, if any, agreed-on standards for what constituted an acceptable practicum experience and no standards for acceptable practicum experiences for purposes of licensure. ASPPB appointed a task force that worked with representatives from the various academic training councils and accreditation groups to develop a set of practicum guidelines for licensing boards to evaluate whether a particular candidate for licensure adequately meets the supervised experience requirement (ASPPB, 2009). The ASPPB practicum guidelines are not requirements for boards and are not requirements for training programs. The education and training needs of students may be different from requirements for licensure. The guidelines are not intended to limit the experiences students have, rather to define which experiences can be counted toward meeting licensure requirements. Furthermore, the guidelines 462

are intended to promote consistency across jurisdictions that have chosen to accept practicum experiences for licensure. This consistency avoids barriers to mobility between states that otherwise may adopt divergent standards for accepting practicum experiences. Even without the inconsistencies resulting from the debate about requiring a postdoctoral year, jurisdictions vary considerably in the characteristics of whatever supervised experience they require. For example, the minimal number of hours that constitutes a year of experience varies across jurisdictions with the largest number of jurisdictions (15) requiring 1,500 and the next highest number (11) requiring 2,000 (ASPPB, 2010a). Other variations across jurisdictions involve whether the setting must be an organized training experience (i.e., a planned sequence of experiences, directed by a psychologist, having a cohort of trainees), whether all or most of the supervision must be provided by a licensed psychologist, the ratio of supervision hours to client contact hours, and the amount of individual versus group supervision allowed. All of these variations can become serious impediments to mobility when an individual licensed under one set of requirements tries to get licensed in another jurisdiction where the experiences obtained do not meet one or more of these characteristics (DeMers, Van Horne, & Rodolfa, 2008).

Examinations and Other Measures of Competence to Practice Most if not all psychology licensing laws in the United States and Canada require that candidates for licensure pass the examinations selected by the licensing board that demonstrate adequate knowledge to practice the profession. This differs from the more traditional European model of regulation in which the individual must only graduate from a recognized university with an acceptable degree in psychology and join the psychological society to practice psychology. All U.S. states, two of the three territories, the District of Columbia, and 9 of 10 Canadian provinces require applicants for licensure to pass the Examination for Professional Practice in Psychology (EPPP; Rehm & Lipkins, 2006). As individual states and provinces began to pass psychology licensing

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laws in the mid-1900s, it became apparent that in the absence of a common examination, each jurisdiction would develop its own exam and professional mobility would become difficult when experienced psychologists were forced to pass a new licensure examination in each state where they sought licensure (Carlson, 1978). ASPPB was formed in 1961 by a committee of APA’s Board of Professional Affairs for the original purpose of developing, validating, and making available to the states and provinces one examination that could be adopted by all psychology licensing boards (Carlson, 1978). The EPPP has been validated through a series of practice analyses (Rosen, 2000; Rosen, Reaves, & Hill, 1989), the most recent of which was completed in 2010. These practice analyses have involved surveys or focus groups of practicing psychologists who are asked to rate knowledge areas within the field on their importance for entry-level practice and for protection of the public. These strategies follow the recommended procedures for validating a licensure examination (American Educational Research Association [AERA], APA, & National Council on Measurement in Education [NCME], 1999). The latest practice analysis identified eight core content areas (domains) and 78 subcategories (knowledge statements) that are necessary for competent practice at the entry level. The relative importance attributed to each domain is reflected in the percentage of the examination that is composed of items from that area. The eight core content domains and their respective weight on the EPPP are as follows: 1. 2. 3. 4. 5. 6.

Biological bases of behavior (12%) Cognitive–affective bases of behavior (13%) Social and cultural bases of behavior (12%) Human growth and life-span development (12%) Assessment and diagnosis (14%) Treatment, intervention, prevention, and supervision (14%) 7. Research methods and statistics (8%) 8. Ethical, legal, and professional issues (15%) Although the EPPP has been validated and used exclusively by psychology licensing boards in the United States and Canada since 1963, there is a great deal of misunderstanding about the purpose and usefulness of the EPPP (cf. DeMers, 2009; Sharpless &

Barber, 2009). The EPPP often is criticized for lacking in predictive validity, for not assessing competence to practice, and for having a low pass rate. As DeMers (2009) pointed out, ASPPB has never claimed anything but content validity, which has been determined by testing standards as the most appropriate form of validity for a credentialing examination (AERA, APA, & NCME, 1999). Pass rates for first-time doctoral test takers average around 83% (DeMers, 2009). With regard to assessing competence to practice, the EPPP was never intended to be the sole measure of an individual’s competence to practice. The Information for Candidates brochure reflects the limited role of the EPPP in evaluating candidates for licensure: The EPPP is only one part of the evaluation procedure used by state and provincial boards. In order to determine a candidate’s competence to practice the profession of psychology, the boards usually supplement the EPPP with other requirements and/or assessment procedures. (ASPPB, 2010b, p. 3) In addition to the EPPP, most jurisdictions require candidates for licensure to pass other examinations, including oral examinations of competence to practice and some form of jurisprudence examination that focuses on the understanding of local mental health law and the relevant ethical codes and standards of care, as well as ethical decision making. The jurisprudence examinations being used by licensing boards range from paper-and-pencil objective examinations, to computer-based objective examinations, to vignette-based oral examinations. Many jurisdictions are employing testing specialists to design and validate their jurisprudence examinations, although pass rates on such exams tends to be quite high. The profession of psychology (including professional societies; councils of academic faculty; groups representing field supervisors; and groups involved with regulation, accreditation, and credentialing) is exploring the advisability and feasibility of moving toward the assessment of competence to evaluate the outcomes of training or the readiness for entry 463

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to practice (Fouad et al., 2009; Roberts, Borden, Christiansen, & Lopez, 2005). Roberts et al. (2005) have summarized these efforts to consider assessment of competence as a shift away from the traditional practice of educators and regulators to assume competence on the basis of accumulation of graduate credits or hours of supervised experience. Kaslow et al. (2009) provided a comprehensive review of a range of competency assessment methods, including using standardized patients, portfolios, structured rating systems, consumer satisfaction surveys, and other tools. They also discussed the methodological strengths and weaknesses of each method for assessing the practice competence of professional psychologists. Rodolfa, Schaffer, and Webb (2010) argued that the “culture of competence must be paired with the culture of competence assessment” (p. 296). The increased interest in developing new methods to assess competence should not imply that there are no means of assessing competence in place. Most academic training programs and licensing boards presently rely on ratings of trainees completed by practicum, internship, and postdoctoral residency supervisors. It is appropriate that this be an important measure of competence because supervisors often directly observe the behaviors of students in the practice setting. There are also problems with relying on supervisors’ evaluations, however. Both supervisors and faculty are in dual roles with students that can be problematic for the objectivity of the evaluation (Johnson et al., 2008). Faculty and supervisors have a vested interest in the success of their students, because outcomes, such as licensure rates and the attainment of employment, reflect on the training the student received. As a result, graduate programs and supervisors have incentives to evaluate students positively, even if they exhibit inadequate competence. As a result, more objective and valid measures of competence are needed.

Moral Character Most jurisdictions have some requirement related to moral character as a basic requirement for licensure as a psychologist. Section 6 of the Pennsylvania Professional Psychologists Practice Act (2010) is typical 464

and states the applicant shall be “of acceptable moral character” as one of the first qualifications for licensure. However, few licensing acts define acceptable or good moral character, and licensing boards vary in the questions about character they ask on application forms (Johnson, Porter, Campbell, & Kupko, 2005). Most laws indirectly suggest the types of behaviors or infractions that might trigger a claim of poor moral character by an applicant when considering the portion of the licensing act that describes grounds for disciplinary action (see the section Grounds for Disciplinary Action). Although these provisions are directed at the bases for restricting or revoking a license, one could easily infer that these same grounds could be invoked to deny an application for licensure. Also, a history of legal cases has upheld the moral character requirement despite its lack of definition. In the 1991 case of Abrahamson v. Illinois Department of Professional Regulation (1992), the Illinois Supreme Court upheld an appellate court finding that the requirement that an applicant for a medical license be of “good moral character” was not unconstitutionally vague and could be defined broadly to include evidence of honesty, fairness, and respect for the rights of others and the law. Furthermore, the court held that the requirement of good moral character was of no lesser importance than any other requirement for licensure. In a 1990 psychology case in Vermont, the state Supreme Court again upheld the actions of the Vermont Psychology Board when it denied a license to an applicant who had falsified his academic credentials on the basis that the applicant was morally unfit to practice. The applicant again had challenged the board’s decision on the basis that the requirement of moral fitness was ambiguous and thus legally unenforceable (Brady v. Barasch, 1990). Some of the best empirical information about moral character and fitness to practice comes from the literature on education and training rather than licensure. Papadakis et al. (2005) reviewed the medical school evaluations of physicians who were later disciplined by medical boards and found compelling evidence that often there were early warning signs that later problems might develop. Elman and Forest (2007) summarized a series of studies that investigated problems with fitness to practice evidenced

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by psychology graduate students that affected their later professional competence. They suggested developing a new nomenclature or terminology for problems of moral character and fitness to practice that would result in more effective interventions and better protection for the public and the profession. Still, a licensing board must be judicious in the application of the good moral character standard and consider not only the type of behavior in question but also the circumstances surrounding that behavior, such as length of time since last infraction and evidence of remediation or lack of recidivism. The California State Bar (2010), for example, considers many factors when evaluating past criminal convictions by applicants to the bar, including age at time of conviction, length of time since conviction, restitution, and evidence of rehabilitation. Research with applicants for nursing licenses (Kelly & Crevette, 2005) found those with previous criminal convictions were no more likely to be disciplined by a state nursing board than applicants without a prior conviction, suggesting the nursing boards are effectively identifying those individuals whose past criminal behavior is not likely to result in future professional misconduct. PROFESSIONAL REGULATION AFTER LICENSURE: ASSESSING CONTINUING COMPETENCE, SPECIALTY CREDENTIALS, AND LICENSURE MOBILITY The obligations of the boards to protect the public do not end with licensing. Instead, the boards strive to ensure continued competence on the part of practitioners by various means, such as requiring continuing education as a condition of licensure renewal and ensuring that psychologists accurately represent their specialty credentials to the public. ASPPB and other groups also work to facilitate the mobility of psychologists who move between jurisdictions, while also protecting the public from the psychologist who may be seeking relicensure to avoid the consequences of a prior disciplinary sanction.

Mandatory Continuing Professional Development As Wise (2010) pointed out, continuing professional development is considered part of the professional’s

ethical responsibility to maintain competence throughout one’s career and, in most jurisdictions, a legal requirement to renew one’s license to practice. Wise noted that the term lifelong learning often was used to describe the personal professional growth expected of the ethical practitioner, whereas the term mandatory continuing education (CE) typically was used to describe the legal requirement to obtain approved education experiences to renew one’s license. Neimeyer and Taylor (2011) stated that if CE is considered one hallmark of a profession’s evolution, then professional psychology can be viewed as having a significant developmental delay. They traced the slow evolution of CE requirements in psychology across three separate epochs starting in 1960 and ending in the 21st century. Wise (2010) found 44 of 51 licensing authorities in the United States (including the District of Columbia) required some form of mandatory CE. The specific requirements for CE vary considerably from jurisdiction to jurisdiction. According to Wise (2010), the number of CE hours required each year appears to range from 6 to 20, although this has to be estimated because of variations in the number of years between license renewals. Twenty hours per year was the most frequently cited requirement (i.e., in 21 jurisdictions). Most jurisdictions require that a sponsor approved by APA, CPA, or another CE approval organization provide the CE. The requirements for the content of the training acquired also vary. Twenty-nine of the jurisdictions in the United States require some portion of the CE to be completed in the areas of ethics or regulatory requirements. Some jurisdictions require that the individual receive training in other content areas, including domestic violence or cultural diversity, unless they can show such training in their graduate preparation (Wise, 2010). California law requires the licensed professional to choose CE instruction that is related to the assessment, diagnosis, and intervention for the client population being served or to the fields of psychology in which the psychologist intends to provide services. Knapp and Sturm (2002) have suggested ways to broaden both the content and the process for imparting any mandated CE related to ethics. 465

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Rodolfa et al. (2010) argued in their response to the Wise (2010) article that although the majority of licensing boards require CE and most licensed psychologists believe CE is helpful (Neimeyer, Taylor, & Wear, 2009), there is little evidence at present that CE is effective in maintaining professional competence for psychologists. Rodolfa et al. (2010) concluded, “The profession must determine the actual utility and impact of CE, and, more broadly, develop mechanisms for mandated and periodic assessment of psychologists’ maintenance of competence” (p. 297). A study by Marinopoulos et al. (2007) prepared for the Agency for Healthcare Research and Quality (of the U.S. Department of Health and Human Services) looked at physician CE and concluded that “most studies reviewed suggested that CME is effective, at least to some degree, in not only achieving, but also in maintaining the objective studied” (p. 7). The type of CE program is important, as not all education programs appear to be equally effective, depending on the nature of the information studied. Interactive programs, programs with live media—as opposed to print—and programs with multiple exposures tend to be more effective than a single didactic presentation. One influential consumer advocacy group has recommended that regulatory organizations “go beyond imposing mandatory continuing education (CE) to require . . . periodic assessment of knowledge, skills, and clinical performance; development, execution, and documentation of an improvement plan based on the assessment; and periodic demonstration of current competence” (Swankin, LeBuhn, & Morrison, 2006, p. ix). ASPPB has begun to investigate the feasibility of tying licensure renewal for psychologists to more comprehensive assessment of continuing professional competence beyond CE to include peer consultation, practice monitoring, and specialty credentialing,

Specialty Certification and Other Credentials Once individuals are licensed professionals, they often choose to acquire certifications or qualifications to demonstrate special skills or differentiated competencies. These mostly voluntary added credentials are another form of professional regulation 466

that may be related to but not typically part of what is called licensure. Like most other professions (e.g., medicine, law), a psychology license to practice is generic and based on a demonstration of competence to practice at an entry level of the profession. As licensed professionals mature and become more specialized in the services they offer, they frequently seek postlicensure credentials that certify their competence to provide these specialized services. In addition, government programs in the United States, such as Medicare or Social Security; health insurance and managed care companies; and employers, such as hospitals and major corporations want to identify those licensed psychologists who have the skills and competencies necessary to provide the services they seek. One of the oldest sources of psotlicensure credentialing for psychologists in the United States and Canada is the American Board of Professional Psychology (ABPP). Founded in 1947, ABPP comprises 13 academies or specialty boards that develop standards for education and training in the specialty area of practice and administer examinations and award board certification to successful applicants (Packard & Simon, 2006). ABPP offers board certification in such areas as clinical, counseling, school, family, forensic, child, and organizational psychology. Another well-known postlicensure credentialing organization is the Council for the National Register of Health Service Providers in Psychology, popularly referred to as the National Register. Started in 1974, the National Register was created to assist government agencies and insurance providers by identifying those licensed psychologists who were competent to provide health services, such as diagnosis and treatment of mental illness. The board of the National Register created a set of standards for training and education (including licensure as a psychologist) that reflected preparation as a health service provider psychologist. Canada has a comparable organization known as the Canadian Register of Health Service Providers in Psychology. In recent years, several psychology licensing boards began to differentiate their licensees between those who were health service providers and those who were more generally trained psychologists (e.g., see Kentucky and Massachusetts in ASPPB, 2010a). The National

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Register has continued to offer its registry of health service provider psychologists and act as a referral service and to provide CE and other services to its registrants (Wise, Hall, Ritchie, & Turner, 2008). Numerous other groups and organizations offer postlicensure specialty credentialing for psychologists. Some are well established and have rigorous standards and procedures for awarding the certification they offer. Unfortunately, others have loose standards and qualifications and have a record of accepting or endorsing essentially anyone who applies who has the basic right to practice and an interest in the specialty practice area. Such enterprises that have less rigorous standards often are called “vanity boards” because they seem to exist to unfairly and inaccurately embellish the credentials of the practitioner. Clients, employers, or other purchasers of psychological services are encouraged to become familiar with the reputation of the organization providing the specialty certification before assuming it has value in identifying special competence.

Professional Mobility In the United States and Canada, regulation of professional conduct is delegated to the states and provinces and is not a federal activity. The resulting variability in licensure requirements across jurisdictions has presented a major difficulty for licensed psychologists, especially those trained years earlier, to obtain a new license to practice in another jurisdiction (DeLeon & Hinnefeld, 2006; DeMers et al., 2008). Unfortunately, many psychologists believe that licensure requirements are consistent across jurisdictions, or at least similar enough that they will not encounter any difficulty obtaining another license. Another complicating aspect of this problem is that licensure laws are hardly static and new requirements for specific coursework or postdoctoral supervised experience become impediments to relicensure for psychologists licensed earlier under different requirements. Unless the licensing law has special provisions for waiving certain requirements for individuals who hold a valid license in another jurisdiction, the licensing board is required to treat all applicants the same, whether they have practiced for 20 years or just completed all requirements for

licensure. Even when psychologists desiring relicensure have fulfilled the current requirements for licensure in the new jurisdiction, they still can have difficulty or may be precluded from getting licensed because of missing, retired, or deceased supervisors; lost records; or closed training programs. ASPPB, the ABPP, and the National Register each have created programs to facilitate the relicensure of competent and ethical psychologists (see Jonason, DeMers, Vaughn, & Reaves, 2003). As mentioned, ASPPB was founded to sponsor a uniform psychology licensure examination with the express purpose of promoting jurisdictional consistency and reciprocity (Carlson, 1978). Since the early 1990s, ASPPB has sponsored a reciprocity agreement among some jurisdictions that allows psychologists licensed in one state to be licensed easily in another participating jurisdiction without specific review of their individual qualification. By 2008, only 12 states had joined this agreement (DeMers et al., 2008) because most jurisdictions were reluctant to allow another jurisdiction to determine eligibility for licensure and independent practice in their jurisdictions. In 1998, ASPPB launched the certificate of professional qualification (CPQ) to overcome these objections from jurisdictions by focusing on endorsing licensure eligibility for individual psychologists who have met widely accepted standards (DeMers & Jonason, 2006). Under this program, a psychologist who is granted a CPQ is considered to have met all of the education and experiential requirements for licensure in participating jurisdictions. As of January 2010, 55 of the 64 jurisdictions in the United States and Canada have accepted, or are in the process of accepting, the CPQ as meeting some or most of the requirements for licensure. Individuals holding board certification from ABPP can obtain a waiver of some requirements for licensure, such as documenting EPPP scores, in approximately 35 states. In the late 1990s, the National Register began working with state licensing boards to allow psychologists listed in the National Register to qualify for expedited licensure. Currently, 49 jurisdictions in the United States and Canada use the National Register to expedite mobility. After documenting a valid CPQ, National Register, 467

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or ABPP credential, a psychologist typically has to submit only an abbreviated application for licensure, pass the local jurisprudence examination, and pay any required fees to be granted licensure in an accepting jurisdiction (Hall & Boucher, 2003). Another mobility-related challenge has been to provide a second licensing board with the necessary documentation required for licensure after years of practice in one jurisdiction. Typical problems include difficulty locating a former supervisor or the inaccessibility of training records because of a closed training site or a natural disaster. To preserve psychologists’ licensure-related records, ASPPB developed a credentials banking program where records required for licensure are primary source verified and stored electronically for later transmission to a licensing board. ABPP and the National Register also offer credentials banking services for early career psychologists. REGULATING PROFESSIONAL CONDUCT: DISCIPLINARY ACTIONS BY LICENSING BOARDS To fulfill their mandate of protecting the public, licensing boards evaluate claims of unethical conduct against licensees. This section reviews the standards that boards use in evaluating misconduct.

General Mandate All licensing boards in the United States and Canada have a legislative mandate to protect the public, including the authority and responsibility to investigate and take disciplinary action against licensees who violate the standards of professional conduct adopted by the licensing board. For example, the Declaration of Policy statement in the Minnesota statutes governing the practice of psychology states, The practice of psychology in Minnesota affects the public health, safety, and welfare. The regulations in sections 148.88 to 148.98 [of the Minnesota statutes governing the practice of psychology] protect the public from the practice of psychology by unqualified persons and from unethical or unprofessional conduct by persons licensed to practice psychology. 468

(Minnesota Board of Psychology Practice Act, 2010) The laws in the state of Washington go on to say, All disciplining authorities shall [emphasis added] adopt procedures to ensure substantially consistent application of this chapter, the Uniform Disciplinary Act, among the disciplining authorities listed in subsection (2) of this section. (Washington Revised Code, 2011) Thus, given their duty to serve the public welfare, legislative bodies have given to licensing boards the duty to adopt rules that govern the practice of psychology. These bodies also have given boards the duty to take action to enforce those rules by undertaking disciplinary action against a licensee who has violated the laws or the rules. In addition to adjudicating complaints or investigating misconduct, most psychology licensing laws give the board authority to evaluate a licensee’s physical, mental, or emotional fitness to practice. The APA Model Licensing Act (APA, 2010b) includes the following as a basis for suspension or revocation of a license to practice: “inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, misuse of drugs, narcotics, alcohol, chemicals, or any other substance, or as a result of any mental or physical condition” (p. 13). Some state and provincial psychology organizations offer impaired professional or colleague assistance programs that work, sometimes in collaboration with the licensing board, to identify or rehabilitate psychologists with emotional or substance abuse problems without going through normal disciplinary actions. These programs attempt to protect the public by ensuring that professionals who are impaired or at risk of being impaired will enter these programs and can be restored to practice. (More information on emotional competence can be found in Chapter 7 of this volume.)

Grounds for Disciplinary Action Licensing laws must articulate with some specificity the types of professional conduct or behavior that

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will constitute a violation to avoid a legal challenge that the law is too vague and thus unenforceable. The regulated professional has the right to know the standards of behavior and professional conduct expected of them. Therefore, licensing laws typically include a section that specifies the grounds or suspected behaviors that can trigger an investigation and that may result in a disciplinary sanction being imposed (Stromberg et al., 1988). Here, again, U.S. and Canadian licensing authorities vary in the specification of these grounds. Many U.S. jurisdictions articulate a list of common broad categories of violation like engaging in fraud, conviction of a felony, and demonstrating unprofessional conduct but then adopt either in statute or by regulation the APA Ethics Code or the ASPPB Code of Conduct. Canadian jurisdictions often adopt the CPA Ethics Code. Still other jurisdictions are precluded by state or provincial law from adopting the standards of any private organization like APA or CPA and thus often select sections from one or more codes of ethics or professional conduct and incorporate these into their local laws or regulations. The APA Model Licensing Act (APA, 2010b) is fairly typical of language contained in state licensing laws that have adopted the APA Ethics Code (and other professional standards of care) to articulate the grounds on which the board shall act. The grounds for discipline listed below from the APA Model Licensing Act are common: 1. fraud in applying for or procuring a license to practice psychology; 2. immoral, unprofessional, or dishonorable conduct as defined in the rules and regulations promulgated by the Board; 3. practicing psychology in such a manner as to endanger the welfare of clients or patients; 4. conviction of a felony (a copy of the record of conviction, certified to by the clerk of the court entering the conviction shall be conclusive evidence); 5. conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients; 6. harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;

7. engaging in sexual intercourse or other sexual contact with a client, patient or the individual who is the direct recipient of psychological services (where services are provided to an organization, client refers only to the individuals who are direct recipients of psychological services); 8. use of repeated untruthful or deceptive or improbable statements concerning the licensee’s qualifications or the effects or results of proposed treatment, including functioning outside of one’s professional competence established by education, training, and experience; 9. gross malpractice or repeated malpractice or gross negligence in the practice of psychology; 10. aiding or abetting the practice of psychology by any person not licensed by the Board; 11. conviction of fraud in filing Medicare or Medicaid claims or in filing claims to any third party payor (a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence); 12. exercising undue influence in such a manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party; 13. the suspension or revocation by another state of a license to practice psychology (a certified copy of the record of suspension or revocation of the state making such a suspension or revocation shall be conclusive evidence thereof); 14. refusal to appear before the Board after having been ordered to do so in writing by the executive officer or chair of the Board; 15. making any fraudulent or untrue statement to the Board; 16. violation of the APA Ethical Principles of Psychologists and Code of Conduct and other standards adopted in the rules and regulations of the Board; and 17. inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, misuse of drugs, narcotics, alcohol, chemicals, or any other substance, or as a result of any mental or physical condition. (pp. 12–13) Review of this list suggests that “good moral character” not only is a requirement to obtain a 469

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license but also can be the basis for losing one’s license to practice if the licensed professional is found to have engaged in fraud, harassment, misrepresentation or deception, or conviction of a serious crime. Psychology licensing laws also often contain additional grounds for disciplinary action that recognize the responsibilities of any licensed professional or health care provider or that empower the board to compel a licensee to follow other state laws related to the practice of psychology. Such requirements include undertaking disciplinary action when a licensee has (a) failed to report abuse or neglect of a minor or vulnerable adult, (b) failed to report a specific threat of violence against an identified or identifiable person, (c) failed to report sexual contact between a health provider and a patient, (d) aided or abetted the unlicensed practice of psychology, (e) failed to cooperate with an investigation of the licensing board, or (f) received discipline in any other jurisdiction for any violation of law or rule in that jurisdiction. (More information on some of these legal and ethical responsibilities, like duty-towarn requirements, can be found in Chapter 14 of this volume.)

Regulating the Unlicensed Practice of Psychology Because a major purpose of licensure laws is to control who can practice psychology or use the title psychologist, practicing psychology without a license is a specific violation of most psychology licensing acts. Regulating unlicensed practice also creates some particularly vexing issues. Given the broad definition of the practice of psychology described in this chapter, many other health professionals engage in activities or provide services that are similar to those of psychologists. Interviewing, counseling, practicing psychotherapy, designing interventions, and consulting are just a few examples. How can a psychology licensing board regulate the practice of psychology when other professionals, such as marriage and family therapists, professional counselors, psychiatric nurses, and psychiatrists, have an overlapping scope of practice? Most psychology licensing acts deal with such overlap in services through the exemptions from licensure. 470

Individuals holding a valid license in another regulated profession and operating within their legislatively approved scope of service may engage in activities contained in the definition of the practice of psychology as long as they do not call themselves psychologists. There is a further complication, however. Is it permissible for one of these other licensed professionals to describe the services they provide as “psychological“? Can a counselor, a nurse, or a psychiatrist offer a client a “psychological assessment“? Most licensing laws would seem to preclude use of that description, despite the rather heated battles in some states surrounding such scope of practice issues. The clearest examples of the unlicensed practice of psychology are those cases in which an individual who is not licensed as a psychologist or any other regulated profession uses the terms psychologist, psychology, or psychological to describe who they are or what they do. But even here there often is a problem regulating the profession. In most states and provinces, the authority of the psychology licensing board is limited to granting licenses to qualified applicants and restricting or revoking licenses for those already licensed who are found to have violated the licensing law. In general, licensing boards have no jurisdiction over those who are not licensed, and they do not have the power to take any action against someone who is practicing psychology without a license. What most licensing boards can do is issue a cease-and-desist order to the individual and refer the matter to a local district attorney for prosecution. Licensing boards are given a great deal of latitude in determining whether action by licensees is or could be harmful to the public and are mandated by law to take action when they have reason to believe that such action has occurred. Some licensing boards have little authority over the actions or conduct of other licensed professionals and limited powers to deal with the unlicensed practice of the profession. Some jurisdictions still have laws that protect only the use of the title “psychologist,” meaning anyone can engage in the practice of psychology as long as they do not identify themselves as psychologists or define their services as psychological. Most jurisdictions have revised the earliest

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versions of their licensing laws from only title protection to so-called practice acts, whereby the board can act against anyone providing psychological services without a psychology license unless exempted by the law (Rétfalvi & Simon, 1996). PROCEDURES IN DISCIPLINARY ACTION Although the psychology licensing boards have a mandate to act on complaints about professional misconduct, taking disciplinary action against a licensee requires balancing the rights of society for protection and the rights of the complainant to have their concerns addressed, on the one hand, with the rights of the accused to receive a fair hearing and an impartial decision on the charges, on the other. A license to practice a profession is a legally protected piece of private property. Any attempt by the state to strip an individual of such property requires that the individual be afforded due process protections. According to DeMers (1998) and Stromberg et al. (1988), most state and provincial laws provide some form of the following due process rights: 1. Adequate notice of the charges 2. The right to a hearing before a fair and impartial hearing panel 3. An opportunity to present evidence and confront witnesses 4. A decision that is based solely on the evidence 5. A record of the proceedings 6. A process for appealing the decision Any formal disciplinary action or proceeding by a psychology licensing board must afford the licensed psychologist these due process protections or risk having the decision of the board overturned on appeal for violation of these rights. The specific steps involved in disciplinary action vary widely from jurisdiction to jurisdiction and are difficult to describe with any specificity or uniformity (Van Horne, 2004). In the United States, most psychology licensing boards operate within the legal realm of administrative law, and the process must comply with the administrative procedures act that governs such action by the state (Stromberg et al., 1988). In Canada, the regulatory bodies operate according to a set of rules or governing bylaws that

typically are submitted to the provincial government for approval. The description of the disciplinary process that follows is generic in that it describes the most basic elements of the disciplinary procedures used by most psychology boards and acknowledges some of the more common variations. Each jurisdiction, however, follows an almost unique set of procedures based on its state or provincial legal requirements, administrative context, and available resources. In most instances, a disciplinary action against a licensed psychologist begins with receipt of a complaint. Despite the common misperception among licensed psychologists that complaints are rampant (Williams, 2001), a survey of all licensing boards conducted by Van Horne (2004) found that the number of complaints filed against psychologists was relatively low. Van Horne reported that the number of complaints reported to ASPPB equaled 2% of the number of all licensees in each year from 1996 to 2001 when these numbers were averaged across all jurisdictions reporting. Van Horne cautioned that this should not be interpreted as 2% of all licensed psychologists receive complaints each year because some individuals receive multiple complaints and because some individuals hold licenses in multiple jurisdictions and one complaint can be acted on by more than one jurisdiction. A complaint typically comes from a current or former client or patient, but it may come from another psychologist, a member of another licensed profession, an organization, or an employer. Most licensing boards will accept only written complaints from identifiable complainants to afford the respondent psychologist due process. Also, most laws allow for the board to bring an action under investigation on its own motion, meaning the board itself can be the source of the complaint. For example, it is not uncommon, during the course of an investigation, for the board to recognize that inadequate record keeping has occurred, even though the original complaint did not have anything to do with records. In that instance, a failure to maintain adequate records might be added to the complaints being investigated. The second step is some kind of process for determining that the behavior alleged in the complaint, if found to be true, would constitute a basis 471

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for disciplinary action. In this case, the grounds for disciplinary action take on a crucial role because the board has determined in statute or regulation the behaviors that can constitute a violation of the law. In jurisdictions that have not adopted a specific ethics code and have created a list of grounds for disciplinary action, it is often possible for a complaint to describe a behavior that may be unethical but that does not fall under one of the recognized grounds for discipline. Jurisdictions vary widely in terms of what persons or group may make the determination of probable cause or, more accurately, ensure that a complaint rises to the level of a potential violation. In some jurisdictions, the full board or a subcommittee of the board in a closed meeting carries out this process; in other jurisdictions, a separate office or branch of state government employs attorneys and investigators who handle complaints about professional misconduct. Once a complaint is determined to have merit, an investigation is opened and again the process varies across jurisdictions. In some states, board members conduct an investigation; in other states, board staff, a board member (who will then no longer be part of the decision-making process), or the office of the attorney general conducts the investigation. The investigation typically involves issuing subpoenas for relevant records and interviews with the complainant, the licensee, and, possibly, other witnesses. In many jurisdictions, the term investigation is restricted to the process that occurs after reasonable cause has been determined by an initial review of the complaint and an initial response or interview of the responding psychologist. In her 2004 study, Van Horne reported that the number of investigated complaints ranged from 46% to 72% of total complaints per year when averaged across all reporting jurisdictions from 1996 to 2001. Once the investigation is completed, a decision has to be made about how to proceed. This decision may be made through a review by the full board; a subcommittee of the board; or a judge, attorney, or other staff in the office of professional regulation or discipline. The reviewing body needs to decide whether to close the disciplinary action because of lack of evidence that the psychologist violated the law or whether to proceed to some resolution of the 472

complaint. Van Horne (2004) found that approximately 18% to 38% of the investigated complaints reported by jurisdictions resulted in a finding of no violation. In cases in which the investigation suggests that a violation may have occurred, again a number of options are possible, including negotiation of a voluntary settlement (often referred to as an agreed order) or issuing notice of a formal hearing. Voluntary settlements may be reportable to the ASPPB Disciplinary Data System (DDS) and other mandated reporting systems because they involve some restriction on the licensee’s practice or they may be nonreportable in the case of a warning, a confidential reprimand, or an education directive. According to Van Horne (2004), the percentage of investigated complaints that resulted in nonreportable actions ranged from 12% to 19% from 1996 to 2001. A formal hearing is ordered or required most typically when the allegations made in the complaint are serious and found to be credible by the investigating authority but are disputed by the respondent. A formal disciplinary hearing can be conducted in a number of formats (DeMers, 1998). The oldest and least often used process in the 21st century is a hearing before the full board of psychology in which case the board members act as both judge and jury. The full board rules on motions, cross-examines witnesses, and then votes on the final decision; if appropriate, it assigns a penalty. In another format, a lawyer or administrative law judge (ALJ) acts as the judge in a hearing conducted before the board members who hear testimony and vote as a jury on a decision and then determine a penalty. The most common format used in the 21st century is a hearing conducted entirely before a hearing officer (usually an ALJ), outside the presence of the board members. The hearing officer then applies the legal standard to the evidence presented and drafts a report to the board containing the findings of fact (i.e., a statement of what evidence was most credible), the conclusions of law (i.e., whether these findings constitute a violation of the licensing act), and a recommended penalty. The board receives this report and can either accept, modify, or reject it, although any modification or rejection of the ALJ’s findings or recommendations must be formed on the

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evidence presented and often brings further scrutiny or legal review of the board’s actions in the case. Once the licensing board has found or accepted the recommendation of a hearing officer that a violation of the psychology act has occurred, then the board has the authority and duty to assign an appropriate penalty or remedy. The main purpose of the penalty or remedy is to protect the public from any future harm as a result of the licensee’s incompetent or unethical conduct. Thus, the possible consequences that a board can assign range from a reprimand to revocation of the license to practice (DeMers, 1998). Other remedies available to the board between these two extremes include mandatory education on a specific topic, supervised practice, restriction on the license (e.g., only institutional practice, no work with minors or members of the opposite sex), probation, and suspension. Different jurisdictions sometimes use different words to mean the same thing (e.g., reprimand and censure, voluntary settlement and agreed order). In some jurisdictions, the board may impose a fine either as a punishment or as a method of recouping the cost of adjudicating the complaint. In some jurisdictions, if appropriate, psychologists may be ordered to undergo mental health or substance abuse assessment or treatment. Disciplinary actions reported to ASPPB’s DDS include a public reprimand or any action involving a restriction on the license, such as supervision, probation, suspension, or revocation. These penalties may be applied as part of an agreed order or negotiated settlement or as the result of a formal disciplinary hearing. The survey by Van Horne (2004) revealed an average of 5% to 9% of all complaints filed with psychology licensing boards from 1996 to 2001 resulted in actions reported to the DDS, meaning that in a given year, between 0.1 and 0.2% of all licensees are disciplined. In most disciplinary cases, boards may apply a combination of sanctions to adequately address the lack of skill or judgment revealed by the findings. It is quite typical for a sanction to include a reprimand, a fine, mandatory education, or training and a period of supervised experience. In cases in which the board finds significant harm to a client or a pattern of serious misconduct or incompetence, it is

more likely to suspend the license for some significant period of time or revoke the license altogether. REPORTING DISCIPLINARY ACTIONS AND THE CONSEQUENCES THAT CAN RESULT Psychology licensing boards in the United States are required to report all public disciplinary sanctions to the Healthcare Integrity and Protection Data Bank (HIPDB) and to the National Practitioner Data Bank (NPDB) in accordance with passage of two separate pieces of federal legislation: the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the Health Care Quality Improvement Act of 1986. Both the HIPDB and the NPDB are intended to promote quality care by decreasing fraud and abuse in health insurance and health care delivery and by providing a national disciplinary data bank for all regulated health care professionals. The legislation creating the NPDB is more sweeping than HIPDB in that it requires reports of any adverse actions taken by hospitals and professional societies with peer review as well as all licensure and certification sanctions, exclusions from participation in federal and state health care programs, criminal convictions, and civil judgments related to health care malpractice. In addition, all psychology licensing boards in the United States and Canada are required to report all public disciplinary actions to ASPPB’s DDS. ASPPB maintains a permanent record of these disciplinary actions taken against psychologists and supplies the information to ASPPB member boards upon inquiry. The DDS was established in 1983 to allow ASPPB member boards to share information with other ASPPB member boards regarding the disciplinary actions taken against their licensees. Using historical reports of disciplinary sanctions, the DDS includes entries going back to 1974. The system helps the member boards protect the public by ensuring that a jurisdiction reviewing the application of a psychologist will know of previous disciplinary sanctions in other jurisdictions. Currently, only ASPPB member boards may query the system. The ASPPB’s DDS received 4,399 disciplinary reports from licensing boards in all member jurisdictions from 1974 to 2009. Because each report or 473

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case often contained multiple violations or reasons for disciplinary action, the total number of reasons for disciplinary action reported since 1974 equals 7,460. The 10 most commonly reported reasons for disciplinary action from 1974 to 2009 are listed in Table 18.1. From 2005 to 2009, jurisdictions have reported a total of 1,072 actions, an average of 214 per year. Table 18.2 provides the most frequently occurring reasons for disciplinary action for the last 5 years of reports. Interestingly, in the period from 2005 to 2009, the list from Table 18.1 of the 10 most commonly reported reasons has changed, and even those reasons that remain on the list have shifted in their order of frequency. In the last 5 years, unprofessional conduct has become the most frequent cause of disciplinary action (193), followed by sexual misconduct (124), failure to maintain adequate records (116), negligence (107), conviction of a crime (105), nonsexual dual relationships (103 or less), improper or inadequate supervision or delegation (81 or less), and substandard or inadequate care TABLE 18.1 Number of Times a Reason for Disciplinary Sanction Was Included in Disciplinary Reports, 1974–2009 Reason for disciplinary action Sexual misconduct Unprofessional conduct Nonsexual dual relationship Negligence Conviction of crime Failure to maintain adequate or accurate records Improper or inadequate supervision or delegation Substandard or inadequate care Incompetence Breach of confidentiality Other (the combined total from 72 remaining reasons)

Number of times 795 791 494 473 400 335 247 242 234 206 3,243

Note. Results tabulated on the basis of 4,399 total reports of disciplinary actions submitted to the Association of State and Provincial Psychology Boards Disciplinary Data System. Each action could contain multiple reasons for discipline such that the total number of reasons reported far exceeds the total number of actions. 474

TABLE 18.2 Number of Times a Reason for Disciplinary Sanction Was Included in Disciplinary Reports, 2005–2009 Reason for disciplinary action Unprofessional conduct Sexual misconduct Failure to maintain adequate or accurate records Negligence Conviction of crime Nonsexual dual relationship Improper or inadequate supervision or delegation Substandard or inadequate care Failure to comply with continuing education or competency requirements Testimony without adequate foundation Other (the combined total from 72 remaining reasons)

Number of times 193 124 116 107 105 94 72 67 40 30 1,098

Note. Results tabulated on the basis of 1,072 total reports of disciplinary actions submitted to the Association of State and Provincial Psychology Boards Disciplinary Data System. Each action could contain multiple reasons for discipline such that the total number of reasons reported far exceeds the total number of actions.

(76 or less). Thus, reports of sexual misconduct have decreased relative to unprofessional conduct, as a fairly broad category, and failure to maintain adequate records has increased in relative frequency. According to Table 18.3, of the 1,072 actions taken by licensing boards from 2005 to 2009, 246 (or 23%) resulted in reprimands, 221 (21%) in probation of some sort, 148 (14%) suspension, and 95 (9%) in revocation of the license to practice. The remaining disciplinary sanctions typically involved some type of remedial action (e.g., supervision, mandated CE) without further restriction of the license. Van Horne (2004) documented the low probability that a licensed psychologist will be the subject of a complaint that will result in a disciplinary sanction. For example, her data indicated that in 2001 less than 0.13% of all licensed psychologists had disciplinary reports submitted to ASPPB’s DDS. However, for those few who do have reportable discipline, the consequences are often serious, ranging from costly fines or mandatory CE to an interruption in the ability to

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TABLE 18.3 Number of Disciplinary Actions per Year Since 2005 and Type of Sanction Imposed Year

2009

2008

2007

2006

2005

Total reported actions Type of sanction Revocations Suspensions Probations Reprimands

178

229

211

230

224

12 21 28 37

17 26 41 41

20 21 42 58

20 39 52 54

26 41 58 56

Note. Each disciplinary action could contain multiple sanctions, including other sanctions not listed, such as supervision, mandatory continuing education, and so on. Therefore, the total number of sanctions reported above does not equal the total number of disciplinary actions reported.

practice either temporarily (i.e., suspension) or permanently (i.e., revocation). Furthermore, these direct costs of being sanctioned by a licensing board may be only a part of the total cost when one considers the reports that go to HIPDB and NPDB and ultimately may affect one’s ability to serve on managed care panels, retain hospital privileges, or attract referrals from colleagues. The emotional toll and damage to professional reputations are likely incalculable. Even for those unfortunate few who receive complaints (approximately 2% of all licensees in any year, according to the Van Horne study) and whose cases are determined to be without merit either before or after an investigation, the anxiety, the time lost from other pursuits, and the cost to defend oneself present an unpleasant and expensive burden (Welch, 2001; Williams, 2000, 2001). Van Horne (2004) has suggested that both regulators and professional societies can play an important role in reducing the fear and misinformation about disciplinary actions by licensing boards and in offering clear standards of appropriate professional conduct to reduce the likelihood of receiving a disciplinary sanction. Licensing boards and ASPPB should report the number of disciplinary complaints, investigations, and actions using a more consistent format and more consistent nomenclature to better educate the profession and the public about realities of this aspect of professional regulation. Professional societies and organizations can assist their members to protect against unfair allegations

when they develop and promulgate clear and unambiguous ethical standards and codes of conduct along with documented practice standards of care. These tools provide the best foundation and guide to the delivery of competent and ethical services and also are the best protection against unwarranted or frivolous complaints. (More information on activities of professional associations in reducing misconduct and allegations of misconduct can be found in Chapter 19 of this volume.) MALPRACTICE AND OTHER FORMS OF ACCOUNTABILITY Clients or patients receiving services from a licensed professional are always free to pursue legal redress to any complaint about incompetent practice through a lawsuit or criminal complaint, which may be filed either in combination with or separate from a complaint to a licensing board. Stromberg et al. (1988) noted that lawsuits and criminal complaints against psychologists and other mental health providers were rare before 1970. They speculated that this lack of complaints and legal scrutiny most likely resulted from the stigma that was attached to admitting to being a mental health patient as well as the perception that although psychologists did little good, they also did little harm by delivering poor service. Given changes in society, including scandals surrounding poor treatment in mental institutions and less stigma attached to seeking psychotherapy, 475

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lawsuits against mental health providers became more common after 1970 although they remain much less common than lawsuits against physicians (Stromberg et al., 1988). The most common form of lawsuit brought against a psychologist is a claim of malpractice. In a malpractice lawsuit, the complainant (or their legal advocate) has decided to seek redress in a civil proceeding using the law of torts, which focuses on seeking financial compensation from one individual because of negligent or intentional harm inflicted by another person or entity (e.g., business or organization). For licensed psychologists, a malpractice suit is a claim by a client or former client that the psychologist provided negligent or incompetent care that failed to meet the standards of care typically exercised by other psychologists and that resulted in demonstrable harm to the client. Theoretically, the goal of a malpractice suit is to deter future bad conduct or shift financial responsibility for curing the harm and not to decide guilt or innocence or assign blame. However, litigants in malpractice lawsuits often seem motivated by a desire for justice, monetary compensation, or both. According to Stromberg et al. (1988), basic standards or elements must be present to prevail in a malpractice case. An individual complainant can recover monetary compensation in a malpractice lawsuit if they can demonstrate the following elements were present: 1. respondent (psychologist) owed a duty to the complainant to meet a reasonable standard of care; 2. respondent violated or breached that duty; 3. respondent’s violation or breach of their duty constituted the proximate or immediate cause of damage or injury to the complainant; 4. the complainant was not also partly responsible for the breach (i.e., contributory negligence); and 5. respondent was not immune from suit for some reason (e.g., applicable Good Samaritan rules). In a disciplinary hearing, it is a sufficient cause of action to show that the professional violated the accepted standard of care; however, in a malpractice suit, the complainant has the additional burden to demonstrate harm resulting from that violation by the professional. Also, an action by a psychologist 476

could result in both a licensing board complaint and a malpractice suit. In fact, a disciplinary action by a licensing board could be used as strong evidence that one of the elements for malpractice was met, specifically, that the psychologist failed to meet the minimum standards of the profession. Most state civil procedures such as malpractice specify time limits within which an action must be brought. These statutes of limitation vary from state to state and by type of violation within a jurisdiction. Licensed psychologist are encouraged to become familiar with the general provisions around statutes of limitation to protect themselves by maintaining adequate records for the period of time any client could possibly bring an action against them. Psychologists working with clients who are legal minors should also be aware that the statutes of limitation in many jurisdictions do not begin until the child reaches the age of majority. Data on frequency of malpractice cases are proprietary and professional liability insurers typically do not release these data. However, according to Stromberg et al. (1988), the most common reasons cited for malpractice claims against psychologists include sexual improprieties and other inappropriate multiple relationships with clients, breach of confidentiality, negligent or incompetent care, and failure to warn about or try to prevent client suicide or client harm to others. However, suits for sexual impropriety have decreased in recent years. (More information on professional liability can be found in Chapter 19 of this volume.) In addition to malpractice, a client can bring a criminal case against a licensed professional when the violation of the standard of care is claimed to be intentional, although such cases are rare. For example, a psychologist who held a patient in an attempt to implement an involuntary hospitalization procedure that was initiated illegally could be charged with wrongful imprisonment. Similarly, a psychologist who failed to report child abuse, as required by law, might be guilty of a misdemeanor, and psychologists who systematically and deliberately bill insurance companies for services that were not provided could be charged with insurance fraud. In a criminal proceeding, the client issues a complaint, but the action is then prosecuted by the state. The rules of evidence, burden of proof, and possible

The Regulation of Professional Psychology

penalties (e.g., incarceration) likely will change when a criminal rather than civil action is pursued. Interestingly, the claimed violations of the standard of care or harm that precipitate the complaint often are quite similar in civil and criminal proceedings (e.g., sexual impropriety or breach of confidentiality). The purported difference between a criminal and civil action typically is determined by whether the individual is believed to have acted carelessly but unintentionally as opposed to intentionally or with reckless disregard of the inherent risks. Regardless of whether a licensed professional is sued for malpractice or is charged with a criminal violation, a crucial element of the case will be to establish the recognized standard of care. Here the codes of ethics and professional conduct and the practice guidelines and standards issued by professional societies—and adoption of these same guidelines and standards by a licensing board as the accepted standard of care—become crucial to either party in successfully prevailing in the lawsuit. If a licensing board has formally adopted a code of conduct or standard of care (e.g., APA, 2007), then its applicability likely carries considerable weight. However, in all types of complaints against a licensed professional, the case likely will revolve around the testimony of expert witnesses, each trying to establish the recognized and accepted duty of the professional in the disputed situation. Suits often are settled out of court to avoid prolonged and costly litigation. FUTURE CHALLENGES IN REGULATING PROFESSIONAL PSYCHOLOGY No vibrant profession is static, so change in psychology, like all other professions, is inevitable. Although many subtle changes happen constantly, significant shifts also are occurring in the way psychologists are trained and the way psychology is practiced that complicate effective regulation of the profession in the years ahead (DeMers et al., 2008). Two of the recognized and potentially most challenging changes are discussed briefly in the next sections.

Distance Learning The past 2 decades have seen an explosion in the availability of higher education courses and even

whole degree programs using innovative technologies that use of web-based instruction (Distance Education, 2011). This movement away from reliance on a physical campus to a virtual campus where students are linked via the Internet with professors, other students, and the resources necessary for learning presents huge benefits in terms of greater access to instruction as well as significant concerns about quality control and the effectiveness of using such instructional methods. Distance education is a broad label that includes many different modalities and models of instruction, which make assessing quality a complicated task (APA, 2002; Murphy, Levant, Hall, & Glueckauf, 2007). Recognizing the diversity of web-based instruction and its constant evolution, regulations specifying education requirements for licensure in terms of distance education seem challenging, at best. The rapid expansion of distance education programs requires educators to redefine quality assurance measures and requires regulators to determine the appropriate use of online instruction in professional preparation (DeMers et al., 2008). Regulators may rely heavily on accrediting agencies to monitor the appropriateness of the relevant instructional delivery mechanisms. For example, regional accrediting organizations have established best practice statements regarding distance education and have warned potential students about the difference between recognized accreditation status and other forms of certification or approval (Council of Regional Accrediting Commissions, 2003). As technology advances, it is probable that distance learning will continue to flourish such that instructors, students, and the education forum could become a virtual reality disconnected from even a specific institution of higher education. This shift to greater use of distance education leads to questions about on-campus residency requirements. The APA Guidelines and Principles for Accreditation (Section A.4.) requires of each student a minimum of 3 full-time academic years of graduate study—at least 2 of which must be at the institution from which the doctoral degree is granted and at least 1 year of which must be in full-time 477

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residence or the equivalent thereof. (APA, 2009) One of the stated purposes of the 1-year, full-time minimum residence requirement is to permit faculty, training staff, supervisors, and administrators to assess student competence. Given growing concerns about the lack of communication between practicum supervisors, internship sites, and graduate programs, offering greater flexibility in meeting residency requirements could call into question the integrity of doctoral training (Johnson et al., 2008). Another challenge for accreditation panels as well as regulators is the likelihood that transcripts do not necessarily accurately or completely reflect the manner of the instruction. Because of the popularity of psychology as a profession and the availability of doctoral training programs in psychology at institutions emphasizing web-based instruction, some licensing boards are discussing whether professional psychology can be taught effectively in academic programs that deliver instruction predominantly via web-based courses without a traditional residency requirement. However, most licensing laws currently specify that at least 1 academic year of the graduate program must be completed while physically present at the regionally accredited institution of higher education that is awarding the academic degree required for licensure (ASPPB, 2010a).

Telepractice Psychology licensing laws were developed and enacted in an era when most psychologists delivered psychological services to a client, patient, or organization within the boundaries of a single state or province. The purpose of licensing laws was to protect the citizens and institutions of a single jurisdiction from unqualified or unethical professionals offering services in that jurisdiction. In the 21st century, licensed psychologists and other providers of mental health services are either providing or thinking about providing psychological services across jurisdictional boundaries because of client mobility, their own mobility, or innovative practice opportunities. Such practice across jurisdictional boundaries involving the use of the Internet or other electronic 478

communication methods presents unique challenges as yet unaddressed by most psychology licensing laws (APA, Practice Organization, 2010). Whether the term used is telehealth, telepsychology, or e-therapy, the use of telecommunications and information technology to provide access to health assessment, diagnosis, intervention, and information across distance is a reality (Maheu & Gordon, 2000). This use of technology generally does not refer to occasional phone conversations or emergency phone contacts with an ongoing client with whom there is regular contact. Instead, the controversy focuses on using telepsychology as the primary means of delivering services and on the issue of frequently using electronically based media, such as the Internet, for clinical communications with patients. The challenges of effectively regulating such electronic practice seem to be almost insurmountable without the requirement of licensure in every jurisdiction in which services are provided. The reality of telepractice is that a psychologist can provide services without physically entering another jurisdiction and possibly without knowing the actual location of the consumer receiving services (Reed, McLaughlin, & Milholland, 2000). Such innovations in service provision challenge traditional regulatory mechanisms and thus require creative approaches to consumer protection. Although this rapidly evolving method of professional practice raises significant risks to consumers from misconduct, it also allows for significant improvements in access to care when delivered competently and appropriately. Licensing boards have no desire to impede the delivery of effective services, but they do have a legal responsibility to ensure that these innovative service delivery methods are performed in a manner that protects the public from harm. In this developing area of practice, psychologists will need to be not only aware of their ethical, regulatory, and legal obligations but also informed about newly emerging standards of care for such practice (APA, Practice Organization, 2010; Glueckauf, Pickett, Ketterson, Loomis, & Rozensky, 2003). A recent article from the APA, Practice Organization (2010) raised a number of persistent

The Regulation of Professional Psychology

questions, as yet mostly unanswered. What part of the practice of psychology can be competently and ethically delivered via largely electronic means? Should the jurisdictional board where the psychologist is practicing or the jurisdictional board where the client receives services, or both, regulate the practice? What records are kept, by whom and for how long? How is accurate and secure identification of the client and the professional established? How will an emergency be handled? What are the limits of confidentiality? Will professional liability insurance cover practice across jurisdictional lines? The questions are many for both the psychologist and the licensing entity. The profession and the regulatory agencies will need to develop and then embrace consistent regulations for telepractice services if practitioners can be reasonably expected to comply (DeMers et al., 2008). (More information on telemedicine can be found in Volume 2, Chapter 10, this handbook.) CONCLUSION Regulation of the profession of psychology is an important but challenging endeavor with a relatively short history. It involves a complex interplay between the policies and standards adopted by recognized professional societies to guide ethical and competent practice and the laws, rules, and regulations enacted by state and provincial governments to protect its citizens from harm at the hands of an unqualified or unethical professional. Like any profession, psychology is changing and evolving over time. The wise professional will stay abreast of the latest evidence to support new assessment tools or treatment procedures as well as the adoption of new legal and ethical expectations that form the basis for the recognized standards of care required of the licensed psychologist. Innovative practice opportunities like telepractice and persistent challenges like maintaining professional competence present regulatory obligations that the responsible professional will understand and respect. This chapter has sought to increase that understanding and raise awareness of potential pitfalls that await the unwary practitioner.

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Ford, G. G. (2006). Ethical reasoning for mental health professionals. Thousand Oaks, CA: Sage. Fouad, N. A., Grus, C. L., Hatcher, R. L., Kaslow, N. J., Hutchings, P. S., Madson, M. B., . . . Crossman, R. E. (2009). Competency benchmarks: A model for understanding and measuring competence in professional psychology across training levels. Training and Education in Professional Psychology, 3(4, Suppl.), S5–S26. doi:10.1037/a0015832 Glueckauf, R. L., Pickett, T. C., Ketterson, T. U., Loomis, J. S., & Rozensky, R. H. (2003). Preparation for the delivery of telehealth services: A self-study framework for expansion of practice. Professional Psychology: Research and Practice, 34, 159–163. doi:10.1037/0735-7028.34.2.159 Hall, J. E., & Boucher, A. (2003). Professional mobility: Multiple choices, Multiple opportunities. Professional Psychology: Research and Practice, 34, 463–467. doi:10.1037/0735-7028.34.5.463 Health Care Quality Improvement Act, Title 42, U.S.C., §§ 11101–11152 (1986). Health Insurance Portability and Accountability Act, Pub. L. No. 104–191, 110 Sta. 1936 (1996).

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Kelly, C., & Crevette, A. (2005). Correlation between reported pre-licensure criminal conviction and postlicensure disciplinary action: An exploratory study. Retrieved from http://www.ncsbn.org/Charlene_ Kelly_05_Project.pdf Knapp, S., & Sturm, C. (2002). Ethics education after licensing: Ideas for increasing diversity in content and process. Ethics and Behavior, 12, 157–166. doi:10.1207/S15327019EB1202_3

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Maheu, M., & Gordon, B. (2000). Counseling and therapy on the Internet. Professional Psychology: Research and Practice, 31, 484–489. doi:10.1037/0735-7028. 31.5.484 Marinopoulos, S., Dorman, T., Ratanawongsa, N., Wilson, L., Ashar, M., Magaziner, J., . . . Bass, E. (2007). Effectiveness of continuing medical education. Retrieved from http://www.ncbi.nlm.nih.gov/book shelf/br.fcgi?book=erta149 Minnesota Board of Psychology Practice Act, §§ 148.88– 148.98 (2010). Retrieved from https://www.revisor. mn.gov/statutes/?id=148.88 Murphy, M., Levant, R., Hall, J., & Glueckauf, R. (2007). Distance education in professional training in psychology. Professional Psychology: Research and Practice, 38, 97–103. doi:10.1037/0735-7028.38.1.97 Neimeyer, G. J., & Taylor, J. M. (2011). Continuing education in psychology. In J. Norcross, G. Vandenbos, & D. Freedheim (Eds.), History of psychotherapy: Continuity and change (2nd ed., pp. 663–672). Washington, DC: American Psychological Association.

Reed, G., McLaughlin, C., & Milholland, K. (2000). Ten interdisciplinary principles for professional practice in telehealth: Implications for psychology. Professional Psychology: Research and Practice, 31, 170–178. doi:10.1037/0735-7028.31.2.170 Rehm, L. P., & Lipkins, R. H. (2006). The Examination for Professional Practice in Psychology. In T. J. Vaughn (Ed.), Psychology licensure and certification: What students need to know (pp. 39–53). Washington, DC: American Psychological Association. doi:10.1037/11477-004 Rétfalvi, N., & Simon, N. (1996). Licensing, certification, registration, chartering, and credentialing. In L. Bass, S. T. DeMers, J. Ogloff, C. Peterson, J. Pettifor, R. Reaves, . . . R. M. Tipton (Eds.), Professional conduct and discipline in psychology (pp. 39–51). Washington, DC: American Psychological Association. doi:10.1037/11101-003 Roberts, M. C., Borden, K. A., Christiansen, M. D., & Lopez, S. J. (2005). Fostering a culture shift: Assessment of competence in the education and careers of professional psychologists. Professional Psychology: Research and Practice, 36, 355–361. doi:10.1037/0735-7028.36.4.355

Neimeyer, G. J., Taylor, J. M., & Wear, D. M. (2009). Continuing education in psychology: Outcomes, evaluations, and mandates. Professional Psychology: Research and Practice, 40, 617–624. doi:10.1037/ a0016655

Rodolfa, E., Schaffer, J., & Webb, C. (2010). Continuing education: The path to life-long competency? Professional Psychology: Research and Practice, 41, 295–297.

Newton, L. H. (1988). Lawgiving for professional life: Reflections on the place of the professional code. In A. Flores (Ed.), Professional ideals (pp. 47–56). Belmont, CA: Wadsworth.

Rosen, G. A. (2000). Research digest: The Examination for Professional Practice in Psychology (EPPP) (3rd ed.). Montgomery, AL: Association of State and Provincial Psychology Boards.

New York Education Law, Article 153: Psychology, § 7605.2 (2010).

Rosen, G. A., Reaves, R. P., & Hill, D. S. (1989). Reliability and validity of psychology licensing exams: Multiple roles and redundant steps in development and screening. Professional Psychology: Research and Practice, 20, 272–274. doi:10.1037/0735-7028.20.4.272

Oklahoma Psychologists Licensing Act, Title 59, Part 1353.6 (2003). Oregon Revised Statutes, Title 52, Chapter 675.010–150: Psychologists (2009). Packard, T., & Simon, N. (2006). Board certification by the American Board of Professional Psychology. In T. J. Vaughn (Ed.), Psychology licensure and certification: What students need to know (pp. 117–126). Washington, DC: American Psychological Association. doi:10.1037/11477-010 Papadakis, M. A., Teherani, A., Banach, M. A., Knettler, T. R., Rattner, S. L., Stern, D. T., et al. (2005). Disciplinary action by medical boards and prior behavior in medical school. The New England Journal of Medicine, 353, 2673–2682. doi:10.1056/ NEJMsa052596 Pennsylvania Professional Psychologists Practice Act, 63 P.S. §§ 1201–1218 (2010). Retrieved from http:// www.portal.state.pa.us/portal/server.pt/community/ state_board_of_psychology/12521

Schaffer, J., DeMers, S. T., & Rodolfa, E. (2011). Licensing and credentialing. In J. Norcross, G. Vandenbos, & D. Freedheim (Eds.), History of psychotherapy: Continuity and change (2nd ed., pp. 651–662). Washington, DC: American Psychological Association. Sharpless, B. A., & Barber, J. P. (2009). The Examination for Professional Practice in Psychology (EPPP) in the era of evidence-based practice. Professional Psychology: Research and Practice, 40, 333–340. doi:10.1037/a0013983 Sinclair, C., Simon, N. P., & Pettifor, J. (1996). The history of ethical codes and licensure. In L. Bass, S. T. DeMers, J. Ogloff, C. Peterson, J. Pettifor, R. Reaves, . . . R. M. Tipton (Eds.), Professional conduct and discipline in psychology (pp. 1–15). Washington, DC: American Psychological Association. doi:10.1037/11101-001 481

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Stromberg, C., Haggarty, D., Mishkin, B., Leibenluft, R., Rubin, B., McMillian, M., & Trilling, H. (1988). The psychologist’s legal desk reference. Washington, DC: National Register of Health Service Providers in Psychology. Swankin, D., LeBuhn, R. A., & Morrison, R. (2006). Implementing continuing competency requirements for healthcare practitioners. Washington, DC: AARP. Retrieved from http://www.cacenter.org/files/Implementing ContinuingCompetencyRequirements.pdf Van Horne, B. A. (2004). Psychology licensing board disciplinary actions: The realities. Professional Psychology: Research and Practice, 35, 170–178. doi:10.1037/0735-7028.35.2.170 Vermont Statutes, Title 26: Occupations and Professions, Chapter 55: Psychologists, as amended July 1 (2010). Washington Revised Code, Title 18.83: Psychologists (2011). Retrieved from http://apps.leg.wa.gov/RCW/ default.aspx?cite=18.83 Weissman, H. N. (1984). Professional standards from the perspective of the sociology of professions. Professional Psychology: Research and Practice, 15, 471–472. doi:10.1037/0735-7028.15.4.471

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Welch, B. L. (2001). Caution: State licensing board ahead. Insight: Safeguarding Psychologists Against Liability Risks, 1, 1–6. Williams, M. H. (2000). Victimized by “victims“: A taxonomy of antecedents of false complaints against psychologists. Professional Psychology: Research and Practice, 31, 75–81. doi:10.1037/0735-7028.31.1.75 Williams, M. H. (2001). The question of psychologists’ maltreatment by state licensing boards: Overcoming denial and seeking remedies. Professional Psychology: Research and Practice, 32, 341–344. doi:10.1037/0735-7028.32.4.341 Wise, E. (2010). Maintaining and enhancing competence in professional psychology: Obsolescence, life long learning and continuing education. Professional Psychology: Research and Practice, 41, 289–292. Wise, E., Hall, J. E., Ritchie, P., & Turner, C. (2008). National Register of Health Service Providers in Psychology and Canadian Register of Health Service Providers in Psychology. In T. J. Vaughn (Ed.), Psychology licensure and certification: What students need to know (pp. 127–138). Washington, DC: American Psychological Association.

CHAPTER 19

RISK MANAGEMENT FOR PSYCHOLOGISTS Samuel J. Knapp, Bruce E. Bennett, and Leon D. VandeCreek

When we step back from our perspective as health care providers, we can see that the disciplinary mechanisms in place for psychologists and other health care professionals serve a valid social purpose. It seems only reasonable that licensing boards should establish and enforce minimum standards of behavior for its licensees. Furthermore, we know that some psychologists, albeit only a few, have cheated insurance companies, sexually exploited patients, or engaged in other clearly unethical and immoral behavior. It seems only right that licensing boards should investigate and, when appropriate, discipline these psychologists and perhaps even remove them from the profession. In addition, when psychologists harm patients through unethical or incompetent behavior, it seems only fair that a malpractice court should require the psychologists to compensate the injured parties. Overall, these disciplinary mechanisms appear to uplift the quality of services provided to the public by discouraging and punishing unethical or harmful behaviors. In addition, they provide some benefit to the profession itself, insofar as they remove from practice some unethical psychologists who harm the reputation of the profession. Despite their positive benefits, these disciplinary mechanisms have negative side effects because they run the risk of punishing psychologists who did nothing wrong and who had only the misfortune of encountering particularly angry or litigious clients that expressed their discontent by

filing complaints. Even if the licensing board, ethics committee, or malpractice court eventually exonerated those psychologists, they still had to endure months or perhaps years of stress, embarrassment, self-doubt, and anxiety, and spend a lot of time and money for their defense (Montgomery, Cupit, & Wimberly, 1999). Even if a malpractice carrier paid the cost of the defense, all policyholders ultimately bear the burden of the cost in the form of their premiums. The two goals of this chapter are to describe and illustrate risk management strategies that protect psychologists from making mistakes that could lead to disciplinary complaints and, if complaints are filed, to ensure that the psychologists have practiced in a manner that reduces the likelihood that the complaints will be founded. Ideally, those psychologists who follow the recommendations in this chapter will have fewer complaints filed against them or, if a complaint is filed, will suffer far less as a result. Risk management strategies, like all professional activities, should be based on overarching ethical principles. Consequently, risk management hinges on doing the right thing to help patients or to uphold other ethical ideals. With that perspective in mind, we endorse the risk management perspective developed by the American Psychological Association (APA) Insurance Trust (Bennett et al., 2006) and amplified by Knapp and VandeCreek (2009b).

Portions of this chapter are adapted from Assessing and Managing Risk in Psychological Practice: An Individualized Approach, by B. E. Bennett, P. M. Bricklin, E. Harris, S. Knapp, L. VandeCreek, and J. N. Younggren, 2006, Rockville, MD: American Psychological Association Insurance Trust, with the permission of the APA Insurance Trust, and from “Could the Titanic Disaster Have Been Avoided? Or Promoting Patient Welfare Through a Systems Approach,” by S. Knapp, 2003, The Pennsylvania Psychologist, 63(4), 18, 36, with the permission of the Pennsylvania Psychological Association. DOI: 10.1037/13271-019 APA Handbook of Ethics in Psychology: Vol. 1. Moral Foundations and Common Themes, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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In a sense, much of this handbook could be said to further the goals of risk management in so far as the chapters describe ethical conduct and how psychologists can conform to the ethics codes and laws that regulate them. For example, psychologists practice safely when they are competent, understand issues of diversity, respect boundaries, obtain informed consent, and respect confidentiality. (More information on each of these subjects can be found in Chapters 6, 8, 9, 12, and 13 of this volume, respectively.) There is no substitute for being familiar with the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) and following its enforceable standards. However, the Ethics Code cannot, by its very nature, be specific and comprehensive enough to cover every conceivable ethical issue that may arise in the practice of psychology. Consequently, it is important for psychologists to understand the ethical principles that underlie the Ethics Code and to learn how to apply them judiciously. Furthermore, as we discuss in this chapter, some psychologists who do follow the Ethics Code meticulously still will face patient complaints. This chapter contains at least two domains of information that other chapters do not cover. First, it describes the nature of allegations of infractions by psychologists, the circumstances that lead up to them, and the steps that psychologists can take to minimize them. We address the literature on the context, circumstances, and sequence of events that increase the likelihood that (a) patients will be harmed, (b) ethics codes or standards of the profession will be violated, or (c) patients will feel so dissatisfied that they seek to discipline a psychologist. These three negative outcomes (patients are harmed, standards are violated, and patients or clients feel discontent) overlap but are not synonymous. That is, some psychologists, even if they follow codes and laws and refrain from harming patients, could be vulnerable to a charge of unethical or illegal conduct if they encounter high-risk patients or clients who have a predisposition to litigation or hostile interactions. Nonetheless, even in those circumstances, psychologists can do much to reduce their legal exposure. Second, this chapter describes several self-regulatory procedures, called risk management strategies (or quality-enhancing strategies) that can increase the 484

likelihood that psychologists will maintain or upgrade the quality of their services, decrease the likelihood that patients will file complaints, or increase the likelihood that courts or other bodies will dismiss complaints that are filed. This literature is influenced by developments in transportation and the safety sciences, and by the study of medical errors. Because we are all human and prone to mistakes and errors, we should know specific procedures that reduce our risk of error. As much as we all would like to claim that we act at the highest possible ethical level at all times, such goals are unrealistic and we need to account for our fallibility. As we describe in this chapter, every professional encounter involves an interaction between the needs of the patient, the skill level of the psychologist, and the context in which the service is provided. The quality of work will depend on the interaction of these factors, which are not static, but change over time—possibly over the course of the service or treatment. Only naïve or narcissistic psychologists believe that they always have the optimal skills for every patient in every context. In presenting this information, our goal is not to frighten psychologists unnecessarily. We want to adopt a balanced approach toward professional practice. On the one hand, we need to acknowledge that bad things can happen and consider the possibility of a worst-case scenario. By envisioning that worst-case scenario, psychologists may prevent it from happening. On the other hand, the strategies proposed in this chapter can do more than just prevent bad things from happening; they also can increase the quality of services provided to patients. In fact, good clinical practice is perhaps the single most important risk management strategy. In this chapter, we first describe the application of some principles of safety science to medicine and psychology. Then we describe the nature of complaints against psychologists, including service setting, patient characteristics, psychologist factors, and the interaction of these three factors as they relate to the possibility of patient complaints. Later we present ethically based strategies designed to reduce legal risks and provide examples of their application. Finally, we describe the role of professional liability insurance in protecting psychologists.

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SAFETY SCIENCE AND ITS APPLICATION TO HEALTH CARE The study of transportation safety has implications for psychology. Airline safety has improved considerably over the years, and by 1999 accident per airline departures dropped to almost one fifth its 1950 level (D. Johnson, 2001), primarily because the Federal Aviation Association and the aviation industry worked together to understand why accidents occurred and how to prevent them. Now, for example, it is taken for granted that airplanes will have dual electrical systems and at least two pilots on every flight. Pilots are taught the importance of teamwork (called crew resource management), and every member of the crew accepts responsibility to identify and correct safety violations. These preventive measures are analogous to the primary or secondary prevention activities of psychologists: to avoid problems in the first place, to detect problems early if they occur, and to respond appropriately once problems have been identified. Two separate events illustrate the impact of anticipating adverse events in the transportation industry. On January 15, 2009, geese flying in the path of US Airways Flight 1549 clogged both of the plane’s engines, causing it to lose power and to descend. Airport control operators had already alerted nearby airports and local hospitals and police that the plane was in trouble and would be seeking an emergency landing. The pilot, Sully Sullenberger, and his crew were trained in emergency landings. When the emergency landing occurred, the crew knew the escape procedures and followed them conscientiously. Ironically, Captain Sullenberger was an expert in air flight safety and had done numerous trainings on the topic. The lives of all 155 passengers and crew members were saved (Newman, 2009). In contrast, in 1912, an iceberg in the North Atlantic Ocean struck the HMS Titanic, and 1,503 passengers and crew members died because basic safety features were ignored. First, ships of that era traditionally had several water-tight compartments at their bottoms. In the event that one compartment received a puncture and filled with water, the others would be free of water and keep the ship afloat. However, the Harland and Wolff Company did not

build such traditional water-tight compartments in the Titanic, and when the iceberg punctured the Titanic below the waterline, its entire bottom filled with water and it sank. Second, the Titanic had lifeboats for only one third of the passengers. The owners were so confident of the impregnability of the Titanic that they thought lifeboats were unnecessary. Third, the Titanic’s wireless operators had been instructed to give priority to the social messages of its wealthy passengers. Consequently, the wireless operators were so busy sending outgoing messages that they did not receive incoming telegraph messages warning of iceberg sightings in the vicinity. Unaware of the iceberg danger, Captain Edward Smith ordered the Titanic to go full speed through iceberg territory in hopes of breaking the world’s record for crossing the Atlantic. If the Titanic had been going more slowly, the pilots might have seen the iceberg in time and missed it entirely (as it was, the iceberg barely scraped the Titanic but created a gash along its side below the water level). Finally, the USS California, which was within a few miles of the Titanic when it was struck by the iceberg, could have saved all hands if it had responded promptly to the Titanic’s distress flares. However, 1 hour before the Titanic struck the iceberg, the California’s authoritarian captain, Stanley Lord, had ordered his crew to shut down the telegraph post and not to disturb him for any reason. When his sailors saw the distress flares from the Titanic, they dared not waken Captain Lord, thus failing to come to the rescue (Biel, 1996; Knapp, 2003). At first glance, it would appear that these events involving the transportation system have little relevance to health care. Transportation involves crews, customers, machines, and the goal of transporting passengers safely and quickly. Health care involves professionals, patients, technology, a lot of individual professional judgment, and the goal of improving patient health. Nonetheless, the problems that arise in both systems are often the result of failures to work as a team, to communicate, to double-check information, or to use a feedback loop when trouble is identified early. As we describe in this chapter, psychologists can implement harm prevention strategies by focusing on teamwork and cooperation with patients and using specific quality enhancement 485

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strategies when involved in situations that present a high risk of failure. The Institute of Medicine report To Err Is Human (Kohn, Corrigan, & Donaldson, 2000) estimated that 44,000 patients die every year from preventable accidents, such as prescribing wrong medications; misreading a prescription; failing to check on concurrent medications, leading to unnecessary adverse medication interactions; performing the wrong medical procedures; or failing to take ordinary infection prevention measures. Medical error research has forced the field of medicine to focus on analyzing negative events, understanding why they occur, and preventing them. Hospitals now have committees to review sentinel events when patients are injured or nearly injured. Among other things, this research has underscored the importance of better communications among health care providers and staff. For example, physicians and nurses are now more likely to rely on checklists before starting medical procedures, staff members are encouraged to report behaviors that place patients at risk, and physicians now are expected to use reasonable handwriting for prescriptions and to cooperate with other health care professionals. The movement attempts to rein in “medical bullies,” or physicians who ignore feedback from staff, thus increasing their isolation and vulnerability to errors. Psychologists have contributed to the transportation and medical safety literatures, and the transportation and medical safety literature has something to offer psychologists. TYPES OF COMPLAINTS With psychology, as with transportation and medicine, a first step is to understand what mistakes occur.

Most Common Complaints On the surface, it would seem that the most profitable way to identify the risks to psychologists would be to understand the common types of violations for which psychologists are disciplined and to avoid those behaviors. This approach has some merit, but as we will describe, it has many limitations because discerning the reasons why psychologists are disciplined is not as easy as it would seem, and because 486

allegations of misconduct depend on the interaction among several factors, including the patients receiving services, the services being delivered, the contexts in which the services took place, and the skill levels of the psychologists, including emotional competence of the psychologists and the quality of the psychologist–client relationship. Psychologists can be subject to a complaint before an ethics committee, a state licensing board, or a malpractice court, or they can be subject to criminal proceedings for violating other laws regulating the practice of psychology, such as laws governing the reporting of child abuse, prohibiting sexual relationships with patients, or prohibiting insurance fraud. (More information on regulation of the profession can be found in Chapter 18 of this volume.) In addition, they could be subject to discipline from an employing institution, such as a hospital, or could be expelled from an insurance panel, including a state or federally sponsored program. Although most disciplinary actions are filed against psychologists who provide clinical services, academic and research psychologists also can be subject to disciplinary actions from their employers or their funding sources. (More information on ethics in research settings can be found in Volume 2, Chapter 16, this handbook.) Looking at the reasons why psychologists are disciplined is a first step toward understanding risks of being disciplined, and this can be determined by reviewing the reports of disciplinary actions from ethics committees, licensing boards, and malpractice carriers. Our review of these sources provides only general information or trends on disciplinary actions for several reasons. First, disciplinary bodies do not categorize data uniformly, and the same single action can lead to multiple accusations of misconduct. For example, the single act of failing to report insurance fraud could result in a misdemeanor, expulsion from a federal billing program, an ethics complaint, or a disciplinary action by a licensing board. Second, the nature of the alleged infraction may influence or determine the adjudicatory body that receives the complaint. For example, a patient may be able to prove easily that a psychologist broke confidentiality, thus favoring a complaint with both a licensing board and a malpractice court. But unless the patient could prove substantial harm,

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it may be prudent for the patient to file only a licensing board complaint, because the cost of a malpractice complaint probably would not result in sufficient monetary damages to warrant the time and cost involved in its pursuit. Or, a patient may have a serious complaint against a psychologist but fail to file the complaint within the time period specified in the statute of limitations. The patient may have lost the opportunity to file a malpractice suit because she waited too long, but she did not lose the opportunity to file a licensing board complaint because most licensure laws have no statute of limitation for filing complaints. Third, the same complaint may involve allegations of multiple infractions. For example, a complaint against a psychologist with a professional liability carrier might include allegations of inadequate treatment, failure to refer, inadequate diagnosis, breach of confidentiality, or more. In addition, allegations may be dropped or added as the case proceeds through the judicial system. Finally, no central registry collects data on criminal actions against psychologists. It would seem likely that a plaintiff’s attorney pursing a malpractice complaint would turn the issue over to a licensing board after completion of their investigation, but there is no guarantee that this always occurs. Despite the limitations on these data, we can draw some general conclusions about the most common forms of patient complaints. According to data from the last three years of the APA Ethics Committee, the common types of infractions they addressed (other than being disciplined in another jurisdiction) were allegations of problems with sexual relationships, nonsexual multiple relationships, insurance and fee problems, child custody, and practicing outside one’s areas of competence (APA Ethics Committee, 2008, 2009, 2010). According to data from the last 26 years of licensing board complaints—as compiled by the national association of state licensing boards, the Association of State and Provincial Psychology Boards (ASPPB)—the most common types of infractions reported to licensing boards are unprofessional conduct, sexualized relationships, fraudulent acts, and improper or inadequate record keeping. The most frequent types of complaints reported to ASPPB are listed in Table 19.1.

TABLE 19.1 Reported Disciplinary Actions for Psychologists Reason for disciplinary action Unprofessional conduct Sexualized relationship with patient Conviction of crimes Improper or inadequate record keeping Failure to comply with continuing education Fraudulent acts Inadequate or improper supervision Breach of confidentiality Impairment Fraud in application for license

Number disciplined 996 971 334 203 183 180 177 155 132 56

Note. From “Reported Disciplinary Actions for Psychologists,” by the American Psychological Association, 2009b, Monitor on Psychology, 40, p. 13. Copyright 2009 by the American Psychological Association.

Data from professional liability carriers are proprietary and not available in the public domain. Consequently, we only have data from the APA Insurance Trust (2010). According to these data, in the last 10 years the most common types of malpractice claims were for ineffective treatment, inadequate diagnosis, custody dispute, sexual misconduct, breach of confidentiality, and suicide. The most frequent types of complaints are listed in Table 19.2. Because plaintiffs often file multiple complaints, the table include only those that the compilers perceived to be the primary allegation. As the reader may note, the time periods for gathering these data varied from 2 years for the APA Ethics Committee, to 10 years for the malpractice data from the APA Insurance Trust, to 26 years for the licensing boards. These varying time periods may mask trends in liability. Nonetheless, the Insurance Trust data indicate a decrease in sexual claims (from 20% to 9%) compared with the previous decade, but an increase in custody evaluation claims (from 3% to 10%). Complaints in retaliation for fee collections also have decreased (from 4% to 1%), perhaps reflecting greater sophistication among psychologists in ensuring that debt problems do not occur or being more prudent about when to pursue bad debts. Despite the limitations of each of these individual data sets, certain common themes emerge. The most 487

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TABLE 19.2 Data From the APA Insurance Trust Type of complaint Ineffective treatment, failure to consult, failure to refer Failure to diagnose, improper diagnosis Custody dispute Sexual intimacy, sexual harassment, sexual misconduct Breach of confidentiality Suicide Supervisory issues (conflict of interest, improper multiple relationship) All other issues

Percentage 29 16 10 9 8 4 3 20

Note. Data on malpractice claims provided by the APA Insurance Trust.

common reasons for complaints across categories are for inadequate treatment or diagnosis, sexual relationships, nonsexual multiple relationships, insurance and fee problems, participation in child custody cases, breaches of confidentiality, test misuse, inadequate supervision, inappropriate follow-up or termination, inappropriate response to crises, and inadequate record keeping. On the basis of these data, we could generate cautions to avoid sex with patients, never breach confidentiality without cause, always practice within one’s scope of competence, and so on. We assume, however, every psychologist already knows these basic rules. Still, misconduct occurs. In addition, these general descriptions of disciplinary data leave many questions unanswered. For example, all would agree that psychologists should not practice outside of their areas of competence. This begs a complex series of questions: Who defines competence and how is a determination made? Must psychologists demonstrate that they had academic courses during graduate education (how many and taught by whom?) in all areas of current practice? Can a psychologist administer a test without prior supervised experience with that particular test? Did the psychologist fail to practice competently because of lack of knowledge, or because that knowledge was not applied conscientiously? If the psychologists had not obtained the knowledge or skill for a particular treatment modality or a particular patient, did they 488

fail to recognize that fact because of so-called savior fantasies, narcissism, an exaggerated and perhaps reckless sense of their own competence, or inadequate training? What role might economic conditions play in fostering competent or incompetent practice? For example, do some psychologists succumb to pressure to treat a particularly difficult patient to avoid disappointing a referral source? Could lower incomes drive some psychologist to practice in areas in which they have had little or no instruction, training, or supervision? Similarly, we could all agree that psychologists should not breach confidentiality. But this happens more often than we wish to acknowledge. Do psychologists breach confidentiality because of ignorance of the exceptions to confidentiality, maliciousness, inadequate training of clerical staff, sloppy record-keeping practices, or just the plain allure of gossip? Before exploring these questions in details, three more comments need to be made about the disciplinary data. First, a few psychologists are repeat offenders. The National Practitioner Data Bank (Department of Health and Human Services, n.d.), which includes both licensing board data and exclusions from state and federal reimbursement programs because of misconduct, found that 68% of psychologists had one report against them, 25% had two reports, and 7% had three or more reports. Perhaps some psychologists with repeat offenses were especially unscrupulous or even ill prepared for the role of psychologist. Second, over the past 10 to 15 years, the likelihood of being disciplined appears to have stabilized. Ethics committees are adjudicating fewer cases, but licensing boards are adjudicating more cases, and malpractice suits are relatively stable. In addition, compared with medical practitioners, the overall likelihood of being disciplined continues to be relatively low for psychologists. Finally, just noting the types or frequency of disciplinary actions does not capture the human element involved. Psychologists who have served on ethics committees or licensing boards know all too well that being the subject of a disciplinary hearing before a licensing board is a difficult and heart-wrenching experience, both for the accused

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psychologist and the former patient bringing the charges. The emotional pain involved for both sides can be quite palpable and will be with the parties for many years after the decision is rendered. Mere numbers cannot capture the actual costs of disciplinary proceedings in terms of emotional pain, loss of esteem, regret, and embarrassment.

Other Ways to Categorize Complaints In addition to reporting the most frequent types of action that led to a disciplinary response, it is also possible to categorize complaints according to the apparent motives of the psychologist. Of course, these interpretations need to be made cautiously because they rely on after-the-fact impressions formed on the basis of limited information. Nonetheless, some of the actions that lead to disciplinary complaints appear to be the result of selfish or immoral motivations. For example, insurance fraud is a repeated and deliberate effort to acquire money from insurance companies through deception. As such, it differs from insurance abuse, which is a lapse in accurate billing resulting from clerical errors or a misunderstanding of the billing rules, although sometimes insurers play a role when they present the billing requirements in an unclear manner. Examples of fraud include repeatedly billing for services for patients after they have been terminated; billing for multiple hours when only a single hour of service was provided and consistently upgrading procedure codes when they are not justified on the basis of the service provided. (More information on billing issues can be found in Chapter 17 of this volume.) However, other actions that could lead to disciplinary responses include those that appear to be made out of ignorance, naiveté, or lack of professional skill. For example, a psychologist might not have known that certain situations require a report of child abuse and failed to report it. Or, a psychologist might not have handled a suicidal patient with as much skill as would have been indicated under the circumstances. Tragically enough, some disciplinary actions are filed against psychologists who had pure and even altruistic motives. They may have gone the extra mile for certain patients in a misguided attempt to be helpful, which we call

“runaway compassion” and which Gert (2006) called “immoral altruism” (p. 105). Finally, some complaints occur even when a psychologist had delivered adequate or even exemplary care but was the unfortunate victim of a litigious or angry patient who used the psychologist as a scapegoat. Although these types of cases usually are dismissed, the speed with which they are dismissed and the stress on the psychologists varies at least in part according to the extent to which they used risk management strategies. Furthermore, even if the psychologist is found innocent of the specific charges brought by a disgruntled patient, it does not mean that the licensing board might not find other issues that might result in a sanction. CALCULATING RISK Bennett et al. (2006) defined risk as the calculation of the probability of a good (or bad) outcome and positive (or negative) consequences. Risk is a function of several factors as expressed in the risk management formula: Clinical Risk 

P  C  D, TF

(1)

where P means patient factors, C means context, D means disciplinary consequences, and TF means individual therapist factors. This heuristic formula is designed only to help psychologists conceptualize the elements involved in risk. It is not intended as a mathematical formula with values that can be inserted to derive a numerical rating of risk. No formula can capture the dynamic and interactive nature of these factors. We will describe each of the elements of the formula in more detail. It is also possible to relabel this model as a quality enhancement, competence enhancement, or performance enhancement formula, but quality, competence, or performance enhancement nonetheless still would involve the interaction of patient, context or situation, and psychologist factors (Roe, 2002). A risk management perspective requires acknowledgment that sometimes patients can fail to improve with therapy, or may even be harmed by 489

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therapy, and that the behaviors of psychologists may be related to the harm to the patient (Castonguay, Boswell, Constantino, Goldfried, & Hill, 2010). These facts may be difficult for well-meaning psychologists to accept, but the very recognition that harm can occur may help reduce its frequency. Quality of care is very important. According to Fisher (2003), “competence is the lynchpin enabling psychologists to fulfill other ethical obligations” (p. 45). Psychologists who are less competent are more likely to be subjected to a complaint. Nonetheless, disciplinary processes have a degree of randomness to them, and competent and ethical psychologists often have complaints filed against them. In other words, we should avoid thinking of risk as a linear process (bad conduct leads to a disciplinary complaint). A complaint is the endpoint of a long process that often, although not always, includes misconduct on the part of the psychologist. Consequently, the prevention activities we describe later in this chapter will not focus on the laws, standards, and ethical principles governing the profession. Other chapters in this handbook describe those laws, standards, and ethical principles. Instead, we will focus on factors related to the complex interactions contributing to the eventual filing of a formal complaint. As stated by Tjeltveit and Gottlieb (2010), Ethical transgressions are the final common pathway of a multidetermined process. . . . The profession has focused too much on logical and quasi-legal reasoning to analyze the development of such transgressions and too little on personal resilience and the ability to address vulnerabilities that form the antecedents of sound preventive ethical practice. (p. 107)

Patient Factors Data on the characteristics of patients who file complaints against psychologists are scarce and consist primarily of anecdotal reports and impressions among defense attorneys and risk management experts. No doubt many patients who file complaints are decent and well-meaning people who actually were injured by psychologists. However, 490

some patient characteristics appear more common among those who file complaints. Not surprisingly, these often are patients with serious personality disorders (Cluster B, paranoid, borderline, or narcissistic) and those who present a serious threat of harm to self or others (Bennett et al., 2006). The relationships between patients with personality disorders and complaints should not be surprising because the very nature of these personality disorders often includes difficulties getting along with others, a limited support system, and little insight into how their behavior contributes to their own problems. (More information on patients with a high risk of failure can be found in Chapter 15 of this volume.) They may be unable to form trusting relationships with others, assume bad motives, have trust issues, or be defensive or rigid in thinking about their problems. Often they present with turbulent life histories, including childhood abuse, “recovered memories” of harm, or dissociative identity disorder. These complaints sometimes reflect a litigious personality or a set of problem-solving behaviors that focuses on aggressive confrontations. In some instances, the stressors in such patients’ personal lives, especially if they are subject to or engaged in litigation, may prompt them to display hostile or borderline-like behaviors. At other times, patients may be involved in lawsuits, such as custody disputes, and demand that the psychologist fulfill the role of the treating expert with a court. These categories are not mutually exclusive, of course, and a patient may be found in more than one. The specific diagnosis is less important than the presence of such traits as a belief in one’s entitlement to special treatment, a pattern of idealization and vilification of others, a pervasive inability to accept objective and constructive feedback, or the use of romantic seduction as a consistent strategy to express affection or closeness. (More information on these subjects can be found in Chapter 15 of this volume.) Nonetheless, we know that patients who file complaints against physicians generally had lower satisfaction with their care (Fullam, Garman, Johnson, & Hedberg, 2009) and claimed that their physicians had acted poorly to them in that they devalued their opinions (Beckman, Markakis, Suchman, & Frankel, 1994). We also know that the likelihood of a patient

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filing a complaint or being dissatisfied with service increases as the socioeconomic income level of the patient increases (Burstin, Johnson, Lipsitz, & Brennan, 1993). Patients of a higher socioeconomic status file more complaints than patients of lower socioeconomic status, although the rate of complaints among higher income patients is still rather low. The reasons for this are unclear, but it may be that these patients are better educated, less tolerant of low-quality services, more knowledgeable about how to file disciplinary reports, or feel entitled or empowered.

Contextual Factors Context refers to the total circumstances of the relationship, including the setting (e.g., a solo practice, small group, or institution) and the type of service provided (e.g., psychotherapy, forensic or nonforensic assessment). Institutional treatment settings may reduce risks insofar as they may have clinical and legal resources greater than those generally available in solo or small group practices. However, an institutional setting, such as a hospital, also may have greater legal exposure in that it has a greater degree of perceived control over the behavior of the patient and practitioner. Generally speaking, psychotherapy involves lower risks of a complaint than forensic evaluations, or evaluations with financial or relationship consequences. This is an example of how the listing of types of complaints fails to inform us about the relevant features of a complaint. For example, the ASPPB lists practicing outside an area of competence as the cause for some complaints. However, many complaints in that category may have been brought against psychologists who were providing custody or forensic evaluations, suggesting that any work with patients who are involved in custody issues increases risks of a complaint regardless of level of competence. Psychotherapy is a low-risk activity unless services are delivered to persons involved in litigation related to the treatment; when there is the potential for, or existence of, a clinically contraindicated multiple relationship; or when the patient has life-endangering qualities.

Individual Therapist Factors Finally, individual therapist factors influence outcomes and the likelihood of a disciplinary complaint. Not all psychologists will be equally effective with all patients under all circumstances. The level of expertise of psychologists depends in part on the stage of their career and also on whatever circumstantial factors influence their functioning. Therapist factors associated with low risk include an accurate understanding of skill level, including the extent to which external factors could diminish those skills, and actually applying those skills regularly. Griffen et al. (2008) used the phrase “practice patterns of behavior,” which refers to “elements of care that a physician provides predominately through the application of knowledge and technical skill through traits such as diligence, vigilance, and commitment, instead of through the possession of knowledge or technical skills” (p. 470). As noted, we may infer that some, although we believe relatively little, unethical behavior occurs deliberately. Also, some unethical behavior occurs because psychologists are acting out of ignorance of the standards and laws governing the profession.1 Our impression, however, is that the most common source of misconduct is failure to apply knowledge or information that the psychologist already knows or should know. As Griffen et al. (2008) noted, possession of knowledge does not guarantee ethical conduct, although knowledge is a necessary prerequisite. This refers to the “failure to conscientiously think to apply knowledge, as opposed to failing to possess knowledge” (Griffen et al., 2008, p. 471). Factors that will lead psychologists to fail to apply that knowledge include a failure to recognize their actual skill level, a sense of entitlement and need for power over others, lack of a sense of mission, personal problems, substance abuse, and social isolation. Or, phrased positively, the factors that will greatly decrease the likelihood of a complaint are the ability to self-reflect and understand one’s strengths and limitations, a well-developed sense of values, and

1

Our experience in running risk management workshops is that many psychologists are uninformed about the content of the APA Ethics Code and the laws and regulations that govern the practice of psychology.

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social connectedness. As will be described, these factors overlap and interact considerably. We note a high congruence between the features we are reviewing and resilience features described by Tjeltveit and Gottlieb (2010).

Understanding, Maintaining, and Improving Skill Level Some discussion of competence is necessary here as it relates to risk management. (More information on professional competence can be found in Chapter 6 of this volume.) Psychologists can be more effective in evaluating their risks if they accurately understand their skill level, knowledge base, and emotional competencies. All of us can overestimate our skill level so that our perceived skill inventory will be much greater than our actual skill inventory. For example, Epley and Whitchurch (2008) noted that “people tend to evaluate their own traits and abilities more favorably than is objectively warranted” (p. 1159), although the degree of distortion is in dispute. Nonetheless, people often overestimate how much they give to charity and complete tasks on time, and otherwise judge themselves to be more ethical than others (Epley & Dunning, 2006). Davis et al. (2006) found that physicians commonly overestimated their level of skill on a variety of professional tasks. A subset of physicians who were low on competence greatly overestimated their skill level. Perhaps this overconfidence is one reason why clinicians tend to be poor at predicting patient failure (Hannan et al., 2005). This may be an example of what Younggren (2007) has called “professional narcissism” or an “overestimation of one’s ability” (p. 515). Psychologists can reduce the gap between perceived and actual skill level by ongoing contact and high-quality feedback with other mental health professionals in which they can compare their knowledge base with others. As described in the section Social Connectedness, psychologists who are professionally isolated risk becoming obsolete and developing gaps in their skill inventory and database without knowing it. Ideally, skill will improve over time. Anecdotally, we believe that the experiences of psychologists with many different patients improve the level of their skills. These experiences give them insights 492

into their skills and patient dynamics, a sense of perspective when difficult patients appear on their case load, and the ability to plug holes in their education, gear their practices to patients with whom they have a better success rate, and otherwise improve the quality of their services over time. However, we have no evidence that this actually occurs or, if it does occur, whether it might be eroded by practitioner decay, whereby practitioners fail to keep abreast with the developments in the field. For example, some psychologists use obsolete versions of tests that are not appropriate for the issues being addressed. It is not unethical per se to use an older version of a test if convincing clinical reasons can be given for doing so. (More information on assessment and testing can be found in Volume 2, Chapter 4, this handbook.) However, some practitioners appear to be using the older tests only out of a sense of inertia or for economic reasons. Finally, Cullari (2009) found that younger psychologists were seldom disciplined by the state board of psychology, and the psychologists who were disciplined had been practicing for an average of 16 years. The reasons for this are not clear; it may be that the disciplined psychologists had moved to a stage in their careers at which they were dealing with a more difficult or affluent clientele who were more willing to file complaints. However, the possibility of practitioner decay cannot be dismissed. Psychologists who appreciate the limits of their skills recognize that they cannot help all patients, and they keep this limitation in mind, even when they feel a desire to be very helpful to certain patients. Depending on the situation or the nature of the patient’s needs, some patients are better off being referred, perhaps to an agency that provides a multidisciplinary team with more resources (such as case managers), ready availability of psychiatric coverage, options for day treatment programming, and easy access to inpatient services. These institutions or agencies have more control over the patient and, for some patients, that degree of temporary control may be clinically indicated. External stressors can diminish the competence of a psychologist to the extent that they distract the psychologist from giving full attention to clinical

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tasks. These stressors may be personal or professional. As much as psychologists may wish to separate their personal and private lives, it is impossible to do so completely. A bad day at home can spill over, even if minimally, to work. Personal and professional stressors will increase during periods of life transitions, such as when moving, children leaving the home, divorce or separation, or starting a new job. There are times to be especially vigilant about potential risks or slips. Other personal life transitions may be anticipated, such as the decline in physical and mental skills because of aging, although many physical illnesses or injuries cannot be anticipated. Our purpose in recounting the stressors affecting psychologists is not to be unduly negative, but rather to point out ways that these experiences could limit, albeit often only temporarily, a psychologist’s ability to work with certain patients. In addition, negative events and negative experiences occur to all practicing psychologists, including patient suicide, aggression (directed at the psychologist or others), stalking, or harassment, to name a few. In addition, psychologists experience chronic stressors such as the negative effect certain patients may have on the psychologist (e.g., extreme sadness or depression), events in the patient’s life that may trigger serious reactions for the psychologist, descriptions of trauma, resistance, missed appointments, denial, serious pathology (e.g., psychopathy and compulsiveness), and passive–aggressive behaviors. (More information on emotional competence and well-being can be found in Chapter 7 of this volume.) Psychologists need to adjust their work level to account for these stressors. It is inevitable that external pressures and competing priorities will force all psychologists to prioritize at some point. During stressful times, the psychologist may fail to complete the day’s dictation or notes, delay returning a phone call, or postpone a professional obligation. However, those who take routine shortcuts engender greater risks of disciplinary actions and may be delivering less than adequate professional services. Shortcuts are especially problematic during the expected and sometimes increased periods of personal or professional stress. Psychologists should

be careful about taking on especially difficult patients during this time and should make efforts to increase their use of risk management strategies. It is exactly during those times of being hurried that psychologists need to slow down and doublecheck their work and decision making. Fatigue itself may affect quality of care. Among workers in general, consistently working overtime is associated with increased illness, more injuries, and increased mortality (National Institute for Occupational Safety and Health, 2004). For example, studies have shown that medical interns made 36% more serious medical errors and 5.6 times more serious diagnostic errors when they worked the traditional intern schedule—about 85 hours a week, including 30-hour shifts—compared with interns who worked shorter hours—about 65 hours week, and no more than 16-hour shifts (Harvard Work Hours Health and Safety Group, 2004). Although psychologists typically do not work the long hours associated with medical residencies, the relationship between fatigue and errors appears applicable. These stressors can cause psychologists to get distracted and lead to what is termed emotional pollution where the amount of dysphoria or other negative emotions in the background make it harder to discern which emotions are being generated by the patient relationships and which by general ill feelings. It is wise to anticipate a certain amount of negative emotion from work.

Social Connectedness Social connectedness refers to the extent that individuals have meaningful and ongoing relationships with others. In one’s personal life it typically refers to family life, which is the bedrock of our social lives. Social connectedness also could refer to community activities, such as participation in civic groups, religious organizations, Rotary clubs, chambers of commerce, local humane leagues, or other activities involving others. The facets of social connectedness include meaningful personal relationships in the immediate workplace as well as with a larger group of professionals. A strong personal life helps provide balance in one’s life and is a source of renewal and life enjoyment. It is a mistake to assume that the rewards in 493

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one’s personal and professional lives are fixed quantities that have to be apportioned so that a person with a good personal life will have a weaker professional life, and vice versa. It is a pleasant paradox that those who are most able to distance themselves from work and immerse themselves in family, friends, or avocations often are most able to return to work with curiosity, vigor, and a sense of optimistic challenge. Well-functioning psychologists often take time for their personal and family lives (Coster & Schwebel, 1997). Social connectedness at work has several benefits. A large body of literature has developed around the idea of social capital. According to Putnam (2000), “the core idea of social capital is that networks have value” (p. 39). Although this concept has been applied widely to many issues, including the ability of democracies to successfully engage their citizens, here we are looking at it from the standpoint of improving the professional performance of psychologists, where a network of cooperative colleagues who provide mutual support increases the quality of work. The continual contact with colleagues helps psychologists learn new information, compare their knowledge base with that of others, and provide a social support that moderates the emotional stressors caused by work. It means a lot to be able to discuss with others how frustrating particular patients can be. It is essential to be part of a good workplace environment in which people experience a cooperative team atmosphere. Social support helps to reduce the stress inherent in the practice of psychology. Some psychologists participate in support groups or consultation groups whereby they meet regularly to seek and give advice on ways to improve patient care. Some innovations in physician training also may have application for psychologists. For example, Sternlieb (2008) described the use of a “megaclinic” with medical residents where they discussed patient interactions in detail, including their emotional reactions to patients. Balint groups were developed by the British physician Matthew Balint to help physicians process their relationship with patients in a structured setting with a group leader (Balint, 1957; A. H. Johnson, Brock, Hamadeh, & Stock, 2001). In many ways, the interpersonal 494

reactions of physicians are similar to those experienced by psychologists with their patients and efforts have been made to adapt these groups to psychologists. Social connectedness at the work place is best manifested by a team approach. For example, the President’s Task Force on Patient Safety in the Office Setting of the American College of Obstetricians and Gynecologists concluded, among other things, that lead physicians can deliver higher quality patient care if they develop “a culture of safety [that] requires team work of all players in the medical office setting” (Erickson, Kirkpatrick, DeFrancesco, & Lawrence, 2010, p. 148). The task force noted, “All providers must incorporate patient safety in every aspect of patient care. This is not the bar toward which we aspire; rather it is the bedrock on which we build” (Erickson et al., 2010, p. 150). All staff must be involved in treatment and focused on patient care. No staff member is superfluous or unimportant, and everyone must be committed to the quality of patient care. The quality of teamwork can affect patient care in subtle ways. It is not unheard of, for example, for patients who are ambivalent about treatment to drop out because they found the bathroom in the office to be unclean or the secretary to be abrupt. Likewise, supervisees must be given enough time to talk about training issues and access to supervisors in emergencies. Socially connected professionals have substantially lower risks for being the subject of a disciplinary complaint. Hickson and Entman (2008) found that obstetricians who had a supportive work environment had lower litigation risks. In discussing quality of care among physicians, Williams (2008) stated, Numerous examples could be cited from the sports world of teams with extremely talented individuals falling short of their potential or expectations and of teams composed of less talented individuals excelling as a team. The same undoubtedly applies in clinical settings and medical practices. (pp. 685–686) As applied to psychologists, Knapp and VandeCreek (2009a) found that psychologists who

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belonged to their state psychological association had significantly fewer disciplinary actions than nonmembers. For example, the Pennsylvania State Board of Psychology had disciplined 27 psychologists from 1998 to 2008 for serious boundary violations, but only three of those psychologists belonged to the state psychological association, even though 40% to 45% of all the psychologists in the state belonged to the state association. The reasons for this correlation are not clear. Perhaps the more conscientious psychologists self-select themselves into the professional association or perhaps the education or risk management consultation provided by the association reduces the risk of being disciplined. This is hard to evaluate because we cannot do an experimental design and randomly assign psychologists to the professional association. Nonetheless, the data are consistent with an interpretation that professionally connected psychologists have lower risks of being disciplined. Similarly, Klimo, Daum, Brinker, McGruire, and Elliot (2000) found that orthopedic surgeons who belonged to their professional association had lower rates of malpractice complaints than nonmembers. How do psychologists go about creating a supportive social environment? They can start to create one by showing the same support and concern for others that they wish to be shown. Psychologists who wish to receive support from other psychologists can begin by being supportive of others. Psychologists who wish to have a state or local psychological association provide useful networking opportunities or other services to the local psychological community can start by volunteering to that organization. They can serve on a committee, assist in management activities (even if the activities are low profile or unglamorous), present a continuing education program, participate on a listserv and offer information or identify resources with others on the listserv, and use a tone in their responses that shows respect and concern for others.

Sense of Mission Values are a source of resilience (Tjeltveit & Gottlieb, 2010). Most people become psychologists out of a sense of mission and a desire to help others. They can point to ethical values that propelled their

decisions. According to Martin (2000), “activities and relationships and the workplace . . . [are] inherently meaningful in terms of our fundamental values” (p. 11). Sometimes these are values based on religious upbringing and beliefs, family interactions, personal experiences, or personal study. How do these values translate into a better work product? These motivations and values can propel psychologists to a higher level of conscientiousness and provide a foundation upon which to make professional decisions. Psychologists who act out of a sense of purpose and value are more likely to seek out continuing education programs, attend to patients carefully, and otherwise promote the welfare of patients even at personal costs in terms of money or time. In addition, when difficulties arise, they have a personal value system to rely on to help them make decisions. Some psychologists adhere to a list of rules that they apply rigidly or simplistically to difficult and complex situations, but they are not informed by compassion or sensitivity. The ideal is for psychologists to work from an integrated perspective as described in the ethics acculturation model (Handelsman, Gottlieb, & Knapp, 2005). According to this model, psychologists function best when they maximize personal values within the context of their professional services. According to the ethics acculturation model, principles of ethics are seen along two dimensions. One dimension includes the personal ethical standards that psychologists bring to their work. The second dimension is their attitude toward the standards of the profession. These dimensions are shown in Table 19.3. TABLE 19.3 Ethics Acculturation Model High professional

Low professional

Identification

ethics

ethics

High personal ethics Low personal ethics

Integration Assimilation

Separation Marginalization

Note. Adapted from “Training Ethical Psychologists: An Acculturation Model,” by M. M. Handelsman, M. C. Gottlieb, and S. Knapp, 2005, Professional Psychology: Research and Practice, 36, p. 60. Copyright 2005 by the American Psychological Association. 495

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Acculturation to the practice of psychology is similar to the acculturation of immigrants to a new society. Immigrants who enter a new land encounter a foreign culture that has different social customs, values, and habits of behavior. They can adjust in one of four ways. First, they can separate themselves from the new culture and keep their original culture and language as much as possible. Second, they can react with the converse and assimilate, become super citizens, and shed all the vestiges and avoid all references to their old life. Third, they can adopt a marginalization strategy and neither value their old heritage nor adopt the new. Finally, they can adopt an integration strategy and adopt the best of both cultural heritages. That is, they may appreciate the uniqueness of their new culture but retain the roots of the culture of origin. When students move into a professional field such as psychology, they undergo an experience that is analogous to ethnic acculturation, in that the new culture of psychology has rules and standards that differ from the sense of propriety and values that people bring with them (Handelsman et al., 2005). Some of the rules are counterintuitive. For example, in a friendship, we expect to engage in mutual selfdisclosure, lend our friends money if asked, and be reluctant to keep a confidence that had the risk of harming our friend. However, as it applies to professional psychologists, we self-disclose with our patients selectively and only for their benefit, do not lend them money, and keep confidences strictly unless there are clearly defined legal exceptions. As it applies to patient relationships, psychologists following a separation strategy would give prominence to their personal values without adequately considering the unique meaning of the professional relationship. They may see a patient more like a friend and be more likely to engage in mutual self-disclosure and fail to keep boundaries. Psychologists following the assimilation strategy may emphasize the rules governing the profession too much and fail to appreciate the latitude that psychologists have to form meaningful relationships within the context of those rules. A psychologist may adopt unusually rigid boundaries without taking advantage of opportunities to express compassion or understanding through selective patient-focused selfdisclosure, expressions of empathy, or well-timed 496

nonerotic touch as a means to express concern. Although Martin (2000) was not using the terms associated with the ethics acculturation model, he expressed a similar perspective when he noted the need to avoid both “underdistancing” and “overdistancing” in professional relationships (p. ix). Overdistancing involves adherence to rigid rules of behavior that may separate professionals from their patients, such as found in the assimilation strategies. Underdistancing involves loose boundaries similar to friendships that may enmesh professionals with their patients, such as found in separation strategies. Finally, psychologists following integration strategies are more likely to feel a sense of mission and to maximize their personal virtues within the context of their professional roles. For example, psychologists using an assimilation strategy would be more concerned with whether a patient signed a legally required consent form, and psychologists using the separation strategy would be more concerned about their personal opinions as to what patients should know about treatment. Psychologists using an integration strategy would both ensure they got the legal documents signed and that they involved patients in treatment decisions as much as was clinically indicated. As it applies to risk management, those using the assimilation strategy may be more likely to look to strict algorithms, rigid decision trees, or absolute rules to guide their behavior, and they may undervalue the importance of compassion, relationship building, and flexible judgment. Those who use a separation strategy may fail to see how professional roles are designed to promote the welfare of patients and improve the effectiveness of services. The model proposed here, however, is congruent with the integration strategy in that it not only appreciates the need for certain rules and standards within the practice of psychology, but also urges implementing those rules with compassion, consideration, and concern for patient welfare and other important ethical values. Examples of integration strategies will be presented later in this chapter.

Patient–Psychologist Interactions or Relationships Among physicians, data show that not all negligent conduct results in a lawsuit and not all lawsuits

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involve negligent conduct (Burstin et al., 1993). That is, many patients are harmed who never file complaints, and some patients are never harmed who will file complaints. Fortunately, suits in which there is no harm or medical error seldom result in an award for the plaintiff, but suits in which there was harm or medical errors usually do result in awards for the plaintiff (Studdert et al., 2006). Nonetheless, the likelihood of a suit being filed in the first place depends on factors other than the objective harm to the patient or the degree to which the physician deviated from reasonable standards of care. The physician–patient relationship appears to be a highly important factor in the likelihood of a professional complaint. Canadian and American medical schools now have standardized clinical skill examinations as a requirement for licensure that measure, among other things, the quality of physician–patient communications. Tamblyn et al. (2007) reviewed the disciplinary data of physicians licensed in Quebec and Ontario and found that physicians who scored low on patient communications in their national licensing examinations had higher rates of patient complaints. In addition, Levinson, Roter, Mullooly, Dull, and Frankel (1997) found that primary care physicians who had fewer claims were more likely to use more orienting statements (explaining procedures to patients) and humor in their conversations, and to use facilitating statements (statements that encourage patients to express their opinions or concerns). Beck, Daughtridge, and Sloane (2002) reviewed 27 studies dealing with communications between primary care physicians and patients. Despite differences in methodology in measuring and defining communication skills, the authors nonetheless concluded that “medical educators should continue to focus on teaching and reinforcing behaviors known as facilitative, and to continue to understand how physician behavior can enhance favorable patient outcomes, such as understanding and adherence to medical regimens and overall satisfaction” (p. 25). Williams (2008) noted that studies of this type probably underestimate the impact of physician communication because they do not quantify the tone or the nonverbal cues provided by the physician, which also affect the relationship.

Consistent with this interpretation is the finding that psychiatrists opined that effective listening was their most important therapeutic tool, surpassing all other diagnostic and intervention skills (Effective Listening Tops List, 2000). When asked about their reasons for filing lawsuits, patients often reported that they felt that the physician had devalued their opinions, delivered information poorly, failed to understand their point of view, or tried to withhold information (Beckman et al., 1994; Levinson et al., 1997). Findings such as these led Kahn (2008) to call for a return to “etiquette-based medicine” where basic social skills or bedside manners are taught, including looking the patient in the eye or shaking hands (Kahn, 2008). Much can be said for the benefits of ordinary politeness. Years ago, when the Ethics Committee of the Pennsylvania Psychological Association adjudicated ethics complaints against its members, a review of the disciplinary files revealed that rudeness was a factor in the frequency of complaints against psychologists (Knapp, 1996). The practice of medicine is not identical to the practice of psychology. However, these findings suggest that psychologists can reduce risks by spending more time on informed consent (orienting statements), involving patients in decision making throughout the therapeutic process, and listening to the patient’s perspectives, even when it may be clear that their perspective could well be part of the problem. These interpersonal skills may be especially important when dealing with high-risk patients. This means that, among other things, psychologists should attend to alliance ruptures—that is, situations in which the working relationship between the psychologist and patient has become strained. Efforts to repair the alliance could include openly addressing communication issues with the patient, addressing expectations for therapy, or revisiting therapeutic goals and techniques. At times, it may mean that psychologists will need to acknowledge that they misunderstood a patient or misinterpreted the significance of something the patient said. Even in high-risk contexts, such as child custody evaluations, conscientious psychologists can reduce the risk of harm to the participants by focusing on relationships, although they differ substantially from 497

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the type of relationship involved in treatment. Child custody disagreements are almost always stressful on the litigants and the children, and child custody evaluations are often stressful as well. Psychologists often can reduce the stress on the parties by spending time with them up front, explaining in detail the evaluation process and the steps that it involves. This information may need to be repeated throughout the process because the litigants are upset, and it can be hard for them to process this information accurately. The parties may be too distraught to attend to the information the first time it is presented to them or to understand it clearly. In addition, psychologists can give clients affective informed consent, which refers to information about their likely emotional reactions to the process to help normalize the range of emotions they are likely to feel. Also, in custody evaluations, conscientious and compassionate psychologists are polite and attentive, and they take reasonable steps to ensure that they understand the perspectives of the litigants. They are careful not to leave the impression that they side with one party or the other, however, because they do not want the litigant to misinterpret their attentiveness to mean that they necessarily agree with the client’s perspectives, or for the client to assume that the psychologist will reach the preferred conclusions. When dealing with collateral contacts, conscientious and compassionate psychologists ensure that others understand how their information will be used; this understanding reduce the likelihood that the contact will feel betrayed when this information appears in a report. In addition, it may help the collateral contacts be more precise and prudent in their choice of words when sharing information with the evaluator. Many custody evaluators who talk to the therapist of the child take steps to minimize harm to the child–therapist relationship by including in reports only necessary and relevant information, phrasing it tactfully, and ensuring its accuracy. For example, the evaluator may paraphrase the conversation with the therapists and send them a facsimile of the understanding of the conversation to ensure that the information is reported accurately and sensitively. The incorporation of these humane behaviors within the context of conducting a custody evaluation 498

is an example of using an integration strategy according to the ethics acculturation model. Although all psychologists who conduct evaluations are required to follow minimum standards of conduct, such as informed consent procedures as required by the Ethics Code (APA, 2010) and demonstrating at least minimum standards of conduct, psychologists using integration strategies will look for ways to maximize personal virtues (e.g., integrity, respectfulness) or live up to overarching ethical principles (e.g., nonmaleficence) while conducting those evaluations. The connection between relationships and proclivity to file complaints is illustrated by the following example. Case Example 1 A patient had applied to work in a sheltered workshop. One day the psychologist received a phone call informing her that the patient was accepted to the workshop, pending an updated letter from the psychologist. The psychologist’s secretary misread the date on the release of information form and sent out the letter, only later to note that the release of information form had expired and the letter was sent in violation of guidelines for patient confidentiality. The psychologist called the patient immediately, described the error, and asked her to come in and sign a new release. The psychologist apologized for the error. Fortunately the patient had no interest in the apology or details of how the error resulted in a breach of ethics; she was only interested in how soon she could start at the workshop. Although there was no excuse for the error (the psychologist should have checked the authorization date), this vignette illustrates an important point: Patients do not want to file complaints against people they like or who treat them with respect. Far from being angry, the patient was very pleased that her goal of attending the sheltered workshop would be achieved. She quickly forgave the infraction; in fact, she did not consider it an infraction at all. Of course, the same error in the absence of a good relationship might have produced a much different

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outcome. Psychologists who believe that they are immune from these or other minor errors are either naïve or narcissistic. Psychologists always should take a realistic approach to their human limitations and insulate themselves from such actions. CREATING RISK REDUCTION STRATEGIES The goal of risk management should be to reduce the likelihood that psychologists will make ethical errors and, if an unwarranted complaint should occur, to increase the speed and likelihood that such a complaint will be dismissed or resolved with the least amount of anguish to the psychologist. Risk reduction strategies should be based on overarching ethical principles and be consistent with what we know about the trajectory of events and contexts that lead to patient complaints. Fortunately, the acts that reduce the likelihood of disciplinary actions also increase the quality of patient care. Consequently, these risk management strategies should not be considered as a form of defensive medicine, a term used for actions by health care providers that are done only to reduce the likelihood of an allegation of misconduct and are not reasonably related to improving patient care.2 They have been called “overdeterrence” strategies (Studdert, Mello, & Brennan, 2010) because they go beyond reasonable efforts to deter allegations of misconduct.

Negative or False Risk Management Procedures Unfortunately, some risk management guidelines focus so much on what can go wrong that they fail to consider how to ensure the quality of client care. Some have asserted, for example, that “every patient represents a potential litigant.” Although this is technically true, this statement can create fear and distrust of all patients if it is not put into context. Every patient also represents a potential opportunity to help someone in deep distress in the context of a productive professional relationship. Of course, as reviewed, some patients and some contexts do represent an

increased legal risk and it is prudent to appreciate those risks. However, some of the fear-driven strategies actually can increase the risk of liability because they promote activities that weaken or discourage activities that strengthen the psychologist–patient relationship, or they reduce the likelihood of a successful treatment. For example, a participant in a workshop argued that psychologists should never keep detailed notes when treating a patient with life-endangering qualities because, in the event of a tragedy, “any crafty attorney will take your notes and twist them around.” A lawyer once provided the same advice but broadened it to suggest the psychologist should not take any notes at all because in litigation the plaintiff’s attorney will attempt to use the notes to impeach the psychologist. Another student was told by an employer “to always get suicidal patients to sign no-suicide contracts.” Other clinicians have reported that they were advised, “Never touch a patient, other than a handshake.” These and similar risk management strategies are problematic because they are absolutist, one-sizefits-all mandates (“always,” “never,” etc.) that may alienate patients. Such rigid rule setting and implementation are not based on overarching moral principles. With every professional activity, psychologists should ask themselves whether they are anchoring their behavior on an overarching moral principle, such as promoting patient well-being, avoiding harm, and respecting patient’s autonomous decision making. Bennett et al. (2006) stated that “any purported risk management strategy that tells you to do something that appears to harm a patient or violates a moral principle needs to be reconsidered” (p. 32). So, for example, as it applies to documenting carefully when a patient has life-endangering features, the main focus should be on patient welfare. Good documentation promotes patient welfare in that it can refresh the memory of the psychologist, help the psychologist think through important decisions, and be used to help future treatment providers of the patient. Of course, it is possible to

2

Defensive medicine is an interesting concept. It usually means that a physician orders unnecessary and expensive diagnostic and treatment procedures to avoid a malpractice suit, which might result if the physician had not done all that was possible to help the patient. When physicians use so-called defensive medicine, they actually risk establishing a new standard of care that must be adhered to by other physicians in order to practice within the standard of care.

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document sloppily, but good documentation should help the patient. Furthermore, the fear of crafty lawyers twisting statements shows ignorance of the actual process in licensing board or malpractice complaints. Conversely, poorly written records are easily subject to a variety of interpretations and could be used against the interests of the psychologist. As will be described, good documentation greatly reduces the legal risks to psychologists. No-suicide contracts are defensible only to the extent that they help protect the lives of patients or promote their well-being or autonomy. Legally, they neither help nor hurt a clinician in the event of a tragedy of a patient suicide. In other words, it is a myth that no-suicide contracts can be successfully used to immunize the psychologist. If they were used in the context of good treatment where the autonomy of the patient was appropriately balanced with concern for patient welfare, then no-suicide contracts (or safety agreements) might be useful. Conversely, they could be used in a clinically contraindicated way if the psychologist believes he or she needs to bully the patient into signing one. On the matter of physical contact with patients, some patients are likely to misinterpret the most benign contact. With such patients, minimal physical contact would be wise. However, psychologists can touch or give hugs to some patients as part of the overall relationship, but it is seldom that such interactions should become routine. This is another example in which an unnecessarily defensive or insensitive risk management strategy actually could increase the vulnerability of mental health professionals to an allegation of misconduct, to the extent that it distances professionals from authentic and meaningful relationships with their patients. Good clinical judgment and an in-depth appreciation for transference and countertransference are paramount in making the distinction. Some psychologists report that the best risk management practice is to never disclose personal information to a patient because it is the first step down a slippery slope of ever more dangerous boundary crossings and patient exploitation. Of course, some psychologists, such as those who work from a psychodynamic perspective, may avoid self-disclosure for clinical and therapeutic reasons. 500

These psychologists can base their decision on clinical theory and procedures designed to promote patient welfare. It is not reasonable to avoid all selfdisclosure on the basis that doing so will reduce legal liability. Occasional self-disclosures can be effective if they are narrow in substance, infrequent, and specifically focused on patient welfare. Again, the focus should be on adhering to overarching ethical principles with a focus on patient welfare and the treatment relationship. Ethics should not be turned into “a concrete wall” that separates us “from human connections” (Brown, 1994, p. 276). Instead, the best treatment occurs in the context of a supportive professional relationship characterized by genuine feelings of concern for the patient. A word of caution: Disclosure should never reveal confidentialities of other patients. As readers may have discerned, the false risk management procedures often appear to arise from an assimilation perspective according to the ethics acculturation model. That is, they are legalistic and rigid procedures that fail to incorporate a genuine concern for patient welfare or other overarching ethical values.

Positive Risk Management Strategies High-risk situations require psychologists to maximize the resources at their disposal to ensure a good outcome or to avoid a negative one. Psychologists can maximize those resources by using the following four positive risk management strategies: informed consent, consultation, redundant protections, and documentation. These strategies are all consistent with good patient care and are based on sound ethical principles. That is, the primary goal of the informed consent process, as broadly defined, is to maximize patient participation in the treatment process. The consultation process, as broadly defined, is used to improve the quality of treatment. Building in redundant protections serves to double-check or obtain additional information to guide service decisions. Documentation increases the clinician’s acuity and self-awareness of the treatment process and provides a record of conduct that can protect the psychologist in the event of an allegation of misconduct. These strategies are described briefly in Chapter 15 of this volume, although the

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emphasis in that chapter is on their applications as quality-enhancing strategies with patients with a high risk of treatment failure. All of these risk management strategies are consistent with good patient care and are based on sound ethical principles. These are good strategies to employ whenever there is a risk that the patients will not achieve their desired goals, even if the legal risks to psychologists are low. Generally speaking, these strategies should be used with as much transparency as possible. They strategies may be used in conjunction with each other and may be synergistic. For example, a consultation may encourage a treating professional to institute more redundant protections with a patient, modify the manner of documenting treatment, or revisit elements of the informed consent process with the patient. Psychologists should increase their attention to these risk management strategies whenever the risk of harm to the patient or the public increases (such as when a patient shows signs of threatening self or others), a patient fails to improve as expected for reasons that are not known, when the patient is at a high risk for failure, when the context suggests a higher risk for a complaint (such as a forensic case or an assessment with external consequences), or when a deeply held moral principle is threatened.

Maximizing Patient Participation (Informed Consent) Psychologists can maximize available resources in the service of the patient by increasing patient participation in the treatment through the informed consent process, although other terms such as shared decision making or empowered collaboration also express this concept. Of course, informed consent is a requirement under the Ethics Code; the goal here is to look at informed consent or patient empowerment when dealing with high-risk situations. (More information about informed consent can be found in Chapter 12 of this volume.) In therapeutic situations, it is desirable to involve the patient in as many treatment decisions as clinically indicated, and as early as possible. This is consistent with the ethical principle of respecting the decision-making autonomy of patients about whether to begin treatment, the goals of treatment,

and the procedures that are used during treatment. Psychologists who maximize patient involvement view informed consent as an ongoing process and revisit the goals and procedures of therapy as necessary. At all times, it is desirable to have a good working relationship so that patients can freely bring up issues of concern. This represents an integrative strategy from the standpoint of the ethics acculturation model, in that it tries to maximize values and patient welfare within the context of the professional role. Informed consent illustrates how much risk management strategies interact. It could be considered a form of consultation in that the patient is being consulted about the service. It also could be seen as a redundant protection in that patients provide a second source of information about the effectiveness or course of treatment. If patients appear to be doing poorly or not responding to treatment as desired, it may be desirable to revisit the treatment goals or the informed consent process with them. Are you addressing the goals that are most important for them? Is the process of treatment helpful for them? Do they wish to try another set of techniques? As part of involving patients in treatment, psychologists share their decision-making and thinking processes openly with patients as much as possible. Of course, these processes need to be presented tactfully. For example, telling a patient that she has borderline tendencies or traits is unlikely to be helpful. However, telling a patient that you are seeing fluctuating moods, disruptive interpersonal relationships, and impulsiveness may help the patient to define her problems. Nonetheless, in some high-risk situations, for example, when the life of the patient or another is at risk or another moral value is in jeopardy, it may be justified to withhold information from a patient, at least temporarily. As the risk of misunderstanding increases, the need for greater explicitness and the need to revisit the original agreement increases. Consider the following example that concerns a high-risk family. Case Example 2 A psychologist was treating two children ages 13 and 11 in a high-conflict family where the parents were separated and 501

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were considering a divorce. The psychologist set parameters of treatment at the first meeting in a letter that both parents had to sign as a condition of providing services. Among other things, the letter stipulated that the parents agreed that the children needed a safe haven where they could have therapy, isolated from the struggles between their parents, and that the parents would not try to intrude into the therapy sessions of the children. The agreement also stipulated that the therapist would not respond to requests from attorneys for information and would respond only to a court-appointed custody evaluator if appropriate releases or court orders were received. In the event that parents withdrew consent, the psychologist reserved an option to see the children for at least three termination sessions. Although not legally binding, this agreement set the expectations for treatment. The psychologist anticipated problems and identified the case as high risk because of the presence of litigation and tremendous emotional distress that commonly occurs when families divorce and parents have not yet agreed on parenting plans. The psychologist appropriately felt the need to set expectations for therapy and to explain clearly his role and relationships to third parties, such as attorneys, who may be interested in the nature of therapy. This prudent psychologist got the agreement in writing and had it signed by both parents. As noted, evaluations with external consequences also can create a high-risk situation for psychologists. That is, when the persons who are being evaluated feel harmed by the results of the evaluation (loss of promotion, loss of job or failure to be employed, loss of visitation rights of a child, or loss of custody, etc.), they may express their dissatisfaction through a disciplinary complaint. These evaluations differ from therapy in that it is not possible to engage the client in the professional process. This situation often occurs because the client frequently is not the person being evaluated. Typically, in an evaluation with external consequences, an outside 502

party, not the patient, determines the goals of the evaluation. Nonetheless, even in those situations, psychologists can reduce their legal risks by being especially careful and thorough in explaining the nature of the evaluation and its consequences.

Maximizing Resources (Consultation) It is desirable that psychologists act competently (or at least not incompetently) in delivering professional services. Competence is based on the overarching ethical principle of beneficence, that is, promoting patient welfare. In addition, it illustrates an integration strategy according to the ethics acculturation model in that a psychologist is acting in accordance with the standards of the profession and in accordance with a personal ethical system that gives value to high-quality services. Psychologists can enhance their competence in many ways, such as by reading and attending continuing education programs and other formal education programs. It is certainly important to be up to date on the current literature and professional opinions supporting specific interventions. Knowledge of practice guidelines can be helpful, but these must be read critically because the treatment has to be applied to each particular patient. Nonetheless, in the middle of treating patients, psychologists usually do not have enough time to acquire the new information that may be available through reading or continuing education that is specific enough to help with a particular patient in immediate need. Instead, seeking consultation may be the optimal manner to gather more information or additional perspectives to help the patient. Consultations may be formal and could involve having another professional see the patient directly. Such a meeting may generate more useful information, although patients may not always want to meet with another professional, and it does entail more legal exposure on the part of the consultant. The consulting psychologist should make it clear to the patient or client that this is a one-time consultation. The consultations could involve a meeting with another professional who has reviewed the treatment notes. Consultations also may be informal and involve a phone call to a trusted colleague or even a brief posting on a listserv to solicit resources or

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information for a particular problem area. Consultations sometimes occur as part of an ongoing consultation group. Consultations often will be more productive if psychologists write down the issues to be discussed ahead of time. As Standard 4.06, Consultations, cautions, however, unless the patient’s consent has been obtained, special care should be taken not to provide any identifying information or breach the patient’s confidentiality. Consultation has at least three benefits. First, the person receiving the consultation may receive new information or insights about the clinical situation being considered. Second, the very process of seeking a consultation may reduce high emotional arousal and help the person getting the consultation to think through situations more clearly. Finally, the consultant may be able to give feedback on the consultee’s thinking processes, reveal an understanding of the case, or provide insight into emotional feelings toward the patient or other aspects of the patient’s treatment. At times a close friend may be an appropriate consultant, especially if the goal is to become introspective about feelings toward a patient. However, close friends may not be as honest or as critical as they should be and, at times, it may be desirable to seek a highly skilled colleague. The education background or professional affiliation is less important than personal qualities of the consultant. Consultation is more effective when the persons seeking the consultation are nondefensive and open about their feelings and what they have done. It is unwise to seek consultation with the goal in mind of gathering support for a predetermined treatment plan. Of course, in high-risk situations, the psychologist may have a general idea of how he or she would like to proceed, even though he or she is seeking consultation as a redundant protection. Nonetheless, the consultation will be more helpful is there is openness to other ideas or perspectives. We recommend that the professional receiving the consultation document the fact of the consultation, the general issues discussed, the recommendations made, the reasons for following or not following the recommendations, and the outcome. The legal liability to the consultant is minimal, and although there may be no legal requirement for the consultant to document the contact, it is advisable

that the consultant document the interaction as well, especially for formal consultations with highrisk patients. If such consultation occurs in an institutional setting such as a hospital, the consultation would be charted by both individuals involved. Case Example 3 Dr. Naksone was treating a patient with panic disorder and phobic avoidance. Although he was proficient in the treatment, had many successful cases, and had kept up on the literature, he determined that this patient failed to make adequate progress after several sessions of standardized treatment. The patient reported some reduction in the frequency of panic attacks and improvement in his marriage, but insufficient progress had been made otherwise. Because treatment stalled for reasons that were not obvious, Dr. Nakasone sought consultation from an expert to determine ways to advance treatment. In this case, Dr. Naksone received information from the consultant concerning the comorbidity of personality disorders and panic disorders that helped him reconceptualize the treatment plan. When they described harmful treatment effects from psychotherapy, Castonguay et al. (2010) identified numerous factors related to patient harm, including the specific technique used and its application with a particular client, but also therapists’ skills and characteristics related to building good relationships. When considering consultation, many psychologists think only in terms of getting factual information about the patient’s condition or the latest research findings on particular treatments. No doubt this information can be important. However, consultation often requires focusing on the feelings of the therapist toward the patient and the nature of the working relationship. Clients may precipitate feelings that range from the mildly negative (“There is something about that patient that is annoying”) to the very negative (“I loathe working with this patient!”) to the very positive sexualized (“This patient arouses my erotic fantasies; I think about this patient all the time”), or nonsexual paternal or maternal feelings (“This 503

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patient is like a son to me”). Intense feelings need to be discussed, and they should not be forced underground. Often they are useful in identifying traits about the patient that are helpful for moving along treatment. At times, they reveal something about therapists and their shortcomings. It is inevitable that some patients will engender intense feelings on the part of the psychologist. In a half-joking article, Gordon (1997) speculated about developing a Minnesota Multiphasic Personality Inventory–like lie scale for psychologists that would include such questions as, “Did you ever have sexual feelings toward a patient?” or “Did you ever feel like cursing at a patient?” (p. 19). Often the consultation is on the nature of the treatment relationship since ruptures in the relationship or failure to resolve ruptures increases the rate of patient drop out and reduced outcome (Muran et al., 2009). Because a poor alliance predicts early dropout, psychologists should especially pay attention to the treatment alliance early in therapy (Castonguay, Constantino, & Grosse Holtforth, 2006). Ideally, psychologists would be attentive to patient characteristics or their own behaviors that make developing the alliance more difficult. Consideration also should be given to cultural factors, and their relationship to alliance and outcome (APA, 2003). Often it is desirable for psychologists to speak to other psychologists, clergy, other professionals, or community leaders if they are not familiar with the cultural background of a particular client. As noted, the various risk management strategies overlap and interact with each other. For example, informed consent could be viewed as a form of consultation with the patient insofar as it acts to maximize patient input into the goals and procedures of therapy. Sometimes collateral contacts or family members act, de facto, as consultants insofar as they share important information relevant to treatment procedures and outcomes. Consultation with other professionals is most often indicated in these difficult situations.

Checking One’s Work (Redundant Protections) Redundant protections refer to having access to additional sources of information to assist in decision making. We have noted the importance of redun504

dant protections in traffic safety and also in ensuring safety in medical settings. Although the reasons for filing disciplinary complaints are complex, we also have noted that low quality of care is a major factor driving patient complaints. These factors highlight the importance of continuous quality improvement, that is, a desire always to be looking for ways to improve the quality of services provided. One way to do this is by checking one’s work through the use of redundant protections. These processes are what one workshop participant called “the belts and suspenders” approach. Examples of redundant protections include checklists, brief satisfaction surveys, outcome measures, or anything else that gives a second look at the quality of care. In a sense, revisiting the informed consent process is a redundant protection to the extent that it provides additional information on the progress of the treatment goals. Input from other professionals through consultation is another example of a redundant protection. Some redundant protections should be used with all patients. For example, it is desirable to have a standard intake or interview form for all patients where basic information is requested, including information that would suggest that the patient is at a high risk for treatment failure. Additional information might include salient events in childhood history, current family functioning, medical history, legal involvement, or other factors related to the presenting problem of life circumstances. This information may help identify red flags or other indicators that a patient has particular vulnerabilities or needs. Redundant protections may not be indicated in all high-risk situations, but they provide an invaluable source of protection. Some redundant protections appear in most psychological practices. The entire treatment process should involve verifying, rejecting, or modifying the treatment plan, as assessment is a continuous process throughout the course of treatment (Gottlieb, Younggren, & Murch, 2009). When writing forensic reports, psychologists should follow the appropriate standards and try to get convergent data for their conclusions. Whether doing treatment or conducting assessments, competent psychologists who work in group

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settings strive to have good and open communications with all members of their staff, including clerical staff or colleagues, and to accept information from all legitimate sources. Consider the following example of how gaining additional information from support staff may be helpful. Case Example 4 During an intake for parents seeking treatment for marital problems, the parents left their 11-year-old daughter in the waiting room. Although there were sufficient reading materials and stimuli to entertain most children, this girl destroyed property in the waiting room, tried to harass other children in the waiting room, and was disrespectful to the secretary. Although the parents denied any child-rearing problems in their intake interview, the data from the waiting room behavior provided additional information that had to be considered in the case conceptualization. The importance of open communication with clerical staff was also illustrated in a case involving patient privacy. On a more systemic level, clerical staff may see a psychologist inadvertently engage in practices that threaten to violate patient privacy. For example, one psychologist turned off the radio in the waiting room without realizing that doing so allowed some patients to hear conversations in the office. In addition, psychologists need to ensure that supervisees have access to them to discuss concerns regularly and in emergencies. Also, a team approach with colleagues is helpful, providing more opportunities for consultation, shared on-call services, or other professional services. Problems in medical practices may be relevant in that physicians with good relationships with other colleagues are seen as providing higher quality of care. Physicians who bully, threaten, or are dismissive of others will discourage colleagues from bringing safety issues to their attention. Although intake forms and communications with other staff members are essential parts of redundant protections, other redundant protections may need to be considered depending on the circumstances.

Some authors suggest that psychologists should routinely give outcome measures to all patients to measure their response to treatment. Indeed, there are indications that a continuous feedback system could improve patient outcomes (Reese, Nosworthy, & Rowlands, 2009). For example, Lambert (2007) concluded that assessment instruments can predict patients at high risk for failure by session four, whereas psychologists do poorly at identifying those at risk for failure. Therefore, on the surface it would seem obvious that psychologists should routinely give such measures. The situation is more complex, however, and we do not recommend that all psychologists routinely give standard assessment instruments to all patients. Much depends on the quality of the instrument, its relationship to patient needs, the perceived benefits in relation to the administrative burden involved, and other factors (APA, 2009a). For example, Lambert (2007) used instruments at college counseling centers, and their usefulness might have been more limited if used with populations with lower literacy skills, with populations with higher proportions of seriously mentally ill persons, or in settings where patients would be more likely to view such instruments as intrusions instead of aides. Furthermore, some domain-specific instruments may be more appropriate for some patients than a general survey of well-being. A psychologist may, for example, use an instrument for screening suicidal potential with a patient who is dealing with such a problem. Of course, even when used, such instruments should not usurp the clinician’s judgment, and they must be used as but one source of information concerning patient welfare and outcome. A good rule is that if a patient fails to improve by Session 4 in the absence of an obvious stressor, or if the therapist perceives that a good treatment relationship has not developed by Session 4, then it may be wise to reconceptualize the case. Is the patient able to tell the psychologist important things about treatment and outcome? Is the patient ready for change? Should the psychologist modify the treatment plan to include family interventions, medications, or other resources? Patients do vary in their pace and speed of recovery (Stulz, Lutz, Leach, Lucock, & 505

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Barkham, 2007), and the failure to improve early does not necessarily mean a treatment failure. Likewise, early improvement does not necessarily mean that treatment success is inevitable. Nonetheless, early response is a good prognostic indicator (Lambert, 2007). Case Example 5 A psychologist was treating a patient with major depression, and it appeared that the patient was connecting with the therapist and progress was being made. However, this psychologist had her patient complete a brief satisfaction survey at the end of the fourth session, and the patient reported that she did not believe that the psychologist adequately understood her problems. The psychologist was able to talk to the patient about her response. She was quite candid and nondefensive when she spoke to the patient, “I think I have underestimated the degree of your distress. I need you to correct me if I seem to misunderstand what you tell me.” The willingness of the psychologist to engage her patient and accept her feedback helped get the therapy onto a more productive track. When dealing with a patient who has depression, it may be desirable to have a source of information about the patient’s well-being beyond the patient’s self-report. The second source of data could include access to a spouse or other family member, or even a brief screening instrument given to the patient before a psychotherapy appointment. The general rule is to be transparent with the patient about the reason that a second source of data is being sought. In a sense, all risk management strategies involve a certain amount of redundant protections: Informed consent ensures that the patient’s perspective is more fully represented, consultation ensures that the perspective of an outside professional is present, and documentation ensures that the treating professionals are attending to the salient assessment and treatment issues. When in a hurry or when distracted by concerns, it is prudent to double-check one’s work. 506

Documentation Record keeping is governed by a variety of mechanisms, including state licensing laws and regulations and standards established by third-party payers. Documentation may be required to ensure compliance with insurance policies or to meet legal or accreditation requirements. The overarching reason for documentation, however, is to promote patient welfare in that it helps psychologists refresh their memories and creates a record that can be sent to future or other current health providers. Furthermore, many psychologists find that the process of creating thoughtful and well-written records can help them think through a clinical problem. Good documentation practices are based on the overarching moral principle of beneficence (promoting patient welfare) when they help psychologists think through problems. For risk management purposes, good records may protect psychologists if allegations of misconduct arise. From a legal perspective, the general rule is “if it isn’t written down, it didn’t happen.” Defense attorneys who represent psychologists before licensing boards report examples of cases in which investigators have dismissed complaints without going to a hearing when the psychologist presented good records that gave sound clinical reasons for decisions. On the other hand, such attorneys dislike defending psychologists who have poor records, even if they believe that the quality of care was acceptable or, at times, even commendable. Most patients receive routine care and the records are fairly straightforward as well. However, as risks increase, the quality of documentation should increase as well. Quality is more important than quantity. From a risk management perspective, good records should reflect transparent decision making. Eric Harris (Bennett et al., 2006) has used the analogy of writing notes in the same manner in which his algebra teacher graded algebra homework. That is, the teacher gave partial credit if the students wrote down each step of their work and the decision-making processes that they used even when the final answer was incorrect. Similarly, psychologists should document their decision-making processes in their notes, especially in high-risk situations. The general goal is to be as transparent as

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possible in decision making. If it ever becomes necessary to review the work of the psychologist, then the reviewer should be able to understand the reason that the psychologist made the decisions, including the interventions that were implemented as well as the interventions that were not implemented. Even if a tragedy occurred and, for example, a patient died from a suicide, the reviewer ideally would be able to say that given the information that was available at the time, the decisions of the psychologist were reasonable. Of course, total honesty needs to be balanced with diplomacy, and psychologists may wish to exclude embarrassing information from the record unless it is essential to fulfill a clinical need. For example, the fact that a patient may be unattractive physically should not be recorded unless it is directly related to a clinical problem (e.g., a patient was depressed following comments about his physical appearance). Tone can be as important as content and unnecessarily unflattering words should be avoided. Good psychotherapy notes are legible, comprehensive, and internally consistent. For example, Rudd (2006) has suggested that in dealing with suicidal patients, the psychologist should never raise a highrisk issue without addressing it in the notes. This rule should apply to all high-risk situations. For example, do not write in an initial note that the “patient expressed interest in harming his roommate,” without addressing or closing the issue in a subsequent note (e.g., “Patient realizes that he overreacted to his roommate, and they are getting along a lot better now and he has had no more aggressive thoughts”). Records should include correspondence. This includes a summary of e-mails and phone conversations, except for brief messages dealing with scheduling or billing. At times it may be desirable to keep paper copies of significant e-mails. In the event that the content of an e-mail is upsetting to a patient, psychologists need to remember that the patient may very well have printed out that e-mail. Psychologists should help their supervisees write good records. Supervisors are responsible for the quality of services of their supervisees, and the delivery of a unit of health care is not complete unless there is a record of the transactions. In addition, psychologists should keep

notes of their supervisory sessions, including the conduct and professionalism of the supervisee. If good record-keeping habits help psychologists keep patient welfare in mind, then they act as a redundant protection, that is, as a check on the psychologist and the treatment of the patient. Case Example 6 An inpatient unit had released a patient who subsequently died from suicide. The family of the patient sued, and the discovery revealed notes in which the facility had realized that the man presented a risk of suicide. However, the records also indicated that he was very anxious to leave the facility and they feared that forcing him to stay against his will would discourage him from seeking treatment voluntarily from them in the future as he had always done in the past. Although releasing the patient was an error in hindsight, the facility made, and had documented, reasonable judgment in making its decision. This actual case shows the importance of good records. Although the outcome was deeply regrettable, the notes showed that the facility made a reasonable decision given the information it had at the time.

Applying Risk Management Strategies This section describes the use of risk management strategies in a high-risk case, dealing with the danger of a patient dying from suicide. Other examples, using the same basic risk management (or quality enhancement) strategies, are described in Chapter 15 of this volume. The death of a patient by suicide is an occupational risk for all psychotherapists. Most psychologists will treat many suicidal patients throughout their careers, and many psychologists will have at least one patient with strong suicidal ideation at any given time in their practices. In addition to the tragedy occasioned by the loss of a human life, suicides take an emotional toll on the treating professional as well as the families. It is not uncommon for psychologists to undergo a grieving process, or even a depression, after the suicide of 507

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a patient. In addition to the personal tragedy for the family and the pain caused to the treating psychologist, patient suicides or attempted suicides can lead to charges of negligence, although such complaints for outpatient therapists are far less frequent than for suicides that occur within hospitals. Consider the following case example and how a psychologist might respond to it, using the risk management strategies. Case Example 7 Dr. Rodriguez started to see Mr. A for depression. Mr. A had many of the demographic features associated with a high risk of suicide. He was an older White male widower who had access to guns. Although he had a married daughter, she lived a considerable distance away from him. At the start of the second meeting, the client announced that he intended to kill himself on the anniversary of his wife’s death, which was 4 months away. After some careful questioning, Dr. Rodriguez learned that the patient was quite committed to dying from suicide at this time. However, Dr. Rodriguez knew that she had several months to work with this patient before the danger of suicide became extreme, so she used the time to work on alleviating his depression. Despite being adamant about the option of suicide, Mr. A agreed to allow Dr. Rodriguez to work with him to reduce the emotional pain he was currently feeling. Given that Mr. A was participating in treatment with some reluctance (“I suppose it isn’t going to hurt any. I will come back if you want me to”), Dr. Rodriguez was not able maximize Mr. A’s involvement in treatment as much as she would have liked. However, she did get his commitment to return to therapy and to agree to certain conditions for treatment. She was candid with her patient about the potential benefits of treatment and its risks and the procedures she wanted 508

to use (Rudd et al., 2009). Although he refused to go to a psychiatrist (“I am not crazy!”), he did agree to see his family physician. With the patient’s permission, Dr. Rodriguez spoke to the family physician, who agreed to prescribe antidepressant medication. The family physician had known Mr. A and his wife for many years and had a genuine concern for his wellbeing. The family physician was not previously aware of Mr. A’s plan for suicide. Dr. Rodriguez sought consultation with an expert suicidolologist who noted the importance of exploring the intensity of the psychic pain, the possibility that the patient’s identification of an anniversary date was an effort to gain control over on an apparently hopeless situation, and the possibility of manipulation or secondary gain as part of the dynamics of the patient. The consultant also urged Dr. Rodriguez to be sensitive to her own feelings, especially the possibility that she would feel blackmailed (Gutheil & Schetky, 1998). Given the severity of the situation, Dr. Rodriguez had to decide whether to contact Mr. A’s daughter without his permission. On the one hand, Dr. Rodriguez believed that she could be an important source of information (a second check on the therapist’s perspectives) and resource in reducing Mr. A’s depression. With the patient’s permission, family contacts may act as a second source of insight and may identify potential problems or opportunities for interventions. On the other hand, Dr. Rodriguez feared that Mr. A would deny permission to contact the daughter. Consequently, Dr. Rodriguez decided to defer the decision on contacting the daughter because the suicide did not appear imminent and there was an opportunity to give therapy and medication time to work. Throughout the first several weeks of treatment, Dr. Rodriguez frequently gave Mr. A a brief screening instrument, which was another source of

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information concerning the severity of his suicidal ideation. After several weeks, Mr. A’s mood and activity level began to improve, and Dr. Rodriguez was able to involve him more in treatment, including getting his cooperation at generating a commitment to treatment statement (Rudd, Mandrusiak, & Joiner, 2006), which defines the treatment goals, steps toward recovery, crisis intervention steps, and other information necessary for effective treatment. Such statements appear to be more consistent with patient-driven empowerment than pro forma no-suicide contracts. This is an example in which a false risk management strategy could be harmful. Getting the patient to sign a prewritten no-suicide contract gives the appearance that the psychologist is more interested in personal liability than in the patient’s welfare. In addition, it could be an example of an assimilation strategy from the perspective of the ethics acculturation model, where the psychologist follows rigid protocols of what to do without considering how to incorporate compassion or other virtues into the relationship. When he mentioned that his daughter was coming to visit, Dr. Rodriguez asked, and Mr. A agreed, that she would come to the next session with him. With Mr. A’s permission, during their session together, Dr. Rodriguez was open with the daughter about her concerns for her father, the nature of treatment, and the ways she could be helpful to her father. Eventually, the daughter and the family physician were able to act as redundant protections, or second sources of information about the patient. Dr. Rodriguez increased the level of her documentation and was transparent about the reasons for her interventions. She described why she did not push the issue of going to see a psychiatrist, why she did not push for a voluntary hospitalization,

why she delayed contacting the patient’s daughter, and other treatment decisions.

What to Do if Accused of Misconduct Within medicine there is a movement toward openly acknowledging errors and apologizing to patients when these errors occur. This is a complex issue. Within medical settings, patients often feel relieved and appreciative when physicians or hospitals are open with them about errors or unavoidable complications that occurred that compromised their safety or health. When delivering psychological services, it is also clinically appropriate to recognize minor mistakes and apologize to patients for errors if it can be helpful in repairing a ruptured therapeutic alliance. Conversely, if the situation has deteriorated to the point at which the patient is threatening a lawsuit or licensing board complaint, psychologists should use caution and discretion in communicating with the patient and should not issue an apology without consultation with legal counsel and your professional liability insurer. Much depends on the context. For example, it is clinically indicated and appropriate for a psychologist to say to a patient, “I think I misunderstood what you meant in the last session,” or to apologize for being a few minutes late for an appointment or for writing down the wrong appointment time and not being available when the patient arrived. On the other extreme, it would be unwise and highly contraindicated to try to reason or negotiate with a client who (a) has already filed a licensing board complaint, (b) is very angry and unreasonable (perhaps with narcissistic or paranoid qualities), (c) is threatening such a complaint, (d) is demanding money back and an apology in writing, or (e) otherwise appears likely to use the comments of the psychologist out of context to harm the psychologist. One psychologist expressed regret to a patient about his inability to help him and later had this statement repeated (or distorted out of context) by the patient in a licensing board complaint as an admission of guilt. In addition, once a complaint has been filed, the psychologist should not discuss the situation with anyone but the psychologist’s attorney or with the permission of the attorney. Conversations with 509

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attorneys are privileged; conversations with others are not. Psychologists should never alter or destroy records and should refer all communications from the plaintiff or the plaintiff’s attorney to an attorney. If there is a misstatement or other error in the record, psychologists should not correct it by attempting to change the error. Rather, they should enter a new dated entry in the record, noting the earlier error and correcting it, even if it is as seemingly inconsequential as a change in the date of a scheduled appointment. PROFESSIONAL LIABILITY INSURANCE Psychologists purchase professional liability insurance to protect themselves against financial losses in case of allegations of professional misconduct. Psychologists who act in any professional capacity, whether providing health care or mental health care, teaching, conducting research, consulting, or delivering other professional services should have professional liability insurance to cover any claims brought against them. Although the risk of a malpractice suit is low for psychologists, the consequences of an allegation of misconduct could be catastrophic if the psychologist had no insurance coverage. The following section reviews basic information that psychologists need to consider before purchasing insurance, including the difference between occurrence and claims made coverage, factors influencing the cost of the premiums, policy exclusions, how cases are handled, and other factors. This section ends with five important considerations that psychologists should consider when purchasing professional liability coverage. Many psychologists who work for agencies or institutions do not have their own professional liability coverage, but rather rely on the agency to cover any claims against them. Even if the psychologist is covered in the agency’s policy, it is unlikely that it would cover the psychologist for an activity outside of the scope of their employment. For a hospital setting, this might extend to any activity or service provided by the psychologist that was not within the privileges granted to the psychologist. Although institutional coverage could exclude any professional service not in the employee’s job description, it also could exclude coverage for the 510

defense of a charge of sexual misconduct, under the theory that this behavior was not part of their scope of employment. In addition, the institution’s policy is highly unlikely to cover costs associated with a licensing board complaint. For these reasons, prudent psychologists purchase their own professional liability policy, especially if they ever provide any psychological services outside the institutional setting, including the occasional consultation with a neighbor regarding a problem the family is having with a child. Although such social advice is not considered a professional service by the psychologist, the neighbor may characterize the interaction as diagnostic or treatment advice. The psychologist would have to personally defend any lawsuit that may result from the friendly advice. A psychologist without professional liability insurance who provides any professional service outside the agency will have an uninsured exposure for these services. Those psychologists, including those who work primarily in education settings, usually purchase their own professional liability coverage.

Occurrence or Claims-Made Coverage Psychologists may purchase either occurrence or claims-made coverage. The type of coverage is primarily a business and economic decision. Occurrence coverage costs more than claims-made coverage, but it generally is easier to understand and administer. Although claims-made coverage costs less, at least during the first several years, the coverage issues are more complicated. Until the late 1980s, most psychologists held occurrence-type policies. In the 21st century, most psychologists hold claims-made policies. Occurrence policies cover alleged misconduct that occurred during the policy period for any claim reported any time in the future, even if the insured psychologist has since dropped the policy. Therefore, the insurers will cover the psychologist in perpetuity for any covered incident that occurred while the policy was in force. The trigger for coverage is when the alleged misconduct occurred, not when the claim was filed. A psychologist may drop an occurrence policy at any time, knowing that the insurance will cover alleged malpractice that

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occurred when the policy was in force, as long as the insurance carrier remains in business. Claims-made policies cover alleged misconduct that occurred during the policy period if the claim is reported while the policy is in force. Put differently, for a claims-made policy to cover a claim, the psychologist must have been covered under the same policy both when the covered incident occurred and when the claim was filed. All claims-made policies have a retroactive date or the date the policy was first issued. The insurer will not pay any claim alleging malpractice that occurred before the retroactive date. Likewise, the insurer will not pay any claims alleging malpractice that occurred after the policy has been terminated. Psychologists who drop claims-made policies need to take specific steps, which will be described, to ensure protection. Insurers collect premiums each year for an occurrence policy that are adequate to cover potential claims that could occur during that policy year and at any time in the future. Therefore, occurrence premiums are substantially higher than the premiums for a claims-made policy, especially when compared with the premiums for a claims-made policy during the first years of coverage. The premium for the 1st year of a claims-made policy only covers claims that occurred during the 1st year and are filed during that year. During the 2nd year of coverage, the premium must cover any claims from both the 1st and 2nd year that are filed in the second year. Premiums for the 3rd year must cover 3 years of potential claims. Therefore, psychologists pay less for claims-made premiums during the first years of coverage and more for claims-made premiums during the later years of coverage. Each additional year of coverage represents a new step rate in the premium for a claims-made policy. As the policy matures (typically sometime between the 6th and 8th years), it will have premiums similar to an occurrence premium. An occurrence policy covers claims according to the terms and conditions of the policy in force at the time the incident occurred, not at the time the suit is filed. A claims-made insurance policy covers claims according to the terms and conditions of the policy in force at the time the claim was reported, not at the time the alleged misconduct occurred. Psychologists

should consider this important difference when determining the amount of coverage to purchase. Psychologists who buy an occurrence policy will have the level of coverage that applied during the year in which the accident occurred. Subsequently, psychologists who purchased occurrence-based insurance with high levels of coverage will have that high level of coverage apply to all claims in which the accident occurred during that policy year, even if they lowered the level of coverage in subsequent years. Psychologists who buy a claims-made policy, however, will have the level of coverage that exists at the time the claim was filed. Similarly, if psychologists buy a claims-made policy with high levels of coverage for most of their career, but then shift to a lower level of coverage before retirement to save money, will have the lower levels of coverage apply to all new claims that are filed during that policy year, even if the accident occurred in a policy year in which they had the higher coverage. We recommend maintaining the levels of coverage in a claims-made policy during the later years of practice or at the time of retirement. Psychologists who drop or discontinue a claimsmade policy for any reason must purchase tail coverage to extend the period for reporting claims beyond the termination date. A psychologist who drops a claims-made policy should purchase the tail coverage or, if purchasing a new policy, should purchase other insurance with the same retroactive date as the terminated policy. The psychologist who fails to exercise one of these two options will not have insurance coverage if a suit is filed after the termination date, even though the alleged act of malpractice occurred while the policy was in force. Psychologists who change from claims-made coverage to occurrence coverage need to purchase the tail coverage on the claims-made policy to close out coverage under the terminated policy and pay the current premium for the occurrence policy. This option can be quite expensive. Psychologists who keep claims-made coverage but change insurer carriers should purchase the tail coverage for the terminated policy and pay the 1styear step rates for the new claims-made policy, or they should not purchase the tail coverage for the terminated policy but purchase coverage in the new 511

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claims-made program using the same retroactive date and step rate of the terminated policy (e.g., a psychologist who switches policies after the 5th year would purchase the new claims-made policy at the 6th-year step rate). All other issues being equal (e.g., viability of carrier, scope of coverage, availability of advocacy and risk management services, representation on behalf of the insured, and service), the decision basically is financial. If moving a claims-made policy from one carrier to another, the least important factor in making the decision is cost. If the new carrier has significantly lower cost, it may well have significantly lower coverage. It is highly advisable to have an insurance expert compare and contrast coverage issues in both policies before making the change. At a minimum, it is advisable to read and understand the coverage features of both policies and, perhaps, to speak with representatives of the current insurance agent about coverage features that may be different. Generally, it will cost less to drop the current claims-made coverage and purchase the claims-made policy from the new insurer using the same retroactive date and step rate as the terminated policy. In this scenario, the new insurer assumes total exposure for all potential past claims.

How Much Coverage to Buy? Insurers list limits on liability as a dollar amount for each incident and an aggregate dollar amount available during the policy period, which typically runs for 1 year. Most psychologists purchase $1million/ $3million in coverage, meaning the policy will pay a maximum of $1 million for a single incident and up to $3 million in losses for the year the policy was in force. Lower and higher levels of coverage are also available. The higher aggregate level of coverage, $3 million, does not necessarily reflect increased exposures in the practice of psychology. Rather, managed care companies generally require the higher levels of coverage for membership on provider panels, and hospitals where the psychologist has a staff appointment require similar amounts.

Policy Price The price for malpractice insurance varies as a function of the fluctuations of the insurance market, the strength of the economy, type of policy, the policy 512

limits, the scope of coverage, and the geographic location of the insured. The cost of professional liability insurance for psychologists varies, in part, according to cycles in the insurance industry. In a soft market, where the return on investments are high and there is increased competition, insurer carriers may respond to increased competition by offering new lines of coverage, improving coverage, or reducing premiums. However, insurance premiums run in cycles and hard markets follow soft markets. In a hard market, insurers may respond to decreased competition by reducing coverage, dropping certain lines of coverage, increasing premiums, or offering professional liability policies in a limited number of states. As noted, the cost of professional liability also depends on whether the psychologist purchases a claims-made or an occurrence-based policy. The scope of coverage offered also influences price. Lower premiums may reflect the exclusion of specific professional activities in the policy. A carrier may exclude coverage for any claims arising out of the delivery of professional services in a specific setting (e.g., correctional institutions), or the carrier may place restrictions on the delivery of specific types of professional services (e.g., working with victims of trauma, custody evaluations, coaching, parent coordinating services, or use of recovered memory techniques). Such exclusions carry potential danger unless the psychologist is fully aware of the exclusions and never provides services in these areas. A good risk management strategy is to purchase a policy with broad-based coverage that will defend and indemnify the psychologist for delivery of all legitimate professional services regardless of where the service is delivered. The major carriers exclude or limit claims related to sexual misconduct, in some instances by providing coverage only for defense of a claim but not for settlement costs under the theory that sexual contact is never an approved treatment. Other carriers may limit the total amount of payment for claims alleging any type of sexual misconduct, usually to $25,000, hardly enough to cover the defense of such claims. Finally, psychologists from states where insurance costs are higher pay higher premiums than psychologists working in states where costs are lower.

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Fine Print The wording of a professional liability insurance policy can assume tremendous importance and make the difference as to whether the psychologists are covered or how much coverage they have. Defense costs outside policy limits. A malpractice insurance policy is a contract between the insurance carrier and the insured and imposes obligations on both parties. All policies contain an insuring agreement, which states that for the premium paid, the carrier will defend and indemnify the insured for any covered wrongful act committed during the policy period arising solely out of the performance of professional services as a psychologist. Although this statement may give the appearance of broadbased coverage, all parts of the policy must be considered as a whole to fully understand how the policy works. The insurer must retain an attorney and pay for the legal costs involved as well as pay for damages awarded by a jury or cash settlements up to the policy limits stated in the policy. Because the cost to defend a malpractice action can be very high, the practitioner is advised to avoid any policy that includes the cost of defense within the policy limits. If the cost of defense is within the policy limits, any legal expenses incurred will reduce the amount of coverage available for settlement or jury awards. Policies in which the defense costs are outside the policy limits do not reduce the policy limits and are not that much more expensive. Conditions and exclusions. All insurance contracts contain conditions and exclusions that will limit the insurer’s liability to those events that the insurance is intended to cover. Typical exclusions include, but are not limited to, claims against the psychologist for the unlicensed practice of medicine; dishonest, criminal, fraudulent, or intentional acts; business relationships with current or former clients; and specific limitations for sexual misconduct claims. An insurance carrier will not defend or indemnify a practitioner for an event that is not covered by the policy. When a suit is filed, the insurance carrier will review the claim and language of the policy to make a coverage determination. If there are coverage questions, the carrier

may issue a reservation-of-rights letter stating the company’s position on providing coverage. In most cases, the letter will indicate that the company will defend the claim but will not be obligated to pay for any damages awarded on the basis of the excluded activity. If a jury subsequently awards large damages for the intentional acts or other uncovered acts, the psychologist, not the carrier, must pay. These limitations generally do not apply to settled claims. Some lower priced policies exclude activities that are a normal part of psychological practice. For example, a policy that covers only claims filed by the psychologist’s patient possibly could deny coverage for claims filed by a third party who is not a patient of the psychologist (e.g., a third party who was injured by the psychologist’s patient or a third party related to the patient). The insurance contract imposes obligations on the insured, including a requirement that the insured cooperate with the carrier to defend a claim. The insurer may deny coverage to a psychologist who fails to cooperate for a specific claim. The policy may contain conditions related to how claims are settled and the responsibility of the psychologist and the insurer in any settlement negotiations. Special provisions for sexual misconduct. Historically, approximately 20% of all cases and 50% of all losses against psychologists were for sexual misconduct. Although some evidence suggests that the number of sexual misconduct claims may have been decreasing in recent years, this type of misconduct still represents one of the highest areas of exposure for insurance carriers. Some insurers exclude coverage for sexual misconduct claims and others cap the damages they will pay for sexual misconduct claims. The coverage problem occurs when a patient files a frivolous claim for sexual misconduct against a psychologist. A policy that excludes all coverage, including a legal defense, has no value in these circumstances. A policy that caps the amount of damages to be paid leaves the insured exposed to any judgments in excess of that amount, including cases settled in excess of the cap. Especially for cases that 513

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involve frivolous sexual misconduct claims, a policy that provides a full defense, even if it excludes payments for damages, may be far superior to a policy that caps all payments for defense and indemnification. This is primarily because defending sexual misconduct claims almost always will far exceed the amount of the cap. If a psychologist is found to have engaged in sexual misconduct, the consequences to his or her career may be devastating. It is almost a given that the insurer will terminate coverage and most other carriers will not insure the individual, at least in the near future. Coverage can be found, but the price will be very high. Without adequate insurance, the practitioner will not be able to serve on managed care panels or find employment in certain institutional settings. In addition, allegations of sexual misconduct are frequently reported to licensing boards, which may result in additional sanctions against the practitioner. Special provisions for settlement of a claim. The vast majority of cases against psychologists settle before trial. Settlement is the preferred option for the psychologist and the insurer because trial is always risky and the response of a jury can never be predicted with certainty. The plaintiff may wish to settle a case for the same reason. Defendants have an incentive to settle a claim if the cost of trial and the potential damages are projected to be more than the terms of the settlement, or if the plaintiff ’s case is weak and the case can be settled for less than the cost of the legal defense. Many psychologists do not believe that settling a case is in their best interest. Settlement, however, may benefit them because it avoids prolonged litigation, including depositions, a public hearing, and court testimony, as well as the uncertainty of the outcome on one’s personal reputation. In addition, settlement resolves a painful situation that frequently involves loss of income because of the time involved in litigation. The possibility always exists that a jury will award an amount that is in excess of the psychologist’s policy limits, in which case the psychologist must pay the difference. Settlement of a frivolous case generally does not have a significant negative impact on the psychologist’s practice. Large 514

settlements, however, may suggest serious misconduct and may have significant consequences. A settlement usually includes a statement that the psychologist was not guilty of the alleged infraction but that the parties have reached an agreement to resolve the matter without litigation. Insurers may address settlement procedures differently. Many policies permit the insurer to settle any claim against the insured without the insured’s knowledge or consent. An automobile policy is likely to contain such a provision. On the other hand, the policy may contain provisions that the company may not settle any claim against the insured without the consent of the insured party. The typical professional liability policy covering psychologists contains what has been called “the hammer clause.” If the insurer is able to reach a settlement agreement with the plaintiff, and the psychologist refuses to consent to the settlement, the insurer’s liability for the case would then be capped at the amount of the proposed settlement. In this option, the insurer shares the risk of not settling a case with the psychologist; there is a strong financial incentive to go along with the settlement offer. When participants reach a settlement, the insurer will pay the plaintiff, charges will be dropped, and typically the psychologist will not admit to wrongdoing or guilt. Psychologists and their personal attorneys should review any proposed settlement document carefully to ensure that the all issues are resolved.

Insuring Group Practices In group practices, the risk of exposure to litigation becomes more complicated. A suit resulting from the negligence of one member of the group may name all group members, the corporation, or the partnership as defendants. Therefore, a single incident of alleged malpractice may result in multiple suits against the practitioners in the group. Insurers vary on how they cover group practices. Some do not insure group practices. Others charge a separate premium for each owner, each employee, each independent contractor, and the group name. Others collect a premium for each professional associated with the group but do not charge a premium for the group name. Lower premiums generally are

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charged for nonpsychologist professional owners or employees (e.g., social workers and counselors). Special discounts based on group size may be available. With so many variations in pricing group policies, psychologists seeking quotations for group coverage should compare apples with apples. Policy features and coverage limitations, however, are more important than price when shopping for group insurance. One important feature to consider is the available aggregate limit of coverage in a group policy. If five independent psychologists each purchased separate policies for $1million/$3million, the total aggregate amount of insurance in force for these practitioners would be $15 million. The maximum payment for any single claim would be $1 million. If these same individuals were insured under a group policy with limits of $1million/$3million, the group would only have $1million/$3million to insure all five members. Psychologists should avoid a group policy in which all group members share the aggregate limit of coverage. Thus, the group policy with five psychologist owners should have $1million/$15million coverage available.

Purchasing Decisions Every psychologist should have some professional liability protection either through a personal policy or through an employer, and perhaps both. No psychologist should offer any professional service without coverage. We offer six important considerations when purchasing professional liability insurance. First, psychologists should consider whether to purchase claims-made or occurrence-based policies by weighing the advantages and disadvantages given their personal circumstances. For example, one psychologist left a teaching job and planned to work for only a year or perhaps 2 before retiring. Her decision rested largely on the comparative costs of 1 (or 2) years of occurrence-based premiums versus 1 (or 2) years of claims-made premiums, plus the tail. Other factors to consider when purchasing a particular policy include whether it includes coverage for the defense of licensing board complaints (which are far more common than malpractice suits);

whether the insurer offers other services, such as risk management consultation (which can be invaluable both in terms of reducing risks but also in terms of peace of mind); whether the insurer appears to have a commitment to the psychology market and financial stability (so that the psychologists will not need to shop around for another insurer in a short period of time); or whether the insurer has discounts appropriate for the practitioner (such as for completing approved continuing education courses, having a part-time versus a full-time practice, or other conditions that would lead to a discount in the premium cost). Finally, psychologists need to consider the coverage provided and whatever exclusions the insurers may put in the policies. CONCLUSION Psychologists can integrate risk management strategies into their professional work, anchor those strategies on overarching ethical principles, and fulfill their goals of protecting patients, improving the quality of services, and reducing their own legal risks. The essential goal is to develop a feedback system that both reduces the risk of a disciplinary complaint and upgrades the overall quality of treatment. That feedback system should include awareness of the patient, contextual, and therapist factors that create a risk of a complaint or a treatment failure. When involved in situations that increase risk of treatment failure or patient dissatisfaction, psychologists can use ethically based risk management strategies that improve the quality of treatment and protect themselves legally.

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Handelsman, M. M., Gottlieb, M. C., & Knapp, S. (2005). Training ethical psychologists: An acculturation model. Professional Psychology: Research and Practice, 36, 59–65. doi:10.1037/0735-7028.36.1.59 Hannan, C., Lambert, C., Harmon, C., Nielson, S., Smart, D., Shimokawa, K., & Sutton, S. W. (2005). A lab test and algorithm for identifying clients at risk for treatment failures. Journal of Clinical Psychology, 61, 155–163. doi:10.1002/jclp.20108 Harvard Work Hours Health and Safety Group. (2004). Effect of reducing interns’ work hours on serious medical errors in intensive care units. New England Journal of Medicine, 351, 1838–1848. doi:10.1056/ NEJMoa041406 Hickson, G., & Entman, S. (2008). Physician practice behavior and litigation risks: Evidenced and opportunity. Clinical Obstetrics and Gynecology, 51, 688–699. doi:10.1097/GRF.0b013e3181899c2c Johnson, A. H., Brock, C., Hamadeh, G., & Stock, R. (2001). Status of Balint groups in U.S. family practice residencies: A 10-year follow-up study. Family and Medicine, 33, 672–677. Johnson, D. (2001). How the Atlantic barons learned teamwork. British Medical Journal, 322, 563. doi:10.1136/bmj.322.7285.563 Kahn, M. W. (2008). Etiquette-based medicine. New England Journal of Medicine, 358, 1988–1989. doi:10.1056/NEJMp0801863 Klimo, G. F., Daum, W. J., Brinker, M. R., McGruire, E., & Elliott, M. N. (2000). Orthopaedic medical malpractice: An attorney’s perspective. American Journal of Orthopaedics, 29, 93–97. Knapp, S. (1996). [Ethics complaints to a state association ethics committee]. Unpublished data. Knapp, S. (2003, April). Could the Titanic disaster have been avoided? Or promoting patient welfare through a systems approach. The Pennsylvania Psychologist, 63(4), 18, 36. Knapp, S., & VandeCreek, L. (2009a, Fall). Disciplinary actions by a state board of psychology: Does gender and association membership matter? Focus on 31: Division 31 Newsletter, 7. Knapp, S., & VandeCreek, L. (2009b). Risk management: A perspective based on ethical principles. In J. Wolf, E. Allen, & L. VandeCreek (Eds.), Innovations in clinical practice (pp. 189–200). Sarasota, FL: Professional Resource Press. Kohn, L. T., Corrigan, J. M., & Donaldson, M. S. (2000). To err is human: Building a safer health system. Washington, DC: National Academies Press. Lambert, M. (2007). Presidential address: What have we learned from a decade of research aimed at improving psychotherapy outcome in routine care?

Psychotherapy Research, 17, 1–14. doi:10.1080/ 10503300601032506 Levinson, W., Roter, D., Mullooly, J., Dull, V., & Frankel, R. (1997). Physician–patient communication: The relationship with malpractice claims among primary care physicians and surgeons. JAMA, 277, 553–559. doi:10.1001/jama.277.7.553 Martin, M. (2000). Meaningful work. New York, NY: Oxford University Press. Montgomery, L., Cupit, B., & Wimberly, T. (1999). Complaints, malpractice, and risk management: Professional issues and personal experiences. Professional Psychology: Research and Practice, 30, 402–410. doi:10.1037/0735-7028.30.4.402 Muran, J. C., Safran, J., Gorman, B., Samstag, L. W., Eubanks-Carter, C., & Winston, A. (2009). The relationship of early alliance ruptures and their resolution to process and outcome in three timelimited psychotherapies for personality disorders. Psychotherapy: Theory, Research, Practice, Training, 46, 233–248. doi:10.1037/a0016085 National Institute for Occupational Safety and Health. (2004). Overtime and extended work shifts: Recent findings on illness, injuries and health behaviors. Retrieved from http://www.cdc.gov/niosh/doc/2004– 143/summary.html Newman, R. (2009, February 3). How Sullenberger really saved US Airways Flight 1549. Retrieved from http:// www.usnews.com/money/blogs/flowchart/2009/03/ how-sullenberger-really-saved-us-airways-flight-1549 Putnam, R. (2000). Bowling alone: The collapse and revival of American community. New York, NY: Simon & Schuster. Reese, R., Norsworthy, L., & Rowlands, S. (2009). Does a continuous feedback system improve psychotherapy outcome? Psychotherapy: Theory, Research, Practice, Training, 46, 418–431. doi:10.1037/a0017901 Roe, R. (2002). What makes a competent psychologist? European Psychologist, 7, 192–202. doi:10.1027//1016-9040.7.3.192 Rudd, M. D. (2006). Assessment and management of suicidability. Sarasota, FL: Professional Resource Press. Rudd, M. D., Joiner, T., Brown, G., Cukrowicz, K., Jobes, D., Silverman, M., & Cordero, L. (2009). Informed consent with suicidal patients: Rethinking risks in (and out) of treatment. Psychotherapy: Theory, Research, Practice, Training, 46, 459–468. doi:10.1037/a0017902 Rudd, M. D., Mandrusiak, M., & Joiner, T. (2006). The case against no suicide contracts: The commitment to treatment statement as a practice alternative. Journal of Clinical Psychology, 62, 243–251. doi:10.1002/jclp.20227 517

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Sternlieb, J. (2008). Teaching housekeeping: Learning to manage the emotional impact of patient care. Families, Systems, and Health, 26, 356–364. doi:10.1037/a0013059 Studdert, D., Mello, M., & Brennan, T. (2010). Defensive medicine and tort reform: A wide view. Journal of General Internal Medicine, 25, 380–381. doi:10.1007/ s11606-010-1319-8 Studdert, D., Mello, M., Gawande, A., Gandhi, T., Kachalia, A., Yoon, C., . . . Brennan, J. (2006). Claims, errors, and compensation payments in medical malpractice litigation. New England Journal of Medicine, 354, 2024–2033. doi:10.1056/ NEJMsa054479 Stulz, N., Lutz, W., Leach, C., Lucock, M., & Barkham, M. (2007). Shape of early change in psychotherapy under routine outpatient conditions. Journal of Consulting and Clinical Psychology, 75, 864–874. doi:10.1037/0022-006X.75.6.864

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APA Handbook of

Ethics in Psychology

APA Handbooks in Psychology

APA Handbook of

Ethics in Psychology volume 2 Practice, Teaching, and Research

Samuel J. Knapp, Editor-in-Chief Michael C. Gottlieb, Mitchell M. Handelsman, and Leon D. VandeCreek, Associate Editors

American Psychological Association • Washington, DC

Copyright © 2012 by the American Psychological Association. All rights reserved. Except as permitted under the United States Copyright Act of 1976, no part of this publication may be reproduced or distributed in any form or by any means, including, but not limited to, the process of scanning and digitization, or stored in a database or retrieval system, without the prior written permission of the publisher. Published by American Psychological Association 750 First Street, NE Washington, DC 20002-4242 www.apa.org To order APA Order Department P.O. Box 92984 Washington, DC 20090-2984 Tel: (800) 374-2721; Direct: (202) 336-5510 Fax: (202) 336-5502; TDD/TTY: (202) 336-6123 Online: www.apa.org/pubs/books/ E-mail: [email protected] In the U.K., Europe, Africa, and the Middle East, copies may be ordered from American Psychological Association 3 Henrietta Street Covent Garden, London WC2E 8LU England AMERICAN PSYCHOLOGICAL ASSOCIATION STAFF Gary R. VandenBos, PhD, Publisher Julia Frank-McNeil, Senior Director, APA Books Theodore J. Baroody, Director, Reference, APA Books Kristen Knight, Project Editor, APA Books Typeset in Berkeley by Cenveo Publisher Services, Columbia, MD Printer: Edwards Brothers, Ann Arbor, MI Cover Designer: Naylor Design, Washington, DC Library of Congress Cataloging-in-Publication Data APA handbook of ethics in psychology / Samuel J. Knapp, editor-in-chief; Michael C. Gottlieb, Mitchell M. Handelsman, and Leon D. VandeCreek, associate editors. v. cm. — (APA handbooks in psychology) Contents: v. 1. Moral foundations and common themes — v. 2. Practice, teaching, and research. Includes bibliographical references and index. ISBN-13: 978-1-4338-1000-8 ISBN-10: 1-4338-1000-X ISBN-13: 978-1-4338-1001-5 ISBN-10: 1-4338-1001-8 [etc.] 1. Psychologists—Professional ethics. 2. Professional ethics. I. Knapp, Samuel. II. American Psychological Association. BF76.4.A635 2012 174⬘.915—dc22 2011002499 British Library Cataloguing-in-Publication Data A CIP record is available from the British Library. Printed in the United States of America First Edition DOI: 10.1037/13272-000

Contents

Volume 2: Practice, Teaching, and Research Editorial Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Part I. Ethical Issues With Subpopulations, Specialized Settings, and Emerging Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chapter 1. Treating Children and Adolescents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Gerald P. Koocher and Jessica Henderson Daniel Chapter 2. Ethical Considerations in the Psychological Evaluation and Treatment of Older Adults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Shane S. Bush Chapter 3. Ethical Issues in Multiperson Therapy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Linda K. Knauss and Jeffrey W. Knauss Chapter 4. Assessment and Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Donald N. Bersoff, David DeMatteo, and Elizabeth E. Foster Chapter 5. The Health Care Setting: Implications for Ethical Psychology Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Stephanie L. Hanson and Thomas R. Kerkhoff Chapter 6. Ethical Challenges in Forensic Psychology Practice . . . . . . . . . . . . . . . . . . . . . . 91 Michael C. Gottlieb and Alicia Coleman Chapter 7. School Psychology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Susan Jacob and Megan M. Kleinheksel Chapter 8. Ethics in Industrial–Organizational Psychology . . . . . . . . . . . . . . . . . . . . . . . . 149 Joel Lefkowitz Chapter 9. Life and Executive Coaching: Some Ethical Issues for Consideration . . . . . . . . 169 Sharon K. Anderson, Patrick Williams, and Allison L. Kramer Chapter 10. The More Things Change, the More They Stay the Same: Ethical Issues in the Provision of Telehealth . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Anthony S. Ragusea Chapter 11. Positive Ethics Applied to Public Education Through Traditional Media and the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 David J. Palmiter Jr.

v

Contents

Part II. Ethical Issues of Academic and Training Psychologists . . . . . . . . . . . . . . . . . . . 217 Chapter 12. Creating Ethical Academic Cultures Within Psychology Programs . . . . . . . . . 219 Peter A. Keller, J. Dennis Murray, and David S. Hargrove Chapter 13. Negotiating the Complex Ethical Terrain of Clinical Supervision . . . . . . . . . . 261 Rodney K. Goodyear and Emil Rodolfa Chapter 14. Teaching Ethics: Models, Methods, and Challenges . . . . . . . . . . . . . . . . . . . . 277 Elizabeth Reynolds Welfel Part III. Ethical Issues in Scholarship and Research . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Chapter 15. Ethics Issues in Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Jeffrey E. Barnett and Linda F. Campbell Chapter 16. The Responsible Conduct of Psychological Research: An Overview of Ethical Principles, APA Ethics Code Standards, and Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Celia B. Fisher and Karyn Vacanti-Shova Chapter 17. Research With Vulnerable Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Joan E. Sieber Chapter 18. Ethical Issues in Internet Research. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 Michael Hoerger and Catherine Currell Chapter 19. Deception in Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 Allan J. Kimmel Chapter 20. Laboratory Animal Research Ethics: A Practical, Educational Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Jennifer L. Perry and Nancy K. Dess Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

vi

Editorial Board

EDITOR-IN-CHIEF Samuel J. Knapp, EdD, ABPP, Director of Professional Affairs, Pennsylvania Psychological Association, Harrisburg ASSOCIATE EDITORS Michael C. Gottlieb, PhD, ABPP, Independent Practice, Dallas, TX Mitchell M. Handelsman, PhD, Professor of Psychology and CU President’s Teaching Scholar, University of Colorado Denver Leon D. VandeCreek, PhD, ABPP, Professor, School of Professional Psychology, Ellis Human Development Institute, Wright State University, Dayton, OH

vii

PART I

ETHICAL ISSUES WITH SUBPOPULATIONS, SPECIALIZED SETTINGS, AND EMERGING AREAS

CHAPTER 1

TREATING CHILDREN AND ADOLESCENTS Gerald P. Koocher and Jessica Henderson Daniel

Practicing psychotherapy with children and adolescents presents many practical ethical considerations quite different from those that apply when dealing solely with adult clients. To begin with, children do not have the same legal rights normally accorded adults. In addition, between infancy and adulthood, human beings pass through a range of developmental changes that cut across cognitive, emotional, social, and physical capabilities. Psychotherapists who plan to work with children and adolescents must understand and take full account of these unfolding developmental trajectories. Because they depend on adults who have legal responsibility for them, we cannot effectively engage children and adolescents in mental health care without involving their parents or guardians. All of these factors contribute to the complexity of considering the ethical nuances in providing such services (Koocher, 2008). CONCEPTUALIZING “THE CLIENT” As a result of their developmental immaturity and vulnerabilities, children must rely on caring adults to look out for their best interests. Although they do not always seem to believe it, adolescents too require structure, parental guidance, and oversight. In most circumstances, adult caregivers do attend effectively to the needs of children, but in some instances the adults allow their own needs and concerns to take precedence and create potentially conflicting interests. The interaction of legal and developmental status with family context and culture create a dizzying array of factors to consider in

addressing ethical issues in child and adolescent psychotherapy. For the sake of simplicity, readers should assume that our use of the words child or children include any clients up to the age of legal majority status, unless we focus in on a specific agerelated topic (e.g., the sexually active teenager). In the pages that follow, a consistent theme focuses on deftly balancing the ethical obligations to multiple layers of clients (Koocher, 2008). Most obviously, the child stands as the primary and most vulnerable person in the hierarchy. The psychotherapist also owes a professional duty to the child’s parents and will often engage them in individual or dyadic conversation aimed at advancing the child’s progress. From an historical perspective, it seems worth noting that in one of the earliest recorded cases of child psychotherapy, the case of “Little Hans” (Freud, 1909), Freud treated a child with a fear of horses by coaching his father to deliver the actual therapy. We now know the identity of “Little Hans” to be Herbert Graf, and his father Max Graf was a member of Freud’s inner circle (Sigmund Freud Archives, 2010). Much as we count on parents today in implementing treatment strategies outside the therapist’s office, Freud engaged his friend as the instrument of treatment for the child. At times, the parents of the child client will have emotional issues of their own or will seek to have the therapist “fix” a perceived problem in the child seen mostly (or solely) by them. At other times, third parties in the child’s environment (e.g., extended family members, neighbors, school

DOI: 10.1037/13272-001 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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authorities, clergy, or others) will prevail on parents to seek therapy for the child. Despite some likely common concerns, each party will have its own perspective and may seek to engage the therapist in some way. The therapist, in turn, will often try to use all possible sources of positive influence and support to help the child overcome the challenges leading to the treatment referral. As treatment progresses, the therapist will need to remain mindful of the responsibilities owed to each layer while holding the well-being of the child paramount.

Practitioner Competence One of the most challenging and often overlooked ethical issues in providing mental health services to children and families involves practitioner competence. A national shortage of child mental health practitioners exists, which has drawn the attention of many individuals with narrow bands of professional competence. Some of these clinicians have experience working with adult clients or couples and find themselves migrating into family work (involving children), despite having an inadequate academic or clinical background. Similarly, some practitioners with credentials in school psychology or behavior analysis have increasingly sought to practice in contexts or with populations that exceed their academic and experience backgrounds. Some people with school psychology credentials also acquire strong backgrounds in developmental psychopathology and psychotherapy, and many psychologists with strong clinical, counseling, or school psychology backgrounds also have highly specialized technique-oriented training. However, a state department of education credential as a “certified school psychologist” or a credential attesting to one’s status as a “board certified behavior analyst” does not attest to skill in diagnosing childhood psychopathology or implementing a range of psychotherapeutic protocols in the context implied by holding a specialization in clinical child, pediatric, or other recognized field of psychology. Even though every one of the mental health professions and kindred professional groups calls upon its members to practice ethically and only within their realm of competence, not all practitioners evaluate their own competence conservatively. Many such individuals will not come to the attention of public 4

authorities or licensing boards unless or until something goes very wrong in their work and formal complaints or litigation result. When in doubt, the wisest course in evaluating one’s own competence should involve collegial discussions with others who have no conflicts of interest in offering advice.

Children Presenting for Treatment Children rarely present themselves for psychotherapy. The decision to seek psychological treatment for a child usually begins with adults’ wishes to change some aspect of the child’s behavior. The child will not necessarily share the same enthusiasm for such intervention as the parents, school authorities, juvenile justice officials, or medical personnel who initially came up with the idea. Usually, responsible adults must authorize treatment of the child, including making arrangements to pay for the services. At various points, mental health clinicians may find themselves asked to take on roles as advisor, expert, service vendor, advocate, mediator, or rescuer (not to mention fool or meddler), with members of the family viewing the therapist differently, depending on their own experiences and perspectives. Regardless of the events and individuals that brought the child to the clinician’s office, the practitioner retains responsibility to remain aware of and promote ethically appropriate care. This chapter seeks to foster recognition of the central ethical issues that ought to guide clinicians as they initiate treatment and progress through the course of psychotherapy with child clients, raising issues that commonly trigger ethical concerns along the way. INITIATING THE THERAPEUTIC RELATIONSHIP

Understanding Competent Decision Making One of the essential elements of beginning psychotherapy involves establishing a therapeutic alliance or contract—a meeting of the minds on the activities to follow and a common basis of working together. Part of this involves communication on the nature of the therapy, the working arrangements, limits of confidentiality, and other formal business or legal expectations, but forging a therapeutic alliance and

Treating Children and Adolescents

working relationship of emotional trust will become essential to a successful outcome. The first step involves obtaining consent to treatment. However, one can only give consent in the context of competence. Our legal system presumes adults competent and minors incompetent to consent unless otherwise demonstrated. The assessment of competence revolves around four basic elements: 1. the person’s ability to understand information offered about the nature and potential consequences of the pending decision, 2. the ability to express a decision, 3. the manner in which the decision is made, and 4. the nature of the resulting decision. These essential elements involve psychological issues associated with comprehension, assertiveness and autonomy, rational reasoning, the ability to anticipate future events, and the ability to make judgments in the face of uncertainty or contingencies. Children will have widely variable levels of ability in these arenas but deserve appropriate engagement consistent with the level of their abilities. Fully informed decision making requires access to information, understanding, competency, voluntariness, and reasoning ability. In this context, our use of the term information requires having access to all facts that might reasonably influence the person’s willingness to participate in therapy. Competency includes the capacity to understand, the ability to weigh potential outcomes, and also the foresight to anticipate the future consequences of the decision. Voluntariness involves the freedom to choose to participate or to refuse. Reasoning ability refers to the capacity to render a reasoned choice and express it clearly. In addition to limitations related to developmental immaturity, children will also vary widely in their exercise of decision making across these categories by virtue of degree to which cultural contexts permit expression of their wishes.

Consent, Permission, and Assent When considering the interaction of developmental stages with competence to give consent, distinguishing among the terms consent, permission, and assent becomes critical. To give consent, people must have

the ability to understand the facts and consequences relative to a decision and manifest that decision voluntarily for themselves. We often see the word consent preceded by the adjective informed, implying that the decision maker has and understands all of the relevant data needed to reach a reasoned decision. In a very real sense, the term informed consent represents a redundancy, because uninformed consent constitutes an oxymoron. One cannot truly give consent if partially uninformed. Often the person must meet a legal age requirement, typically age 18, for any decision based on consent to qualify as legally valid or binding. Because one can give consent only for oneself, the concept of proxy consent or permission comes into play when legal authorization on behalf of a minor child must come from a parent or legal guardian. The concept of assent recognizes that minors may not, as a function of their developmental level, have the capacity to give fully reasoned consent, but may still express a preference. The concept of seeking assent recognizes the involvement of the child in the decision-making process while also indicating that the child’s level of participation remains less than fully autonomous (Koocher & Keith-Spiegel, 1990; Melton, Koocher, & Saks, 1983; Molin & Palmer, 2005; Parekh, 2007; Pinnock & Crosthwaite, 2005). We do not mean to suggest that children should have the blanket ability to refuse therapeutic intervention proposed by their parents or guardians. Rather, we recognize the ethical obligation and sound practice seeking to develop an active and collaborative therapeutic alliance with the child who becomes a client at the behest of others. The law presumes adults competent and children incompetent in virtually all legal contexts. Judges may allow children to express preferences in some legal contexts (i.e., referred to as “hearing the voice of the child”). Children may also find themselves treated as adults in a variety of special circumstances, generally requiring a qualifying process (e.g., when a minor becomes emancipated or a juvenile offender faces transfer for trial in adult court because of the seriousness of criminal charges). On most occasions, however, the process by which the courts deem a minor competent for any given matter varies widely as a function of both the case context 5

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and the willingness of the court to consider input related to elements of psychological maturity related to competence. Psychologists certainly recognize that many legal minors may have the intellectual and emotional maturity to make decisions at least as competently as many adults, and sometimes more competently than their own parents. In addition, many states’ laws provide for circumstances in which minors may make decisions independently of parental authority. Although the nuances vary from jurisdiction to jurisdiction, these may involve the right to seek some types of medical care (e.g., substance abuse treatment, contraception, treatment for sexually transmitted diseases, termination of pregnancy, and even seeking psychotherapy). For all these reasons, the psychotherapist working with children and their families must have a clear grasp of the legal status and decision-making authority of the various people they will deal with in their professional role (Potter, 2004). Although a small number of states (e.g., the Commonwealth of Virginia) permit minors to consent to psychotherapy independently of their parents, such authority represents an exception to the norm. In some states, therapists could conceivably offer some types of counseling as an adjunct to a minor’s right to seek, without parental consent, birth control or treatment for sexually transmitted diseases or substance abuse. Usually, however, a parent’s permission would be needed to undertake psychotherapy with a minor client (Koocher, 1995, 2003). If children want to refuse treatment authorized by a parent, they will most likely have no legal recourse, even if the proposed treatment involves inpatient confinement (Koocher, 2003; Melton et al., 1983; Weithorn, 1987; Weithorn, Sparta, & Koocher, 2006). The courts have tended to assume that the mental health professional called on to hospitalize or treat the child at the parent’s behest serves as an unbiased third party who can afford the child due process rights and adequately assess what serves the child’s best interests (J.L. v. Parham, 1976; Parham v. J.R., 1979). Some mental health professionals have argued that the best interests of parents do not necessarily align with those of their children, and that mental health professionals do not always function in the idealized unbiased third-party role imagined 6

by the courts (Koocher, 1983; Melton et al., 1983; Weithorn, 1987; Weithorn et al., 2006).

Are Parents Always the Best Decision Makers? Courts have historically treated children as valuable property of their parents. In many societies, children have represented a means of establishing a labor force or to provide parental support during old age. In our own legal system, the Supreme Court has long held that parents possess a “right of control” over their children (Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925). Courts have also recognized that parents may not always make optimal decisions by limiting them from making religious “martyrs of their children” (Prince v. Massachusetts, 1944, p. 170). It is interesting that such restrictions did not arise from an enlightened view of children’s rights but rather as an assertion of society’s interest in the socialization of children. Not until the mid-1960s did the Supreme Court regard children as “persons” within the meaning of the Fourteenth Amendment, which applies the Bill of Rights to all of the states (In re: Gault, 1967). The essential concept in making treatment decisions for children involves the process of substituted judgment, where parents make decisions on behalf of their legally incompetent children, presumes a great deal. Most notably, it assumes that the person making the decision will act in this capacity on the child’s best interests (i.e., without a conflict of interests). Even within totally loving, intact families, not all parental decisions regarding their children occur without conflicts of interest. Although parents often subordinate their needs and preferences to the best interests of their children (or to what they believe is their children’s best interests), they do not always do so. The courts have traditionally respected the sanctity of the family unit and only reluctantly become involved unless clear evidence of abuse, neglect, or similar dramatic turns of events comes to public attention. In the vast majority of situations, deference to parental authority works well. Unfortunately, the threshold for societal intervention often lies well beyond the level where psychological problems first occur. Many errors or decisions against

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the child’s best interests do not come to the attention of authorities or reach a level where legal intervention becomes possible, despite the fact that psychological harm may be occurring. Physical abuse and neglect present themselves much more clearly and dramatically than emotional abuse or neglect, although the latter can leave much more lasting scars.

Setting Expectations at the Outset When parents present their child for psychotherapy, the ethical clinician will want to carefully establish mutual expectations regarding the process of how treatment will proceed. Many of these issues will not differ from those discussed with adult clients (e.g., how often will we meet, who will pay for services, what treatment approaches the therapist will use, etc.). However, many key issues will differ when the focus of treatment involves children and families, including questions such as the following: Who is the client, how does confidentiality apply, and how will the therapist manage differing parent and child goals or preferences? Client status becomes complex in child treatment because, although the focus remains on the child, collateral work with parents or other family members often proves essential to success. In such cases, the clinician will typically want to categorize parents as limited purpose clients, meaning that some but not all normal expectations of clients apply. For example, assume that a child psychotherapist agrees to treat 9-year-old Monica for anxiety related to starting at a new school. The therapist will most likely want to engage the parents in the treatment process at various points. Suppose that during a meeting with Monica’s mother, the parent expresses some emotional issues of her own, including suicidal ideation. In such a situation, the clinician would owe a duty of care to the mother that might involve making a referral for psychotherapy of her own or even transfer to an emergency care facility, depending on the acuity of the mother’s symptoms. However, Monica’s therapist has no ongoing obligation to provide treatment for her mother’s depression. Rather, the role of the psychotherapist in relation to Monica’s parents involves guidance in the child’s treatment. In some ways one could conceptualize

this as a multiple client situation, akin to group or family therapy, but one in which the needs of a particular individual hold special status with attendant professional obligations. Clinicians will want to clearly delineate the parameters and priorities of their focal responsibility at the start of the professional relationship and as often as necessary as treatment continues. Confidentiality in child psychotherapy also requires special consideration at the start of the treatment relationship. In essence, the law generally accords confidentiality to children only to the extent permitted by their parents. For example, with few exceptions, state and federal laws generally grant parents full access to the medical and mental health records of their minor children. The exceptions, referred to earlier in this chapter, might include decisions by adolescents to seek contraception assistance or treatment for sexually transmitted diseases. With very young children, confidentiality concerns will not often become a significant concern, but adolescents certainly will have privacy concerns (Condie & Koocher, 2008). One strategy for addressing these concerns could involve having a parent–child conference prior to beginning therapy. For example, the therapist might begin addressing the adolescent and parents together by noting, Psychotherapy works best when people have confidence in the privacy of their conversations. At the same time, parents do want to feel confident about their child’s well-being and safety. Since parents were once teenagers, you certainly know that an adolescent may want to use therapy to talk about sex, alcohol, smoking or other activities that parents may not approve of. Let’s talk about how we can assure your child of confidentiality so s/he can talk openly about what’s on her/his mind and at the same time assure your parents about your safety. Some state laws also provide for confidentiality agreements between health care providers and parents that afford adolescents greater degrees of privacy, and Federal law will support state statutes in such circumstances (U.S. Department of Health and Human Services, 2003). Having a conversation of 7

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this sort can form a foundation on which parents will respect their adolescent’s confidentiality while trusting the therapist to focus on safety and to take protective steps, should they become necessary. Of course, such conversations also require a therapist to think through the continuum of potential adolescent behaviors and the nature of confidentiality breaches that might become warranted at various points. Consider the case of a teenager we will call Donna. Assume that Donna is a 16-year-old high school sophomore who has come to treatment with the support of her parents for help with mild depression and concerns about peer acceptance. Several weeks into treatment Donna tells her therapist about a boy she has begun dating. She reports that his parents will be away for the weekend and that she plans to “do it” with the young man on Saturday night. On the surface Donna has disclosed plans for consensual sexual activity. At 16, she is over the legal age of consent in your state. As a concerned psychotherapist you can certainly discuss such decisions with Donna, including social pressures, safe sex practices, and the other implications of her decision. However, should Donna’s plans remain confidential, or would some parental disclosure be warranted? When you think you have a sound answer in mind, consider the following scenarios. Suppose that Donna’s planned tryst involved an 18-yearold high school senior, an unemployed 22-yearold she met online, a 30-year-old teacher, or a local drug dealer who wanted to swap sex for his wares? Forget the weekend; suppose they plan to run away together. Now suppose that Donna is 14 or 15 years old, below the state’s legal age of consent. At that age, sexual intimacies, even with a peer and no coercion, might result in charges of statutory rape. Suppose alcohol, marijuana, Ecstasy, or other drugs become part of the plan. How do such variations play into your mental calculus considering client welfare, therapeutic alliances, confidentiality, and possibly mandatory reporting obligations? The potential variations seem infinite, but in ideal circumstances the therapist, child, and parents will consider these issues in the context of confidentiality together before therapy gets fully underway. 8

Record Keeping The key to ethical management of clinical records in the treatment of children requires attention to confidentiality, family member contacts, and access concerns above and beyond the usual ethical issues associated with good record-keeping practices. As with any client, the clinician will want to accumulate a substantial clinical record that documents essential aspects of care (e.g., reason for referral, background information, treatment plans, dates of service, session notes, etc.). One may also choose to keep separate psychotherapy notes as described under Health Insurance Portability and Accountability Act privacy rule regulations (Koocher & Keith-Spiegel, 2008; Welty, 2010). However, the child psychotherapist must give some thought to several different issues alluded to earlier in this chapter. Parents have varying views on access to their child’s records and may change their mind over time. Parents, siblings, or other family members may participate in the child’s sessions, meet individually with the child’s therapist, or have other communications (e.g., by phone or electronic mail) with the therapist. In the real world, parents become angry with each other, families break up, and legal proceedings may follow. As described earlier, confidentiality discussions and any special agreements regarding the child’s records should be discussed and documented at the outset of the professional relationship. Notation of such conversations and any signed documents that result should become a part of the child’s record. In order for the notes of psychotherapists to qualify as “psychotherapy notes” under Federal law, they must be separated from the rest of the child’s medical record. Similarly, psychologists should consider keeping notes of family sessions or individual contacts with family members separate from the child’s clinical file. Such partitioning of files, even through the use of separately headed pages in the same paper or electronic folder, affords greater privacy protections to all parties. For optimal protection, we recommend keeping notes that concern family sessions or only one parent in separate folders. For example, suppose that primary client Billy Jones, age 8, is seen in weekly psychotherapy, but occasional sessions take place with both of Billy’s parents and his 11-year-old sister

Treating Children and Adolescents

present. In addition, you occasionally meet with one Jones parent to offer behavior management suggestions or provide private updates on Bill’s progress. You might create a master folder for “Jones, Billy and family.” In a paper file, this would include distinctly separated separate folders or sections labeled as “Billy’s sessions,” “family sessions,” “meetings with mother,” and “meetings with father.” In an electronic record a folder and subfolders could serve the same task. Such distinct demarcation will make responding to particular authorized requests for information or court-ordered releases simpler. Suppose, for example, that parents decide to divorce some months after their child begins psychotherapy. Suppose also that one or both of the parents had met with you individually regarding the child’s treatment and had made disparaging comments about the other parent or had revealed some embarrassing personal problem. In a subsequent custody dispute, parents may seek access to the child’s records hoping to find ammunition for use in their litigation. In some jurisdictions, the child’s records may have some level of privacy protection, but suppose the parent demanded access to notes taken in an individual meeting that the parent had with the therapist. If such notes are kept separately, the therapist can provide the parent’s own record apart from any notes on meetings with the child or the other parent. Fortunately, such scenarios occur only rarely; however, when they do, the potential for manipulation and angry acting-out by the adults runs high. Another consideration when treating child clients involves obligations to maintain and dispose of records properly. Most states have regulations that specify a minimum period required for maintaining clinical records. Typically, individual care providers must keep records for 5 to 7 years from the last professional service rendered or at least 1 year after a child attains the age of majority, whichever is longer. As a result, a psychotherapist who treats a preschooler may incur an obligation to keep a copy of the case records for 15 or more years. Thanks to the availability of magnetic and optical storage media, one need not invest in large file cabinets. However, one must make sure to maintain the security of files in whatever form. When disposing of records, the

therapist has an obligation to make sure that adequate destruction occurs. When service is delivered through an institution such as a hospital or clinic, individual practitioners can leave the proper maintenance or destruction of records to the designated institutional officials. Therapists should consider regularly disposing of records as the appropriate date occurs and arrange for some appropriately qualified person to take on that task in the event of their death or incapacity. AS TREATMENT PROGRESSES As treatment progresses, psychologists need to consider mandatory reporting laws and high-risk behavior by adolescents. Thinking through what could potentially happened and putting a contingency plan in place will make things run much more smoothly when a challenging problem arises.

Mandatory Reporting Laws Every U.S. and Canadian jurisdiction has a statutory provision for the mandatory reporting of child endangerment by acts of commission (e.g., abuse) or omission (neglect). Such statutes protect both the vulnerable child and the mandated reporter, although psychotherapists who find themselves in such situations rarely feel comfortable about making the difficult decisions triggered by the law. The threshold in some states involves “reason to believe” or “reasonable suspicion” that a child has suffered harm or faces such a risk. The nature and the definitions of the acts that qualify as reportable vary from state to state but typically include nonaccidental injury, neglect, sexual abuse, or exploitation or emotional abuse. When designated professionals (typically including any child care or health care provider, educator, or licensed mental health practitioner) encounter such situations in the course of their professional work, they must usually make an immediate oral report followed by a written report to state authorities. Failure to do so can result in criminal prosecution and licensing board complaints. The mandated nature of the reporting obligation does offer a degree of protection to the professional who makes a report in good faith. State laws generally protect such reporters from defamation suits by 9

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those they report. In addition, such laws often protect reporting professionals from retaliation by employers who might otherwise wish to conceal the problem or avoid bad publicity. The protection of the reporter flows from the legal mandate that they must report, but the challenge comes from uncertainty about the reporting threshold and concerns about the consequences to one’s client. For example, if reporting might lead to removal of a child from the family and placement into foster care as well as destruction of an ongoing therapeutic relationship, a psychotherapist might feel tempted to overlook the mandate and attempt to manage the case via the treatment relationship. In some states where underfunded or poor quality child protective services struggle to manage their caseload the temptation to avoid reporting may increase. It is possible for the psychologist to become cynical or skeptical of the value of such reporting laws. For example, the psychologists may have had past experiences with the child protective services agency in which the agency staff failed to identify child abuse in a case where abuse seemed obvious to the psychologists. In such cases parents often drop out of treatment, leaving the child without any protective services from the state and without the benefit of having the parents involved in therapy. In such instances, therapists must remember that they lack the resources and authority to truly evaluate and manage such risky situations. Therapists do have options that can allow them to maintainthe treatment relationship while fulfilling their legal obligations. For example, in cases that require reporting of an incident, but do not require urgent removal of a child from the home, the therapist may find it possible to engage the parent in the reporting process while assuring the child protective service that treatment will continue. Establishing a partnership between the parent and the state agency to keep the family unified can often turn on the availability and reassurance of a therapist who knows the family well. Not every reportable incident will have a positive outcome, but the practitioner must focus on protection of the vulnerable client with a clear recognition of what they can and cannot do as an individual mandated reporter and therapist. 10

Adolescents Behaving Badly As a normal aspect of their development, adolescents take risks in quest of growth and development. Some engage in high-risk behaviors that may involve alcohol, bullying, drugs, sexual activity, or even criminal activity. Obviously, adults also engage in such behaviors, but the primary ethical issues that arise when the client is a child involve their legal and familial context. As noted earlier, minor children usually fall under the protective responsibility of an adult parent or guardian, and the psychotherapist must take account of that fact with respect to matters of decision making and confidentiality. We have also noted statutory reporting mandates aimed at child protection. Other issues that require some attention include “status offenses,” or acts that qualify as subject to legal intervention because of the age of the perpetrator. Minors who run away from home fall in this category, and more recently we have seen a dramatic increase in laws addressing bullying that require intervention by school authorities and others who work with children in settings where bullying may take place. When adults bully each other in public or the workplace, the behavior often escapes the attention of authorities, unless or until it qualifies as actionable harassment and someone complains or physical injury occurs. Psychotherapists will occasionally become aware of bullying as they encounter both perpetrators and victims in their work. In such cases, the therapist must remain aware of statutes that may require specific actions on their part because of their particular state laws or work setting. Anticipation of responding to such matters may warrant discussion in the context of confidentiality information at the outset of the treatment relationship. SPECIAL CLINICAL CONSIDERATIONS Among other concerns, psychologists need to consider special issues when dealing with high-conflict families or with children from diverse backgrounds and ways to handle family secrets. A degree of thoughtful advance planning and the ability to recognize and respond of cultural and ethnic differences will go a long way toward preventing problems.

Treating Children and Adolescents

High-Conflict Families Treating children in families where conflict between the parents runs high poses a number of special challenges. Typically, these situations will involve cases where parental divorce is pending or where high conflict levels remain in the aftermath of a divorce. In such families the children will often feel trapped between two adults who continue to feud with each other (i.e., their parents) while attempting to deal with a plethora of other stressful changes, which may include reduced family income, changes in school and residence, new blended family members, and shuttling between residences. When treating such families, maintaining clear lines of authority and role clarity becomes critical. We recommend against accepting treatment cases with a divorce or custody dispute in the background unless both parents grant permission. Exceptions might include taking on a child treatment case with permission of only one parent when the other parent is incarcerated, when their location is not known, when they have lost their parental rights in a legal proceeding, or when the court has designated the therapist for purpose of treatment. Never take the word of one parent that they have sole legal custody or that the other parent has agreed. In such cases, always ask to see the custody agreement and attempt to talk with the other parent to confirm agreement. Use particular caution when a parent seeks evaluation or treatment with a vague referral to something not seeming quite right in the other parent’s home. Engaging both parents before agreeing to provide services minimizes any potential for misunderstanding and subsequent ethical complaints about unauthorized service delivery. When designing a consent-to-treatment form for parents in families where divorce remains an option or has occurred, consider including several key elements. The parents’ should agree in writing to allow treatment of their child and confirm their understanding that such treatment will not constitute a forensic service (i.e., any type of evaluative process for legal proceedings). In so doing, they should agree that during and after their divorce they will not seek the child’s treatment records or seek testimony from the child’s therapist in any disputes over custody or visitation. The clinician should also exercise care in

completing their clinical records and less formal psychotherapy notes to exercise caution in making comments about either parent. In addition, the parents should specifically agree to arrangement for payment for the therapist’s services and the process for approving any changes (e.g., how often will the child be seen, how will any changes be approved, who will pay for any consultation sessions with one parent, etc.). These steps help frame the treatment as intended to help the child and reduce the likelihood that parents will seek to turn a therapist’s recommendations into a competitive legal strategy. Such a document will also assist the therapist if one or both parents change their minds about such agreements later. If subpoenaed, therapists can show the agreement to the judge and clearly reiterate that they have not conducted a forensic evaluation. Judges will often seek to respect such prior agreements.

Diversity Considerations The “principles” section of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2010) asks us to aspire to become familiar with cultural and linguistic matters necessary to work effectively with diverse client populations. In particular, Principle E includes the following language: Psychologists are aware of and respect cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status and consider these factors when working with members of such groups. Most of us would like to think of ourselves as well-intentioned people who will welcome and work with almost any client, but such reasoning can keep us blind to aspects of our own relative ignorance in some respects. No one can develop the competence necessary to work with every potential client they will encounter in their career; however, all can develop sensitivity to cultural, racial, ethnic, and religious differences that help us to recognize what we do not know and to seek additional training or refer clients elsewhere with the clients’ best interests in mind. 11

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As one example of such issues, consider the growing number of interracial marriages in the United States. Think about how this phenomenon raises interesting questions of competence and ethical sensitivity when the children of such relationships arrive in the offices of clinicians unfamiliar with core issues faced in such families. Consider the following scenarios. A biracial couple divorces, and the parents share legal custody of their children. The most common patterns of racially mixed marriages are Black men with White women and White men with Asian women (U.S. Census Bureau, 2006). One parent remarries and decides to relocate. If the mixed-race marriage status continues in the second marriage, then the issues of growing up as a biracial child do not become as salient. However, if the White mother remarries a White man and they decide to live in a predominantly White community, then a very different coping situation results for the child. The primary issue involves socialization as a “Black-appearing” child, especially if she or he cannot pass as White because of skin color, hair texture, and other phenotypic features. Can a White mother in a predominantly White community offer the necessary socialization to enable her biracial child to flourish? Will she have any awareness that such socialization can prove critical to manage the prejudice and discrimination the child will likely encounter in our racialized society? What thought and behavior patterns might suggest such awareness? How can you, as the child’s therapist, help to promote that child’s well-being? If you happen to be a White therapist, will you even identify this as an issue warranting your therapeutic attention? Another example is when two parents of differing faiths divorce. Do they provide their children with no religious experience, religious experiences similar to both parents, or one set of experiences? Did the parents discuss this issue prior to the births of the children? What pattern of religious practices, if any, took place in the family prior to the divorce? How deeply involved does each parent feel in a particular religion or lack of religion? At what developmental stage might the child have the ability and sense of empowerment to make a decision about religious preference? Are you, as the 12

child’s therapist, prepared to understand these issues and offer guidance? Multilingual families and international families may disagree about how to act after resettlement in the United States with respect to their linguistic and cultural origins. One way to assimilate and gain acceptance might involve speaking only English. However, such practices can often lead to a sense of alienation from the grandparent generation and an inability to communicate with relatives in the country of origin. Parents may find themselves in particular conflict about this with respect to developmentally delayed children or those having school learning problems. Divorce or separation can also trigger particular problems and conflicts for these families with respect to allowing the children to accompany the non–U.S.-born parent to their birth country for fear that the traveling parent may not return the child to the United States. Some argue that speaking the family’s native language is integral to retaining the culture. As a consequence, learning and using language in cultural context will result in a person being both bilingual and bicultural. Apart from language, an Americanized parent may differ from the less Americanized spouse or child on a number of issues that may come up in psychotherapy ranging from education to medical and dental care to arranged marriages. Are you prepared to deal with such matters as the child’s psychotherapist? Gay, lesbian, bisexual, and transgender (GLBT) also come up during child treatment in many different ways. Consider the elementary school child who insists on dressing as a member of the “opposite” gender. Or the GLBT adolescent whose sexual “acting out” troubles his or her parents. How will you handle such a case when the parent brings the child for you to fix? On the other side of the developmental continuum, how can you help your child client to cope when a parent surprises the child by “coming out” or announcing a plan for gender reassignment surgery? The only “right answer” covering all of these cases from an ethical perspective involves the need for self-awareness on the part of the therapist, along with genuine efforts to obtain the knowledge necessary to address the client’s specific needs. As an alternative, referral to others or consultation with experts when referral does not seem practical also

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helps to honor the aspirational goal of the ethical principle. ■

Family Secrets Another potential ethical minefield may come up in the course of practicing child psychotherapy with respect to family secrets. Notwithstanding clarifications about the limits of confidentiality at the start of treatment, the therapist may abruptly learn some highly relevant information that comes wrapped in a special privacy request well into the relationship. Suddenly the therapist comes into possession of clinically relevant information accompanied by a request to keep it from surfacing. Suppose, for example, that the child has been fathered by mother’s lover and mother discloses this information to the therapist in the middle of treatment. Her husband has never bonded effectively with the child, and the child has issues related to this man who has had the public role of father. Neither the biological father nor the woman’s husband knows about this situation. Over the years, comments have abounded about how the child does not look like the other siblings. Suppose that matters become further complicated because the family lives in a religious, racial, or ethnic community with strong family ties where the disclosure of such information might lead to shunning or treating of the mother and/or child as outcasts. What should the therapist do with this information in the course of the child’s treatment? Once again, no easy or uniformly applicable solution will apply. The therapist must fall back on the fundamental goals of beneficence (i.e., doing good) and nonmaleficence (i.e., doing no harm), while attempting to thread through the obligations to multiple layers of clients where the child typically remains the most vulnerable.

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OVERARCHING STRATEGIES As child psychotherapists begin their work with a focus on high ethical standards, they should keep a number overarching principles in mind. ■

Recognize that you will owe ethical duties to both the children you treat and their caregivers to varying degrees. Recognize these differences

and assist others in understanding how these will bear on your work with them. Do your best to clarify your responsibilities, including confidentiality limitations, at the outset of the professional relationship and as often as necessary thereafter when unforeseen developments occur. Consider the child’s ability to participate in treatment decisions and advocate for listening to the child’s voice as appropriate. Consider your own competence to deliver services to children and families with particular reference to each patient’s context (e.g., referral needs, diversity factors, and technical skills required). When necessary, obtain consultation to enhance your skills. Keep records in a manner that fully complies with regulatory requirements and takes cognizance of special issues that relate to minors (e.g., parental access to records, separating records of individuals in families to avoid confidentiality conflicts, and disposition of obsolete records). Recognize that families break up and that custody battles occur. Anticipate such problems and take steps to minimize the potential for disruption of the child’s treatment in the event of such developments. Never allow yourself to be drawn into a forensic evaluation role by parents or their legal counsel when serving as a child psychotherapist. Do not agree to treat a child without the consent of all the adults who hold parental rights except in very rare circumstances with clear, well-documented justification. Remain aware of diversity and individual differences that create special challenges in practicing psychotherapy, while seeking to respect differences and meet the related needs. When in doubt, consult with experienced colleagues and document the consultation in your clinical records.

References American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx 13

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Condie, L. O., & Koocher, G. P. (2008). Clinical management of children’s incomplete comprehension of confidentiality limits. Journal of Child Custody, 5, 161–191. doi:10.1080/15379410802583643

Parekh, S. A. (2007). Child consent and the law: An insight and discussion into the law relating to consent and competence. Child: Care, Health, and Development, 33, 78–82.

Freud, S. (1909). Analyse der Phobie eines fünfjährigen Knaben (“Der kleine Hans”) [Analysis of the phobia of a 5-year-old boy: Little Hans]. Retrieved from http:// www.psychanalyse.lu/articles/FreudHans.pdf

Parham v. J.R., 442 U.S. 584 (1979).

In re: Gault, 387 U.S. 1 (1967). J.L. v. Parham, 412 F. Supp. 112 (Dist. Court, M.D. Georgia, Macon Div. 1976). Koocher, G. P. (1983). Competence to consent: Psychotherapy. In G. B. Melton, G. P. Koocher, & M. J. Saks (Eds.), Children’s competence to consent. New York, NY: Plenum Press. Koocher, G. P. (1995). Child psychotherapy. In D. H. Schetky (Ed.), Child and Adolescent Psychiatric Clinics of North America: Ethics in child and adolescent psychiatry. Philadelphia, PA: Saunders. Koocher, G. P. (2003). Ethical issues in psychotherapy with adolescents. Journal of Clinical Psychology, 59, 1247–1256. Koocher, G. P. (2008). Ethical challenges in mental health services to children and families. Journal of Clinical Psychology, 64, 601–612. Koocher, G. P., & Keith-Spiegel, P. C. (1990). Children, ethics, and the law: Professional issues and cases. Lincoln: University of Nebraska Press. Koocher, G. P., & Keith-Spiegel, P. C. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press. Melton, G. B., Koocher, G. P., & Saks, M. J. (Eds.). (1983). Children’s competence to consent. New York, NY: Plenum Press. Meyer v. Nebraska, 262 U.S. 390 (1923). Molin, R., & Palmer, S. (2005). Consent and participation: Ethical issues in the treatment of children in out-of-home care. American Journal of Orthopsychiatry, 75, 152–157.

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Pierce v. Society of Sisters, 268 U.S. 510 (1925). Pinnock, R., & Crosthwaite, J. (2005). When parents refuse consent to treatment for children and young persons. Journal of Paediatrics and Child Health, 41, 369–373. Potter, R. (2004). Consent quiz: How well would you do? A survey of the knowledge of CAMHS workers of the law relating to consent to treatment in children. Psychiatric Bulletin, 28, 91–93. Prince v. Massachusetts, 321 U.S. 158 (1944). Sigmund Freud Archives. (2010). Sigmund Freud Archives release of Max and Herbert Graf interviews Re: Freud (1909), “Analysis of a phobia in a five year old boy.” Retrieved from http://www.freudarchives.org/ grafintro.htm U.S. Census Bureau. (2006). America’s families and living arrangements 2006. Retrieved from http://www. census.gov/population/www/socdemo/hh-fam/ cps2006.html U.S. Department of Health and Human Services, Office of Civil Rights. (2003). Personal representatives (45 CFR 164.502(g)). Retrieved from http://www.hhs.gov/ocr/ privacy/hipaa/understanding/coveredentities/personal representatives.pdf Weithorn, L. A. (1987). Psychology and child custody determinations: Knowledge, roles, and expertise. Lincoln: University of Nebraska Press. Weithorn, L. A., Sparta, S. N., & Koocher, G. P. (2006). The legal contexts of forensic assessment of children and families. In S. N. Sparta & G. P. Koocher (Eds.), Forensic mental health assessment of children and adolescents (pp. 11–29). New York, NY: Oxford University Press. Welty, K. (2010). Psychotherapy notes and HIPAA. Retrieved from http://psychcentral.com/lib/2006/ psychotherapy-notes-and-hipaa

CHAPTER 2

ETHICAL CONSIDERATIONS IN THE PSYCHOLOGICAL EVALUATION AND TREATMENT OF OLDER ADULTS Shane S. Bush

Good clinical practice and sound ethical practice are fundamentally intertwined; each is typically necessary for the other to be fully realized, and both must be present for older adult patients to obtain optimal outcomes from psychological services. Older adults experience in unique ways the challenges that are commonly encountered throughout the life span, and they confront psychological, physical, social, and spiritual challenges with which younger persons are unfamiliar. Similarly, older adults may experience a richness of life experiences and a psychological fulfillment that are typically unknown or underappreciated until the later stages of adult development. Understanding the challenges and capturing the richness of the individual older adult patient provides the foundation upon which the goals of treatment can be achieved, and it is the clinical and ethical responsibility of clinical psychologists to pursue such understanding. The purposes of this chapter are to describe ethical issues that clinicians should consider when evaluating and treating older adults and to present an ethical decision-making process that may facilitate the resolution of ethical challenges.

despair (Erikson, 1982; Erikson, Erikson, & Kivnick, 1986). The negative feelings that can occur with aging often result from multiple losses, including long-term relationships, social roles, financial resources, sensory and motor functioning, and cognitive abilities (Myers, 1999; Waters & Goodman, 1990). Chronic health problems, physical pain, and medication usage are encountered more by older adults than by those who are younger (Federal Interagency Forum on Aging-Related Statistics, 2006; He, Sengupta, Velkoff, & DeBarros, 2005). For these reasons, older adults more than younger adults require assistance from other people and from institutions. Late adulthood developmental challenges and their associated impact on psychological adjustment can become the focus of psychological treatment (Hays, 1999). In addition, the challenges can, and often should, become the focus of attention by clinicians because of their ethical implications. When providing psychological services to older adults, ethical practice requires that all aspects of clinical practice be viewed through a developmentally appropriate lens, with a focus on the uniqueness of each individual.

DEVELOPMENTAL CONSIDERATIONS

PRIMARY CLINICAL AND ETHICAL CONSIDERATIONS

Late adulthood offers opportunities and challenges that are either not available or not fully realized during prior stages of the life cycle. Opportunities for enrichment and fulfillment often coexist or compete with feelings of disappointment, cynicism, and

The same ethical standards and principles that govern the practice of clinical psychology and provide guidance to clinicians working with younger populations apply to and inform psychologists working

The author thanks Donna Rasin-Waters for her review of a prior version of this chapter. DOI: 10.1037/13272-002 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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in geriatric contexts. However, clinicians providing services to older adults are likely to find some ethical issues to be of more immediate relevance or more challenging than the issues of greatest focus by clinicians serving younger adults. The importance or relevance of such issues for a given patient population often lies in nuances in the application of the ethical issues to specialty practice rather than in the ethical standards or principles themselves. Having considered issues of ethical importance in clinical psychology (Pope & Vetter, 1992), counseling (Gibson & Pope, 1993), related specialty practices such as neuropsychology (McSweeny, 2004; Morgan, 2002), and themes in scholarly works related to geriatric mental health ethics (Rai, 1999; Wicclair, 1993), in an earlier work (Bush, 2009), I described aspects of practice requiring considerable ethical attention that are covered in this chapter: (a) professional competence; (b) human relations, confidentiality, and informed consent; (c) assessment; (d) treatment; (e) serving special populations; (f) health promotion; and (g) social considerations. The present chapter also addresses record keeping.

Professional Competence The knowledge and skills required of clinicians to protect and promote the welfare of older adult patients is based on a foundation of appropriate education, training, and experience (American Psychological Association [APA], 2010, Ethical Standard 2.01, Boundaries of Competence). Such preparation leads to an understanding of the scientific and professional knowledge base that underlies psychological assessment and treatment of older adults (APA, 2010, Ethical Standard 2.04, Bases for Scientific and Professional Judgments; Knight, Karel, Hinrichsen, Qualls, & Duffy, 2009). Competence in geropsychology involves three primary components: competence in clinical psychology, competence in gerontology, and competence in integrating clinical psychology and gerontology. Psychologists working with older adults must be familiar with the developmental issues encountered by both the asymptomatic members of the cohort and those experiencing psychopathology. In addition, clinicians must be adequately versed in appropriate assessment, treatment, and 16

health promotion options, including psychological, pharmacological, rehabilitative, and life-enrichment approaches. Knowledge of common medical problems experienced by older adults, and the potential cognitive and psychological effects of the conditions and the medications used to treat the conditions, is important when working with geriatric populations. With the exception of some specific practice settings, an understanding of neuropathology and its assessment and treatment also tends to be more important for clinicians serving older adults than for clinicians working with younger adults. Therefore, psychologists working with older adults are well served by having exposure to, or training in, neuropsychology. The extent of the exposure or training will vary depending on whether the clinician wants to perform neuropsychological evaluations, understand reports received from colleagues, or know when to refer for neuropsychological services. Clinical services provided to older adults often intersect with forensic activities, particularly around issues of patient decision-making capacity and competence (American Bar Association Commission on Law and Aging & APA, 2005). Psychologists working in some geriatric contexts will be well served by actively pursuing the knowledge and skill set needed to assist legal decision makers with their understanding of patients’ psychological status. There is both a current and projected shortage of geriatric mental health professionals (Clay, 2006; Rosen, 2005). Because of the need for more geropsychologists, some clinicians with general clinical backgrounds or expertise in other specialties may find opportunities to work with older adults to be appealing. However, the risk of overstepping one’s boundaries of competence is particularly great when entering a new area of practice. Psychologists who are transitioning into geriatric work from another practice context should prepare as completely as possible in advance of making the transition and then, like all clinicians, continue to develop their knowledge and skills while in the new setting. “To some extent, developing a personal plan for geropsychology training entails self-assessment of competencies by a trainee, with input from teachers, supervisors, and consultants” (Knight et al., 2009, p. 209). Professional competence must be maintained throughout

Ethical Considerations in Treating Older Adults

one’s career (APA, 2010, Ethical Standard 2.03, Maintaining Competence). Because of the rapid scientific and medical advances related to aging, and the intersections of those advances with psychology, psychologists who serve older adults have a particular responsibility to pursue continuing education. Psychologists not trained in geropsychology may ethically treat older adults if they are in an underserved location and qualified persons are unavailable, provided they take steps to establish their competence (APA, 2010, Ethical Standard 2.01, Boundaries of Competence, section D). Similarly, psychologists who lack training in geropsychology may ethically provide services to older adults in an emergency (APA, 2010, Ethical Standard 2.02, Providing Services in Emergencies). However, clinicians planning to evaluate or treat older adults on a regular basis need to undertake a more systematic effort to ensure their competence. Professional competence is not limited to assessment methods and treatment approaches. Clinicians must also establish and maintain ethical competence. Continuing education in professional ethics as applied to work with older adults can be particularly valuable and should be pursued. (More information on the issue of competence can be found in Volume 1, Chapter 6, this handbook.)

Human Relations, Confidentiality, and Informed Consent Some older adults, through choice or circumstances, become socially isolated. However, the lives of many older adults are intersected by family members, peers, caregivers, and others, not all of whom are sources of support with the patient’s best interests in mind. The interdisciplinary health care involvement that accompanies comorbid health problems can be an important resource for psychologists, or, depending on the context, an intrusive presence. For example, in skilled nursing facilities, nursing staff and others can interrupt bedside evaluations or treatment, despite attempts by the psychologist to maximize privacy. Such interruptions can invalidate test administration or adversely affect the flow of psychotherapy. Psychologists have an ethical obligation to work with other professionals in an attempt to maximize the value of their services to older adults (APA, 2010, Ethical

Standard 3.09, Cooperation With Other Professionals; Lichtenberg et al., 1998). Psychologists provide services to older adults in a variety of settings, including community-based settings, such as senior centers or home-based services; outpatient settings, such as mental health or primary care clinics; day treatment or partial hospital programs; inpatient medical, psychiatric, or rehabilitation hospitals; and long-term care settings, such as skilled nursing facilities and assisted living centers (APA Presidential Task Force on the Assessment of Age-Consistent Memory Decline and Dementia, 1998). Psychologists should understand that the ethical and professional obligations owed to patients and institutions can vary among settings. As stated in APA (2010) Ethical Standard 3.11 (Psychological Services Delivered to or Through Organizations): (a) Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probable uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions of such services to appropriate persons. For patients with impaired decision-making capacity, these issues should be discussed with their healthcare proxy when possible. At times, psychologists working in institutional settings may confront conflicts between the requirements of the facility and professional ethics. Such conflicts may occur when (a) the specific physical setting in which services must be provided is not conducive to the provision of quality services, (b) the volume of services that must be provided is not consistent with the provision of quality services, (c) questionable billing practices are “encouraged” 17

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or reinforced, or (d) any of a variety of other issues are encountered that seem to be inconsistent with ethical practice. When organizational demands conflict with professional ethics, psychologists clarify the matter, make known their commitment to professional ethics, and attempt to arrive at a solution that is consistent with ethical practice (APA, 2010, Ethical Standard 1.03, Conflicts Between Ethics and Organizational Demands). When organizational leadership proves to lack sensitivity to psychological ethics and to be inflexible about altering its requirements, psychologists face the often difficult decision about whether to remain with the organization and are guided by their personal values when making the decision. (More information on the issue of institutional conflicts can be found in Volume 1, Chapter 5, this handbook.) Family involvement in psychological services can often be extremely valuable, but the degree to which family input and involvement is welcomed by patients and clinicians varies widely. In outpatient contexts, many older adult patients rely on family members for transportation, and for patients who have memory problems or other hurdles to providing a complete and accurate account of their lives, loved ones are often a good source of information about patients’ history and functional status at home and in the community. In contrast, some family members have agendas that are inconsistent with the wishes or best interests of the patient, and they may attempt to influence the patient or the clinician in ways that are not beneficial or welcome. Family members who provide transportation or pay for the psychological services may feel entitled to some degree of involvement in, or information about, the psychological services. These situations can raise sensitive clinical and ethical questions involving third-party requests for services (APA, 2010, Ethical Standard 3.07, Third-Party Requests for Services) and confidentiality (APA, 2010, Ethical Standard 4.01, Maintaining Confidentiality), which should be carefully examined with all involved parties at the outset of the service or as soon thereafter as possible (APA, 2010, Ethical Standard 4.02, Discussing the Limitations of Confidentiality). These issues can be particularly challenging when the older adult’s decision-making capacity is in question. Although not deemed legally incompetent to 18

make decisions about treatment, many older adult patients nevertheless have cognitive or psychiatric problems that limit their ability to provide fully informed consent for psychological services, including the degree of involvement of others. Thus, the assumptions that are made about a young adult patient’s ability to understand and sign a consent form cannot always be made when working with older adults. Extra care must be taken to ensure that older adult patients can provide informed consent or, when consent is provided by a healthcare proxy, at least provide their assent to participate (APA, 2010, Ethical Standard 3.10, Informed Consent, section b; Lichtenberg et al., 1998). “The failure to assess a client’s capacity has been asserted as grounds for legal malpractice by would-be beneficiaries of a client’s largess” (American Bar Association Commission on Law and Aging & APA, 2005, p. 2). A neuropsychological evaluation can help clarify questions about decision-making capacity in such situations. (More information on the issue of informed consent can be found in Volume 1, Chapter 12, this handbook.) From a legal perspective, older adults receiving psychological services have a right to privacy and confidentiality until they give permission for their personal information to be shared with others or until they are deemed incompetent to make such decisions (APA, 2004; see also Health Insurance Portability and Accountability Act of 1996 [HIPAA]). However, recipients of information about a patient do not always need access to all of the information about the patient that the psychologist possesses. When considering disclosure of patient information, consideration of the parsimony principle and the law of no surprises is indicated (Behnke, Perlin, & Bernstein, 2003). According to the parsimony principle, only the information necessary to achieve the purpose of the disclosure should be released. According to the law of no surprises, reasonable steps should be taken to inform patients at the outset of the relationship of the circumstances under which disclosure of information to a third party will occur. It is advisable to make patients aware of requests for, and disclosure of, confidential information so that they are not surprised by such disclosures (Behnke et al., 2003). (More information

Ethical Considerations in Treating Older Adults

on the issues of confidentiality and privacy can be found in Volume 1, Chapter 13, this handbook.) In forensic contexts, persons who place their mental state at issue do not have the same rights to privacy as exists in clinical contexts (Federal Rules of Evidence, 1987). With regard to HIPAA, constraints that exist in clinical contexts are limited in forensic matters (Connell & Koocher, 2003; Fisher, 2003). For example, information compiled in anticipation of use in civil, criminal, and administrative proceedings, including determinations of competence for autonomous decision making, is not subject to the same right of review and amendment as is health care information in general (§164.524(a)(1)(ii)). In addition, HIPAA’s Privacy Rule allows covered practitioners to disclose protected health information in response to a court order (§164.524), although such disclosures should be limited to the information explicitly covered by the order. (More information on the issues of forensic work and HIPAA can be found in Chapter 6 of this volume.)

Assessment Assessment provides the foundation for subsequent clinical services, whether the services are performed by the psychologist or the results are provided to other professionals for use in mental health or medical services, or provided to the patient or family for making life decisions (e.g., whether to continue driving) or establishing other types of care (e.g., supervision in the home). The use of standardized psychometric instruments as part of the assessment process is often a valued part of evidence-based treatment, and neuropsychological assessment in particular provides an important contribution to the diagnosis of dementia and age-related cognitive decline (APA Presidential Task Force on the Assessment of Age-Consistent Memory Decline and Dementia, 1998). The selection of appropriate psychological and neuropsychological assessment measures requires a thorough understanding of the theory, research, and application of the measures with older adult populations (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1999,

Standards for Educational and Psychological Testing Standard 12.3; APA, 2004; APA, 2010, Ethical Standard 9.02, Use of Assessments; Bush & Martin, 2005). Increasing attention is being paid to developing tests and normative data sets for use with older adults (Heaton, Miller, Taylor, & Grant, 2004; Lucas et al., 2005). Nevertheless, because sensory, motor, and other limitations associated with aging threaten the ability of psychologists to assess psychological and cognitive constructs in a valid manner, clinicians must be prepared to modify testing measures or procedures to accommodate patients as needed (APA, 2004; APA Working Group on the Older Adult, 1998; Caplan & Shechter, 2005). Computerized testing is being used with increased frequency by a variety of medical and allied healthcare professionals. Clinicians should be mindful that older adults, as a group, tend to be less familiar with computers than are younger patients, and some may become quite anxious at the prospect of having to use a computer to demonstrate their cognitive abilities or describe their mood or personality traits. Prior to administering computer-based tests, psychologists should determine the patient’s level of comfort with computers, provide alternative test administration options (e.g., paper and pencil; face to face) when needed, and describe any impact that computerized administration may have had on the test results (Browndyke, 2004; Schatz, 2004). An initial step in the interpretation of test data is determining whether the data accurately represent the construct being assessed (American Academy of Clinical Neuropsychology, 2007; Bush et al., 2005). The clinician must answer the question, “Are the data valid?” The patient’s effort and honesty are among the many factors that can affect the validity of the test results. Although “malingering” per se likely occurs much less frequently with older adults in clinical contexts than it does in other contexts (e.g., forensics), poor motivation, misunderstanding of instructions, sensory deficits, and other factors can invalidate test results. Therefore, psychometric assessment of symptom validity is as necessary when testing older adults as it is when testing younger patients. The increasing validation of symptom validity indicators that are embedded within traditional neurocognitive tests has reduced reliance on free-standing symptom validity 19

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tests, which can be particularly important for some clinical evaluation contexts in which the length of the test battery is a concern.

Treatment The nature of the psychological treatment provided to older adults varies considerably according to individual differences in aspects of maturity, physical and psychosocial difficulties, cohort differences, clinical setting, and the extent to which others are involved in the patient’s life (Knight, 2004). These clinical considerations may correspond with professional and ethical concerns (Hays, 1999). No single psychotherapeutic modality has emerged as preferable with older adults (APA, 2004, Guideline 14). Treatments such as reminiscence therapy that are designed specifically for use with older adults may help some patients, whereas the use or adaptation of psychotherapeutic modalities that are commonly employed with younger populations may serve many older adult patients well. A most important consideration is that clinicians receive “education, training, supervised experience, consultation, study, or professional experience,” specifically in the application psychological principles and methods to older adult populations (APA, 2010, Ethical Standard 2.01, Boundaries of Competence). Treatment context often provides a readily apparent difference between younger and older recipients of psychological services. Although older adults receive psychological services in the same medical and mental health facilities as do younger adults, they may be encountered more commonly than younger adults in those settings because of the increased health problems and unique stressors associated with aging. In addition, because of decreased autonomy that results from the cognitive and physical decline associated with aging, older adults are commonly treated in day care programs, assisted living facilities, and skilled nursing facilities, and some older adults receive psychological care in their homes. Patients may also transition from one type of treatment setting to another according to changes in the level of care that they need. Clinicians have a responsibility to try to facilitate an appropriate transfer of psychological services when they are no longer able to continue 20

providing treatment. Although APA (2010) Ethical Standard 10.09 (Interruption of Therapy) specifically addresses changes in the psychologist’s employment or contractual obligations, the mandate to “make reasonable efforts to provide for orderly and appropriate resolution of responsibility for client/patient care” is a sound approach to take when prolonged changes in a patient’s level of care necessitates a change in residence and the treating clinician can no longer provide treatment. Although it is important in all clinical contexts to “terminate therapy when it becomes reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service” (APA, 2010, Ethical Standard 10.10, Terminating Therapy), no psychologists may be more in need of reminders of this requirement than those working in long-term care facilities. The line between providing a friendly presence and providing supportive psychotherapy to a nursing home resident can easily become blurred, and the potential benefit to the patient can be equally hazy. A patient may value having a caring person with the title “psychologist” stop by his room for a visit, but the therapeutic value of such “visits” may not warrant billing a third party. The potential value of such interactions becomes even more questionable when patients have significant memory problems. In a follow-up to a review completed in 1996, the Office of Evaluation and Inspections, one of several components of the Office of Inspector General (OIG), determined that 27% of psychiatric services provided in nursing homes are medically unnecessary, with Medicare payments for such services being inappropriate (OIG, U.S. Department of Health and Human Services, 2001). More than half of unnecessary services are provided to individuals whose cognitive limitations make them unable to benefit from the psychiatric intervention, and about half have an inappropriate frequency and/or duration. Additionally, many medically unnecessary services do not appear to stabilize or improve patients’ conditions. (OIG, U.S. Department of Health and Human Services, 2001, p. i)

Ethical Considerations in Treating Older Adults

The OIG further determined that psychological testing was the most problematic mental health service that was reviewed, with 39% of the psychological tests that were administered being medically unnecessary because they are too long, too frequent, or not needed by the patient. In fairness, it should be noted that some of the problems identified by the OIG dealt with failure of clinicians to document adequately, even though appropriate services were actually delivered, and failure of local carriers to properly define procedures for coding testing. Nonetheless, it has become increasingly important for clinicians working with older adults, and particularly those working in nursing facilities, to carefully document their evidence-based interventions with, or on behalf of, their patients. In most treatment contexts, collaboration with other professionals and family members is an important part of providing competent clinical services to older adults; however, preservation of the patient’s right to privacy and confidentiality must remain a priority (APA, 2010, Ethical Standard 4, Privacy and Confidentiality). In most clinical contexts, it is essential to clarify with all involved parties, including organizations, at the outset of the clinical service and periodically as needed, the nature and extent of the information that will be shared among those involved (APA, 2010, Ethical Standards 3.07, ThirdParty Requests for Services; 3.11, Psychological Services Delivered to or Through Organizations; 4.02, Discussing the Limits of Confidentiality). Such communication helps to prevent misunderstandings and a variety of strong emotional reactions when information about, or provided by, a patient is or is not shared by the clinician.

Serving Special Populations Ethical practice involves protection and promotion of the welfare of vulnerable patients, including those with physically frailty, cognitive or sensory deficits, and disabilities, as well as persons from diverse backgrounds (APA, 2010, General Principle E, Respect for People’s Rights and Dignity). Sensitivity to the relevance and importance of such factors and their interaction with cohort differences reduces the potential for inappropriate and potentially harmful clinical conclusions and care (APA, 2004, Guideline 5).

Persons With Cognitive Deficits Many psychologists who provide clinical services to older adults encounter patients who have possible or clearly evident cognitive deficits. Such deficits may be the focus of an evaluation or treatment or may need to be addressed as part of the provision of effective psychological treatment. Psychologists are frequently asked to assist other health care professionals or patients’ families with determinations about patients’ cognitive capacity to make decisions or to safely perform daily activities. The cognitive capacity of patients to manage finances, create or alter wills, establish advance directives, live independently, make medical decisions, and drive are examples of the types of issues about which psychologists may be asked to render opinions. Helping to clarify patients’ donative or testamentary capacity versus undue influence by family members can be an important role for psychologists when patients’ wills become a focus of attention. When addressing questions of cognitive capacity and making determinations about patients’ abilities to perform daily activities independently, psychologists are weighing the patients’ right to independence against the need to protect the interests and well-being of patients and others (APA, 2010, General Principle E, Respect for People’s Rights and Dignity). Attempting to determine what is in another person’s best interests, which may be contrary to the person’s expressed wishes, is a responsibility that requires examining the risks; the patient’s assets, limitations, and preferences; and one’s own values (Beauchamp & Childress, 2001; Bush, 2009). Psychologists are also frequently called upon to inform patients when limitations to their autonomy must be imposed. Although psychologists do not have the authority to restrict driving per se, the clinical opinions offered by psychologists often carry considerable weight with decision makers, and in some jurisdictions psychologists have a responsibility to report to the state department of motor vehicles when patients have disorders associated with compromised cognitive functioning. In many communities, driving is an obvious symbol of independence, and many older adults are reluctant to give it up. Clinicians must be sensitive to the psychological effects that lost driving privileges can have on 21

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patients and take great care to appreciate the perspective of each patient and explain the relevant issues in ways that promote understanding and acceptance by the patient (Knapp & VandeCreek, 2005).

their values. Facilities that receive funding from Medicare and Medicaid must inform patients upon admission of their right to express their wishes regarding medical decision making, including advance directives.

Persons facing end-of-life issues. The skills of a caring clinician may be particularly valuable to persons confronting their own mortality, and to their loved ones (APA, 2009). In addition to addressing issues of life review, loss, and mourning, facing the dying process can be a particularly trying experience. Decisions about life-sustaining care, such as artificial hydration and nutrition, often need to be made, reinforced, or reexamined, and psychologists can facilitate that process. Competent adult patients have the right to decide whether to have lifesustaining efforts initiated or terminated (Cruzan v. Director, 1990; Patient Self-Determination Act, 1991). When a patient’s decision-making capacity is in question, psychologists with appropriate training in cognitive assessment can help to clarify whether such capacity exists, and they are often able to help determine the patient’s wishes regarding treatment (APA Working Group on Assisted Suicide and Endof-Life Decisions, 2000). Farberman (1997) stated unequivocally, “A mental health assessment by a qualified mental health professional is imperative for any ill person requesting a hastened death” (p. 544). Although declining or discontinuing life-sustaining efforts will not prolong life and may actually hasten death, courts have determined that neither withholding nor withdrawing life-sustaining treatments reflects suicide or active euthanasia; rather, the underlying medical condition is simply being allowed to follow its natural course (Barber v. Superior Court, 1983; Brophy v. New England Sinai Hospital Inc., 1986; Reichman, Streim, & Loebel, 2004). Such legal decisions reflect the priority that the courts place on the individual’s right to self-determination. Clinicians appreciate both the shared value that Western society places on self-determination and the right of competent patients to make such decisions, even when such decisions conflict with

Abused older adults. Psychologists working with older adult patients will at times encounter situations in which their patients are abused, neglected, or exploited. The Older Americans Act of 19651 was established in part to protect older adults from such mistreatment; however, state laws vary with regard to the steps that psychologists must take when confronted with evidence of mistreatment of older adult patients. State laws govern protection and reporting requirements, and state agencies offer adult protective services. For example, in New York State, the Protective Services for Adults agency receives and investigates reports of abuse of adults over the age of 18. Health care providers in New York are governed by Kathy’s Law (New York State Division of Criminal Justice Services, 2003) and the Family Protection and Domestic Violence Intervention Act of 1994. Although psychologists in New York State are not legally mandated to report abuse of older adults, there remains an ethical obligation to protect others. The first line of the first APA (2010) ethical principle (General Principle A, Beneficence and Nonmaleficence) states, “Psychologists strive to benefit those with whom they work.” Although care must be taken to respect confidentiality rights, clinicians can often take a variety of steps to promote the welfare of abused, neglected, or exploited older adult patients that do not violate patient confidentiality, whether or not the clinician is mandated by law to report such maltreatment.

1

Health Promotion The application of psychological principles and methods to the improvement of the lives of older adults is no longer restricted to addressing disease, disorders, or disabilities. Rather, research shows that healthy older adults can benefit from a variety of

The Older Americans Act has been amended every few years since 1965, most recently with the Older Americans Act Amendments of 2006 (Pub. L. 109-365) and in 2007 with the Older Americans Reauthorization Technical Corrections Act (Pub. L. 110-19).

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psychological services and reduce their risk of developing dementia (e.g., Ball et al., 2002; Wilson et al., 2002). While philosophical discussions rage regarding whether “anti-aging” pursuits are morally questionable or evidence-based (Binstock, 2004; Haber, 2004; Post, 2004), consumers are showing considerable interest in pursuing healthier and perhaps longer lives. A primary consideration in health promotion services is the need to manage the client’s expectations (Bush, 2006). Some media outlets and marketing campaigns may paint a more promising picture of health promotion efforts than science supports, and other advertisers may prey upon older adults’ fears of getting a progressive dementia. Many potential consumers in the community accept promotional materials and advertisements solely with a sense of hope rather than reviewing the information with a balance of optimism and skepticism. It can be a responsibility of psychologists who serve older adults to provide a critical review of the “science” that reportedly supports certain health promotion products or services, including foreseeable risks and benefits, and to summarize that information for their clients. Providing one-sided support for health promotion products or services may be inconsistent with APA (2010) General Principle C (Integrity), which states, “Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology.” In addition, when promoting one’s own practice, “Psychologists do not make false, deceptive, or fraudulent statements” concerning their services or “the scientific or clinical basis for, or results or degree of success of, their services” (APA, 2010, Ethical Standard 5.01, Avoidance of False or Deceptive Statements, subsection b). Also, clinicians who delegate the publicity or marketing of their professional activities to others are still responsibility for the content of those materials (APA, 2010, Ethical Standard 5.02, Statements by Others). With an appreciation of the potential benefits and drawbacks of health promotion options and with appropriate attention to managing client expectations, there appears to be great potential for psychologists to serve older adults in this new and exciting aspect of professional service.

Social Considerations Psychologists have an ethical responsibility to the public at large, which Knapp and VandeCreek (2006) referred to as the principle of general beneficence. This responsibility may be manifest in an untold number of ways. Examples of areas in which psychologists can benefit society in a broad way include the following: (a) protecting future consumers of psychological evaluation services by safeguarding the integrity of psychological tests; (b) protecting older adults, through education and policy change, from biased direct marketing efforts of pharmaceutical companies and others with interests in profiting from challenges associated with aging; (c) advocating for the rights of older adults, particularly with regard to equitable access to mental health services, at the national policy level, as individuals and/or through professional organizations; (d) confronting misuse of state and federal resources (e.g., Medicaid funds) by patients and their families, professionals, or institutions; and (e) preventing or confronting abuse, neglect, or exploitation of older adults by professionals, institutions, or other aspects of society. Through public education and advocacy, psychologists can have widespread positive effects on the lives of older adults.

Record Keeping Accurate and complete record keeping facilitates quality clinical services and provides essential support for reimbursement and institutional or program accreditation. The ability to successfully negotiate an audit requires appropriate documentation of services. Psychologists must be aware of the recordkeeping guidelines of the profession, organizations for which they work, and payers, each of which may have somewhat different requirements. Although jurisdictional laws or regulations ultimately govern the record keeping of psychologists, the APA provides guidelines (APA, 2007) and ethical requirements (APA, 2010, Ethical Standard 6, Record Keeping and Fees) regarding record keeping and fees. Licensure laws in many states specify record keeping guidelines, as well. Medicare, as a primary payment source for older adults receiving psychological services, has unique documentation (i.e., reimbursement) requirements which can vary from region to region and from 23

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carrier to carrier (Sweet, Tovian, & Suchy, 2003). A primary requirement for psychological assessment services is documentation of medical necessity. Therefore, with some Medicare carriers, psychological assessment must be linked to a physician’s order, and bills submitted must include the physician’s name and unique physician identifier number. However, some procedures, such as cognitive rehabilitation (CPT code 97532), may not be covered for psychologists even with a physician’s order. In addition, the number of allowable units or hours for some procedures, such as neuropsychological testing (CPT code 96118), vary considerably by region and may not be allowed (i.e., not considered medically necessary) for some diagnoses. Some procedures, such as tests of personality or mood, must be billed under their psychological service code (CPT code 96101) even though they are performed as part of a neuropsychological (i.e., neurodiagnostic) evaluation; then, payment may be denied based on a lack of medical necessity for the psychological tests for neurodiagnostic evaluation purposes. Medicare’s “incident to” provision is another important issue of which psychologists, particularly those who provide training or use technicians, must be aware. According to some local carriers, the psychologist whose name is on the clinical documentation (e.g., report, progress note) must have provided the services which have been billed. “That is, the time and associated charges for assistants who are in the employ of the psychologist and who provide part of the services to a Medicare inpatient will not be reimbursed” (Sweet et al., 2003, p. 295). Some local carriers never reimburse services by psychology trainees, and billing for such services may represent fraud. Medicare’s incident to provision has had a substantial adverse effect on the nature and availability of neuropsychological services for older adults, and on the reimbursement of neuropsychologists (Sweet et al., 2003). It must be emphasized that these rules vary among Medicare carriers, so it is important for psychologists to understand the instructions and interpretations from the carriers that manage their Medicare reimbursement. When capacity evaluations arise in forensic contexts, billing Medicare or private insurance is not appropriate; rather, the attorney, 24

court, client, or family must pay for the services (American Bar Association & APA, 2008). POSITIVE ETHICS AND THE ETHICAL DECISION-MAKING PROCESS Ethical conduct and patient welfare are maximized when clinicians make a personal commitment to achieving and maintaining high standards of ethical practice and adopt a proactive approach to ethical decision making. Compared with the traditional remedial approach to ethics through which ethics codes represent minimum professional standards and tend to be used primarily for disciplinary purposes, positive ethics reflects a voluntary commitment to the pursuit of ethical ideals (Knapp & VandeCreek, 2006). A positive ethics approach is personal and proactive. Clinicians invested in the highest standards of ethical practice make a conscious decision about their professional identity and what kind of clinician they want to be; they determine that simply avoiding ethical misconduct is insufficient for their practice and their patients; and they strive for exemplary professional behavior at all times. The pursuit of ethical ideals is a process that is not without its challenges for the most well-meaning and determined clinicians, but the pursuit by itself promotes the welfare of patients and the profession better than an approach to practice that is simply content with avoiding charges of ethical misconduct. The development and maintenance of high standards of ethical practice are facilitated by adherence to the four A’s of ethical practice and decision making: Anticipate, Avoid, Address, and Aspire (see Bush, 2009). Psychologists safeguard and promote patient welfare by (a) attempting to anticipate and prepare for ethical issues and challenges commonly encountered in their specific practice contexts, (b) striving to avoid ethical misconduct, (c) taking steps to address ethical challenges when they are anticipated or encountered, and (d) maintaining a commitment to aspire to the highest standards of ethical practice. As with clinical decision making, ethical decision making tends to be most effective when it follows a structured, logical process and is evidence based (Bush, 2007). Use of an ethical decision-making

Ethical Considerations in Treating Older Adults

model (e.g., see Bush, 2009, and other chapters in the present text) provides clinicians with an outline of important points to consider and a method of examining relevant information to make sound decisions. Appendix 2.1 presents the ethical decision-making model presented by Bush (2009) in a worksheet format. The worksheet format is intended to facilitate the decision-making process by presenting the steps in question form that, when answered by the clinician, will help lead to good ethical decisions. Like clinical decision making, an essential step when addressing ethical issues is to consult relevant resources. Such resources include (a) jurisdictional laws; (b) professional ethics codes, particularly the APA Ethical Principles of Psychologists and Code of Conduct (2010); (c) the Association of State and Provincial Psychology Boards (ASPPB) Code of Conduct (ASPPB, 2005); (d) ethics committees, stated licensing boards, and liability insurance carriers; (e) position papers of professional organizations; (f) scholarly publications; (g) institutional guidelines and resources; and (h) informed and experienced colleagues. Consulting such resources reduces reliance on subjective impressions. The results of empirical studies of ethical issues can be particularly valuable. The body of work by McCaffrey and his colleagues on the effects of third-party presence during neuropsychological testing is a particularly nice example of how empirical research can inform ethical and professional decision making (McCaffrey, 2005). Consistent with positive ethics, clinicians are best served by maintaining familiarity with core resources throughout their careers, rather than attempting to gather and familiarize themselves with the resources while in the middle of a crisis. CONCLUSIONS Psychologists make valuable contributions to the lives of older adult patients and in return receive considerable personal and professional satisfaction. However, serving older adults patients is not without its ethical challenges. Awareness of the ethical challenges that are likely to be encountered, familiarity with the resources needed to understand and

address the challenges, use of an ethical decisionmaking model, and a personal commitment to high ethical standards are the foundation of ethical practice. With the growing population of older adults in the United States, the need for ethical psychological services for older adults has never been greater. There is a societal and individual responsibility to meet this need, and psychologists who are invested in ethical practices will embrace the responsibility and the satisfaction derived from promoting the welfare of older adults. APPENDIX 2.1: ETHICAL DECISIONMAKING WORKSHEET The Ethical Problem ■

What is the problem?

Context/Setting ■

How does the context/setting hinder resolution of the problem?

■

How does the context/setting facilitate resolution of the problem?

Assets and Limitations ■

What are the assets of those involved?

■

What are the limitations of those involved?

Obligations ■

To which persons/organizations are obligations owed?

■

What is the impact of the obligations on problem resolution?

Ethical and Legal Resources ■

What resources are available to provide clarification and guidance?

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■

■

■

■

What do the resources say related to the problem? Do the resources provide conflicting information?

American Academy of Clinical Neuropsychology (AACN). (2007). Practice guidelines for neuropsychological assessment and consultation. The Clinical Neuropsychologist, 21, 209–231. doi:10.1080/13825580601025932

If so, is there room for compromise or an intermediate position?

American Bar Association & American Psychological Association. (2008). Assessment of older adults with diminished capacity: A handbook for psychologists. Washington, DC: Author.

If a compromise cannot be identified, which resource(s) carries the most weight, and what is their position?

American Bar Association Commission on Law and Aging & American Psychological Association. (2005). Assessment of older adults with diminished capacity: A handbook for lawyers. Washington, DC: Author.

Personal Beliefs/Values ■

What are your personal feelings about the problem and how such problems should be resolved?

Possible Solutions ■

What are possible solutions to the problem?

Potential Consequences ■

List the potential positive and negative consequences for each of the possible solutions.

Course of Action ■

What is a best option?

Outcome ■

Was the outcome successful?

■

If not, modify the solution or select an alternative course of action until a good outcome is obtained.

■

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References

Document the process, outcome, and any indications for the future.

American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing. Washington, DC: American Educational Research Association. American Psychological Association. (2004). Guidelines for psychological practice with older adults. American Psychologist, 59, 236–260. doi:10.1037/0003-066X.59.4.236 American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004. doi:10.1037/0003-066X.62.9.993 American Psychological Association. (2009). End-of-life issues and care: The role of psychology in end-of-life decisions and quality of care issues. Retrieved from http://www.apa.org/pi/eol/role.html American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx American Psychological Association Presidential Task Force on the Assessment of Age-Consistent Memory Decline and Dementia. (1998). Guidelines for the evaluation of dementia and age-related cognitive decline. Washington, DC: Author. American Psychological Association Working Group on Assisted Suicide and End-of-Life Decisions. (2000). Report from the APA Working Group on Assisted Suicide and End-of-Life Decisions. Retrieved from http://www.apa.org/pi/aseol/introduction.html American Psychological Association Working Group on the Older Adult. (1998). What practitioners should know about working with older adults. Professional Psychology: Research and Practice, 29, 413–427. doi:10.1037/0735-7028.29.5.413 Ball, K., Berch, D. B., Helmers, K. F., Jobe, J. B., Leveck, M. D., Marsiske, M., . . . Advanced Cognitive Training for Independent and Vital Elderly Study

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Group. (2002). Effects of cognitive training interventions with older adults. JAMA, 288, 2271–2281. doi:10.1001/jama.288.18.2271

Connell, M., & Koocher, G. (2003). HIPAA and forensic practice. American Psychology Law Society News, 23, 16–19.

Barber v. Superior Court, 195 Cal Rptr 484, 147 Cal App 3d 1006 (1983).

Cruzan v. Director, Missouri Department of Health, 497 US 261, 279 (1990).

Beauchamp, T. L., & Childress, J. F. (2001). Principles of biomedical ethics (5th ed.). New York, NY: Oxford University Press.

Erikson, E. H. (1982). The life cycle completed: A review. New York, NY: Norton.

Behnke, S. H., Perlin, M. L., & Bernstein, M. (2003). The essentials of New York mental health law. New York, NY: Norton. Binstock, R. H. (2004). Anti-aging medicine and research: A realm of conflict and profound societal implications. The Journals of Gerontology. Series A, Biological Sciences and Medical Sciences, 59, B523–B533. Brophy v. New England Sinai Hospital Inc., 497 NE 2d 626 (1986). Browndyke, J. N. (2004). Ethical challenges with the use of information technology and telecommunications in neuropsychology, Part I. In S. S. Bush (Ed.), A casebook of ethical challenges in neuropsychology (pp. 179–189). New York, NY: Psychology Press. Bush, S. S. (2006). Neurocognitive enhancement: Ethical issues for an emerging subspecialty. Applied Neuropsychology, 13, 125–136. doi:10.1207/ s15324826an1302_7 Bush, S. S. (2007). Ethical decision making in clinical neuropsychology. New York, NY: Oxford University Press.

Erikson, E. H., Erikson, J. M., & Kivnick, H. Q. (1986). Vital involvement in old age. New York, NY: Norton. Family Protection and Domestic Violence Intervention Act of 1994, CRI 83-1-4 FAMPD 99-721 1997. Farberman, R. K. (1997). Terminal illness and hastened death requests: The important role of the mental health professional. Professional Psychology: Research and Practice, 28, 544–547. doi:10.1037/0735-7028. 28.6.544 Federal Interagency Forum on Aging-Related Statistics. (2006). Older Americans update 2006: Key indicators of well-being. Retrieved from http://www.agingstats.gov/ agingstatsdotnet/main_site/default.aspx Federal rules of evidence for United States courts and magistrates. (1987). St. Paul, MN: West. Fisher, C. B. (2003). Release of test data and the new APA ethics code: What psychologists need to know. National Psychologist, 12, 12–13. Gibson, W. T., & Pope, K. S. (1993). The ethics of counseling: A national survey of certified counselors. Journal of Counseling and Development, 71, 330–336.

Bush, S. S. (2009). Geriatric mental health ethics: A casebook. New York, NY: Springer.

Haber, C. (2004). Life extension and history: The continual search for the fountain of youth. The Journals of Gerontology. Series A, Biological Sciences and Medical Sciences, 59, B515–B522.

Bush, S. S., & Martin, T. A. (2005). Ethical issues in geriatric neuropsychology. In S. S. Bush & T. A. Martin (Eds.), Geriatric neuropsychology: Practice essentials (pp. 507–536). New York, NY: Psychology Press.

Hays, J. R. (1999). Ethics of treatment in geropsychology: Status and challenges. In M. Duffy (Ed.), Handbook of counseling and psychotherapy with older adults (pp. 662–676). New York, NY: Wiley.

Bush, S. S., Ruff, R. M., Tröster, A. I., Barth, J. T., Koffler, S. P., Pliskin, N. H., . . . Silver, C. H. (2005). Symptom validity assessment: Practice issues and medical necessity. Official position of the National Academy of Neuropsychology. Archives of Clinical Neuropsychology, 20, 419–426. doi:10.1016/j. acn.2005.02.002 Caplan, B., & Shechter, J. (2005). Test accommodations in geriatric neuropsychology. In S. S. Bush & T. A. Martin (Eds.), Geriatric neuropsychology: Practice essentials (pp. 97–114). New York, NY: Psychology Press. Clay, R. A. (2006, April). Geropsychology grants in peril: Seven geropsychology training efforts have lost funding they receive through the Federal Graduate Psychology Education (GPE) Program. Monitor on Psychology, 37, 46.

He, W., Sengupta, M., Velkoff, V. A., & DeBarros, K. A. (2005). 65+ in the United States: 2005. Current population reports, P23–209. Washington, DC: U.S. Government Printing Office. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-91 (1996). Heaton, R. K., Miller, S. W., Taylor, M. J., & Grant, I. (2004). Norms for an expanded Halstead-Reitan battery: Demographically adjusted neuropsychological norms for African American and Caucasian adults. Lutz, FL: Psychological Assessment Resources. Knapp, S., & VandeCreek, L. (2005). Ethical and patient management issues with older, impaired drivers. Professional Psychology: Research and Practice, 36, 197–202. doi:10.1037/0735-7028.36.2.197 Knapp, S., & VandeCreek, L. (2006). Practical ethics for psychologists: A positive approach. Washington, 27

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DC: American Psychological Association. doi:10.1037/11331-000 Knight, B. G. (2004). Psychotherapy with older adults (3rd ed.). Thousand Oaks, CA: Sage. Knight, B. G., Karel, M. J., Hinrichsen, G. A., Qualls, S. H., & Duffy, M. (2009). Pikes Peak model for training in professional geropsychology. American Psychologist, 64, 205–214. doi:10.1037/a0015059 Lichtenberg, P. A., Smith, M., Frazer, D., Molinari, V., Rosowsky, E., Crose, R., . . . Gallagher-Thompson, D. (1998). Standards for psychological services in long-term care facilities. The Gerontologist, 38, 122–127. Lucas, J. A., Ivnik, R. J., Willis, F. B., Ferman, T. J., Smith, G. E., Parfitt, F. C., . . . Graff-Radford, N. R. (2005). Mayo’s Older African Americans Normative Studies: Normative data for commonly used clinical neuropsychological measures. The Clinical Neuropsychologist, 19, 162–183. doi:10.1080/13854040590945265 McCaffrey, R. J. (Ed.). (2005). Third party observers [Special issue]. Journal of Forensic Neuropsychology, 4(2). McSweeny, A. J. (2004). Ethical challenges in geriatric neuropsychology, part I. In S. Bush (Ed.), A casebook of ethical challenges in neuropsychology (pp. 147–152). New York, NY: Psychology Press. Morgan, J. (2002). Ethical issues in the practice of geriatric neuropsychology. In S. S. Bush & M. L. Drexler (Eds.), Ethical issues in clinical neuropsychology (pp. 87–101). Lisse, the Netherlands: Swets & Zeitlinger. Myers, J. E. (1999). Adjusting to role loss and leisure in later life. In M. Duffy (Ed.), Handbook of counseling and psychotherapy with older adults (pp. 41–56). New York, NY: Wiley. New York State Division of Criminal Justice Services. (2003). Laws of New York, 1988: Chapter 381: Kathy’s Law. Retrieved from http://criminaljustice.state. ny.us/legalservices/ch381_kathys_law.htm Office of Inspector General, U.S. Department of Health and Human Services. (2001). Medicare payments for psychiatric services in nursing homes: A follow up. Retrieved from http://www.oig.hhs.gov/oei/reports/ oei-02–99-00140.pdf Older Americans Act of 1965 as Amended in 2006, Pub. L. No. 109-365 (2006).

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Patient Self-Determination Act, Pub. L. No. 101-508 (1991). Pope, K. S., & Vetter, V. A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47, 397–411. doi:10.1037/0003-066X.47.3.397 Post, S. G. (2004). Establishing an appropriate ethical framework: The moral conversation around the goal of prolongevity. The Journals of Gerontology. Series A, Biological Sciences and Medical Sciences, 59, B534–B539. Rai, G. S. (Ed.). (1999). Medical ethics and the elderly: Practical guide. London, England: Informa Healthcare. Reichman, W. E., Streim, J. E., & Loebel, J. P. (2004). Legal, ethical, and policy issues. In D. G. Blazer, D. C. Steffens, & E. W. Busse (Eds.), Textbook of geriatric psychiatry (3rd ed., pp. 515–528). Washington, DC: American Psychiatric Publishing. Rosen, A. L. (2005). Testimony to the Policy Committee of the White House Conference on Aging. The shortage of an adequately trained geriatric mental health workforce. Retrieved from http://www.whcoa. gov/about/policy/meetings/Jan_24/Rosen%20 WHCOA%20testimony.pdf Schatz, P. (2004). Ethical challenges with the use of information technology and telecommunications in neuropsychology, Part II. In S. S. Bush (Ed.), A casebook of ethical challenges in neuropsychology (pp. 190–197). New York, NY: Psychology Press. Sweet, J. J., Tovian, S. M., & Suchy, Y. (2003). Psychological assessment in medical settings. In J. R. Graham & J. A. Naglieri (Volume Eds.) and I. B. Weiner (Editor-in-Chief), Handbook of psychology (Vol. 10, pp. 291–316). Hoboken, NJ: Wiley. Waters, E. B., & Goodman, J. (1990). Empowering older adults: Practical strategies for counselors. San Francisco, CA: Jossey-Bass. Wicclair, M. R. (1993). Ethics and the elderly. New York, NY: Oxford University Press. Wilson, R. S., Mendes de Leon, C. F., Barnes, L. L., Schneider, J. A., Bienias, J. L., Evans, D. A., & Bennett, D. A. (2002). Participation in cognitively stimulating activities and risk of incident Alzheimer disease. JAMA, 287, 742–748. doi:10.1001/ jama.287.6.742

CHAPTER 3

ETHICAL ISSUES IN MULTIPERSON THERAPY Linda K. Knauss and Jeffrey W. Knauss

Psychotherapy is most commonly conceptualized as one therapist and one client. However, the ethical challenges of multiperson therapies, such as couple, family, and group treatments, differ from those found in individual therapy. The multiplicity of relationships with the therapist and with each other is just one reason for this complexity. Often, the very processes that are the most powerful to create change in therapy with groups or families are also the most ethically risky (Lakin, 1994). The most recent revision of the Ethical Principles and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) has two standards specific to multiperson therapy, Standard 10.02, Therapy Involving Couples and Families, and Standard 10.03, Group Therapy. Standard 10.02 requires psychologists to identify which member(s) of a couple or family are the identified client(s), as well as clarify the relationship and role the psychologist will have with each person. This standard also requires psychologists to modify or withdraw from potentially conflicting roles. Standard 10.03 states: “When psychologists provide services to several persons in a group setting, they describe at the outset the roles and responsibilities of all parties and the limits of confidentiality” (APA, 2010, p. 13). Thus, both group and family therapy place the therapist and the client in a unique role with a special set of responsibilities. However, the Ethics Code does not specifically address several areas that are especially problematic in family and group therapy. As a consequence, psychologists need to take the general standards of the

Ethics Code and interpret them in light of overarching general principles to determine how to optimize ethical behavior in multiperson therapy. The emphasis on overarching ethical principals compels psychologists to focus on doing the very best they can to promote patient welfare and respect decision making. This chapter will focus on both the most common as well as the more subtle ethical problems in multiperson therapy including the following: competence, informed consent, collaterals, confidentiality, domestic abuse, boundaries, combined individual and group therapy, record keeping, billing, and ethical issues with high-conflict families. COMPETENCE Competence is an important principle of ethically responsible practice, and competence in general is covered in detail in Volume 1, Chapter 6, this handbook. However, many practitioners tend to add group and/ or family therapy to other modalities for which they have been more adequately trained (Lakin, 1994). This lack of training can lead to numerous problems related to the unique aspects of group therapy or using specific techniques in family therapy.

Family Therapy Various theories and perspectives have developed specific to family therapy, such as systems theory, which practitioners should have mastered. In addition, certain techniques in family therapy require specialized training to use competently, such as family sculpting, communications training, or paradoxical

DOI: 10.1037/13272-003 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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interventions. Both family sculpting and paradoxical techniques have been considered manipulative (Lakin, 1994), and paradoxical intervention is often regarded as controversial (Patten, Barnett, & Houlihan, 1991). One type of paradoxical intervention recommends that a family member persist in his or her problematic behavior because once the behavior is accepted as routine or therapeutic, it will no longer attract attention and will decrease in frequency. For example, if a father disapproves of his son’s friends, the father may be encouraged to insist that the son associate with these friends as frequently as possible (Patten et al., 1991). The ethical concern is that this recommendation on the part of the therapist is deceptive and may have unintended consequences, such as exacerbating negative behavior or causing a family to misunderstand the therapist’s intention and terminate treatment prematurely. Although not all paradoxical techniques are deceptive, when deceptive paradoxical techniques are used, the therapist should have sufficient confidence in them to believe that the value of the technique greatly overshadows the harm that comes from being deceptive with the family.

Group Therapy Some group therapies are for specific conditions or problems, such as eating disorders or substance abuse, and psychologists need to be competent in those areas as well as competent in the unique features of group therapy. One of those unique competencies is developing group cohesion, group consensus, and the amount of emotional expressiveness of group members. A certain amount of group cohesion is necessary for therapeutic progress, but too much can be counterproductive if it suppresses diverse opinions or leads to victimization.

Coercion and Confrontation Competent group leaders also know how to manage coercion and confrontation. Group pressure can be therapeutic by encouraging a member to discuss a painful experience or an important decision. However, group members as well as leaders sometimes pressure members to disclose more than they may choose independently to say. In some situations, group members feel pressure to do what everyone else is doing, even when the group leaders give 30

members the option of not participating in a particular activity or discussion. Group leaders must make it genuinely acceptable for members to choose participation (G. Corey, Corey, Callanan, & Russell, 1982) and assist group members in determining an appropriate amount of self-disclosure (Schoener & Luepker, 1996). Some group leaders inappropriately confront group members whom they feel are resistant. They may get a sense of power by making the person feel defensive or applying pressure on them to open up. Although confrontation by the group leader can reduce resistance or break through defenses, it needs to be used cautiously. Group leaders also have an obligation to respond to peer pressure on a group member. From a clinical perspective, the leader can focus on the members applying the pressure and explore their reasons for a need to coerce and pressure others. This acknowledges the behavior of those who are exerting the pressure while emphasizing the need to respect the wishes and autonomy of the member or members who are being pressured. Caution is also necessary with techniques such as hitting pillows, pushing, or breaking in or out of a circle. Although designed to be therapeutic, they can also cause harm. If a client has been fearful of expressing emotion, this fear could be reinforced if the emotion gets out of control when it is expressed and is harmful to others (G. Corey et al., 1982). Group leaders should have the appropriate experience and training when using these techniques. They should clearly explain any exercises to group members, ask members whether they want to participate, and take safety precautions to minimize the chances of negative outcomes. INFORMED CONSENT Informed consent in general is reviewed in Volume 1, Chapter 12, this handbook. However, obtaining informed consent in multiperson therapies involves more complexity than in individual therapy. Informed consent regarding the format and structure of multiperson therapies will help clients to make an informed decision about whether to participate in family or group therapy.

Ethical Issues in Multiperson Therapy

Family Therapy Family therapy raises a number of questions with regard to informed consent such as who gives consent, who is the identified patient, and how capable are the participants of understanding the process and potential outcomes? In family therapy, the procedures for informed consent should be conducted with all adults who will participate in therapy. In addition, it is also important for psychologists to seek the cooperation of minors who will be participating in therapy through the process of informed assent. If some family members join the process at a later time, then the informed consent process should be repeated for them as well (Margolin, 1982). This enforces the therapeutic message that the psychologist will exclude no one from knowledge about the process and rules of therapy. As part of the informed consent process, psychologists should inform clients of both the risks and benefits of treatment. However, the risks and benefits of family or couple therapy differ from those in individual therapy because the therapist as well as each family member has less control over the outcome of family therapy than of individual therapy. Also, couple or family therapy may lead to an outcome viewed as undesirable by one or another of the participants, with divorce being one example (Margolin, 1982). Information about alternative forms of treatment is often part of informed consent. Some people are torn between pursuing individual versus family or couple therapy for relationship issues. However, according to Gurman and Kniskern (1978), therapy that involves both partners is significantly more effective than individual therapy for relationship issues. It is not unusual for some family members to be more willing to participate in therapy than others. Margolin (1982) suggested that therapists and family members can encourage a family member to attend at least one session to discover what therapy may offer. Some family therapists are only willing to see families if all members are present. This leads to the potential for coercion rather than voluntary participation in treatment, or to the denial of services because one person will not participate. Therapists who prefer working with the entire family have an obligation to inform families that not all family therapists share this preference and should refer these

families to a therapist who does not have this requirement, so that reluctant family members do not feel that they must participate for the family to get treatment. One challenge to informed consent is the use of paradoxical intervention. As was mentioned earlier, some paradoxical interventions involve manipulation, which limits truly informed consent. For therapists who use this technique, it is not always possible to give clients an accurate picture of what will take place during therapy. Informed consent should not be seen as a one-time event, but as a process in which old information may need to be repeated or new information may need to be given at various times during treatment. This is especially important if the focus shifts from couple to individual therapy. The couple would need to know whether treatment would return to couple therapy and would need to understand the limits of confidentiality (Woody & Woody, 2001). Issues related to termination should also be discussed as part of informed consent, including whether one member can leave treatment without the need for the entire family to terminate or transfer to another therapist. Psychologists should discuss two very important issues unique to family therapy as part of the informed consent process. The first issue is whether the therapist plans or is willing to see family members individually, and the second issue is whether the therapist considers information learned from one family member when the others are not present (including information obtained by telephone or email) to be confidential. Some therapists never see family members or members of a couple individually; others always do an initial intake assessment with family members or members of a couple individually but do not see them individually after that. A third model is to see family members or partners individually whenever the therapist or clients think it would be beneficial. All of these options are ethical as long as psychologists help clients form realistic expectations at the beginning of treatment. Thus, these issues should be part of informed consent. Several ethical dilemmas that arise in family therapy can be avoided by addressing them as part of informed consent. For example, if a psychologist is treating a woman and she wants to bring in her 31

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significant other for conjoint sessions, consistent with Standard 10.02a of the Ethics Code, the psychologist needs to clarify whether the woman is the psychologist’s client and the significant other is there as a collateral contact, or whether the focus of treatment has become couples therapy and both parties are the psychologist’s clients. This is especially important if the relationship between the couple deteriorates and both members of the couple wish to have individual sessions with the psychologist. If the significant other is there as a collateral contact, the psychologist’s treatment obligation would be to the woman, and the psychologist would need to refer the significant other to a therapist of his/her own (Bennett et al., 2006). However, if the psychologist is treating a couple for relationship issues and the relationship deteriorates, one member may discontinue therapy and the other may request individual sessions. Again, consistent with Standard 10.02a of the Ethics Code, the psychologist should have identified who was the client at the outset of treatment. In this situation, both parties may be clients, and the relationship may be the focus of treatment. If one person then discontinues treatment, the psychologist would need to terminate that relationship and consider continuing treatment with the other member of the couple. Legally and ethically, the psychologist could continue therapy with the other person. However, there may be clinical reasons to make an alternate choice. If there is a possibility that the couple’s therapy would resume, then seeing one member of the couple individually could create a bias or the perception of bias (Bennett et al., 2006). In that case, the couple may need to see a different therapist for couple’s therapy in the future. A third possibility is that while treating a couple for relationship issues a psychologist provides individual sessions to each of them. This is most problematic if either individual shares information with the psychologist that he or she does not want shared with the other member of the couple, or if one member of the couple wants to end the relationship and the other person is using the individual therapy sessions to help preserve the relationship. Before seeing these clients individually, it would be important to clarify the reason for seeing them individually and 32

their mutual goal for treatment. Thus, if either person’s goal changed, the individual sessions might end. Psychologists should also clarify whether information shared in individual sessions would be confidential from the other member of the couple. In all of these situations, thorough informed consent reduces the potential for misunderstandings, bad feelings, or a sense of betrayal. In addition, the conditions of treatment may need to be reviewed periodically, and good documentation of the informed consent procedures is indicated as well (Bennett et al., 2006).

Collaterals Often, other people involved in the treatment of a client, such as family members, significant others, or close friends, give extremely valuable information or otherwise facilitate therapy. Sometimes, other people attend therapy sessions without the identified client, such as family members who may meet with the therapist to provide information about a hospitalized client. In these situations, the person or persons attending the treatment sessions is not a client of the psychologist, but they are collateral to someone else’s treatment. Several important issues need to be clarified and agreed upon before working with collaterals. First, according to Younggren (2009), “The collateral is not a patient and, consequently is not the subject of treatment. Therefore, the psychologist’s primary duty is to the patient and not the collateral” (p. 19). As a consequence, collaterals do not have a separate record, and information from them becomes part of the identified client’s chart. The collateral does not have access to the client’s chart without the consent of the client who controls the disposition of their records. Psychologists do not have the same legal obligation to collaterals as they do to clients; nonetheless, it is only courteous and prudent to ensure that collaterals understand how the information they provide might be used. For example, collateral contacts should be told that the psychologist may be required to report information obtained from the collateral, such as mandated reporting of child abuse or dangerousness to self or others as

Ethical Issues in Multiperson Therapy

required by state law (Younggren, 2009). Finally, payment arrangements should be agreed on in advance. Collaterals are not responsible for paying for their visit unless they agreed to be financially responsible for the client (Younggren, 2009). Psychologists should document a discussion of these conditions in the client’s record or use a signed agreement that outlines these conditions. Because collaterals have limited rights within the treatment context, it is important to determine who is a client and who is a collateral. The critical issue is that the collateral is not the subject of treatment, although collaterals may derive some secondary benefit. Problems occur when individuals in the room consider themselves clients whereas the therapist considers them collaterals. This is most likely to be a problem when working with high-conflict families and the release of records becomes an issue. Thus, if someone is going to be involved in treatment on a long-term basis, or if she or he becomes the focus of treatment, it may be more appropriate to reconceptualize the case as couple or family therapy with a new informed consent agreement.

Group Therapy Most people have a general sense of the format and structure of individual therapy but know very little about group therapy. It is through the process of informed consent that prospective clients can learn enough about group therapy to decide whether to participate (Glass, 1998). This is especially important given the many methods and types of group therapy that are available. Similar to family therapy, it may be difficult to explain to potential clients exactly what to expect, such as the idea that group members may help each other. The following are some issues that are unique to group therapy that should be part of the informed consent process: entrance criteria and procedures, length, frequency and duration of group sessions, criteria for termination, fees, goals, and methods and procedures of treatment. Other issues include information on the background of the leaders and their approaches for working in groups. Written materials can help reinforce what the prospective client is told in person (Glass, 1998).

Group members should be aware of the rationale for their participation in group therapy, although this may be the role of the referral source, not necessarily the group leader. However, psychologists should assess prospective clients to determine how well they might fit with other group members and the purpose and methods of the group. A thorough discussion of informed consent includes both the benefits and risks of participating in treatment. Some of the risks inherent in group therapy include the following: scapegoating, group pressure, breaches of confidentiality, inappropriate reassurance, and hostile confrontation (M. S. Corey & Corey, 1992). Even with excellent training and good intentions, group leaders cannot prevent all bad experiences, so members must be willing to deal with the potential challenges of group participation. Thus, clients should be provided with the most realistic picture possible of what the group experience will be like. Sometimes, however, too much information is more confusing than helpful. Even if group process could be accurately explained, cognitive understanding does not always match the actual experience of group participation. As in other modalities of treatment, some group leaders focus on the positive benefits of group participation and are reluctant to discuss risks that might prevent clients from participating who could benefit from group therapy (Glass, 1998). When discussing treatment risks, it is important to be aware of the relative probability of such risks and highlight the most likely, rather than possible but unlikely, risks. Informed consent regarding termination is crucial to the group therapy process. Group leaders are responsible for informing members in advance that their participation in group is voluntary, and they have the right to leave the group at anytime. This is usually done during a pregroup individual screening interview or during the first group session. In return, group members have a responsibility to the leaders and the members to explain why they want to leave (G. Corey et al., 1982). In a survey of group therapists, Mangione, Forti, and Iacuzzi (2007) found that more than half of the respondents endorsed discussing their expectations about endings in pregroup screenings, and only 13% did not talk about termination at all. This seems to 33

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reflect an understating of the importance of including termination as part of the informed consent process. The majority of therapists surveyed indicated that it was best when the therapist, client, and group jointly decided when and how to end treatment, although the survey also suggested that it does not always happen this way. When group members decide to withdraw, it is desirable for them to present their reasons for leaving to the group as a whole. It would be unfortunate for a member to leave a group because of a misunderstanding about certain feedback they received. In addition, it can be unfair to other group members if they assume that someone left the group because of something they said or did. It is important not to pressure group members to remain in the group, while encouraging them to explore their reasons for leaving. Whenever a member leaves a group, it has serious impact on the group, especially if they leave without an explanation (G. Corey et al., 1982). CONFIDENTIALITY Issues related to confidentiality in general are discussed in Volume 1, Chapter 13, this handbook. However, in any form of multiperson therapy, confidentiality issues must be handled differently than in traditional dyadic therapy (Lakin, 1994), although it is still an integral part of the informed consent process. Knowing the limits of confidentiality lets clients determine what kind of information and how much of it to disclose. A good informed consent process also allows clients to understand the consequence of disclosing certain kinds of information before it is too late (Lasky & Riva, 2006).

Family Therapy In couple or family therapy, the most important issue regarding confidentiality is how the therapist will handle “secrets.” There are two divergent positions that psychologists may take, and both are equally legally and ethically defensible. The choices differ with regard to clinical implications. One position is that the therapist may treat each family member as if that person is an individual client. Thus, “information obtained during a private session, during a telephone call, or from written 34

material is not divulged to other family members” (Margolin, 1982, p. 791). Some therapists arrange individual sessions for members of a couple or family to encourage them to share “secrets” so that the therapist has a further understanding of the case. The therapist may then encourage the individual client to reveal their secret in the family session. However, this does not always happen, and in those instances, the therapist must maintain the client’s confidentiality. This can create a dilemma for the therapist because the information may bias the way the therapist views the family and the interventions (Hines & Hare-Mustin, 1978). Keeping secrets in couple or family therapy may also risk harm to one client in favor of another, and therapists have an equal obligation to all clients. The opposite position is to keep no secrets in therapy from other family members. Of course, confidentiality would also be maintained toward others outside of the therapy sessions. Therapists who use this practice model discourage sharing information with the therapist outside of the joint therapy session and do not usually conduct individual sessions. However, having a no-secrets policy does not mean one cannot have individual sessions; it just means that the therapist is free to reveal the information to other family members. In this model, the relationship or the family is the client rather than specific individuals (Gladding, 2007). Unfortunately, regardless of the therapist’s model, clients who are determined to share information with the therapist outside of joint therapy sessions will find a way to do so (Margolin, 1982). When this occurs, it is important for therapists to remind the client that the information is not confidential from the other member(s) of couple or family therapy. These two positions represent opposite ends of a continuum, with other options in between. For example, therapists who do not promise to maintain confidences may choose not to divulge certain information, such as an affair one member of a couple terminated years ago. Thus, the policy of not preserving the confidences of individual family members does not mean that the therapist will not conceal anything. “It is the therapist’s discretion, not his or her responsibility, to divulge confidential information” (Margolin, 1982, p. 791). However,

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keeping secrets can have negative consequences because it risks harm to one client in favor of another. Regardless of what position a psychologist takes with regard to secrets, he or she must thoroughly explain the policy during informed consent. This is especially important in family therapy because the limits of confidentiality with regard to other family members are left to the therapist’s discretion. This allows clients to decide what information to share and reduces the likelihood that family members will try to obtain information about each other from the therapist. Changing the format of therapy from individual to couple, marital, or family therapy complicates issues of confidentiality. Is the information obtained during individual therapy confidential from family members? If this issue is not clarified ahead of time, then the therapist must request the individual client’s permission to share this information when relevant in couple or family sessions. However, if the client does not grant permission, the information must remain confidential even for therapists who do not like to keep secrets from other family members. This also presents a challenge to the memory of both the therapist, if permission is not granted, and the client, if permission is granted, to remember what was said under the previously assumed condition of confidentiality. In general, maintaining one person’s confidence in couple or family therapy may limit the effectiveness of the therapist. From a clinical perspective, the therapist may also become unwittingly triangulated in a family conflict. The therapist may be in a position of concealing information that is crucial to one partner’s decision to remain in the relationship. Even if the therapist believes that dealing openly with the confidential information would have longterm benefit, this is not possible without the individual client’s consent. When therapists have not promised confidentiality, they must carefully consider the therapeutic implications of their decisions about sharing information. In terms of clinical practices, it is safest not to see members of a couple or family individually unless they have agreed that the therapist has the discretion of sharing relevant information with other family members. This reinforces a systems perspective

that the family is an interrelated unit and what affects one member has an impact on the entire family (Gladding, 2007). If therapists fail to clarify their policy on confidentiality, then different family members may be functioning under different assumptions, with one person assuming confidentiality would be maintained and the other person assuming there would be no individual secrets. Because no one knows the limits of confidentiality, no one has made a decision to accept those limits, and any action taken by the therapist is potentially unsatisfactory to at least one person (Margolin, 1982).

Group Therapy Some aspects of confidentiality are unique to group therapy. As in individual therapy, confidentiality is central to effective group work. However, in a therapy group, confidentiality cannotbe guaranteed because information disclosed in the group is heard by many persons. Although psychologists are bound to confidentiality by professional standards, other group members are only bound to confidentiality to the extent that they uphold their promises to protect confidentiality as a condition of participating in the group. Thus, group leaders cannot unconditionally promise group members confidentiality, although they can take steps to increase the probability that members will respect each other’s confidences (Lakin, 1988), clearly define and communicate to group members what confidentiality means, and explain why it is important (Association for Specialists in Group Work, 1989). However, confidentiality is more likely to be valued if it becomes part of the group process. It is helpful to openly discuss confidentiality so it can be enforced by the group as a whole. Clinical examples help group members understand how confidentiality can be broken unintentionally (G. Corey, Williams, & Moliner, 1995). Like informed consent, it is important to remind group members frequently about the importance of confidentiality, not just at the beginning of the group (Glass, 1998). The challenges of maintaining confidentiality increase when conducting groups in correctional institutions, inpatient facilities, agencies, and schools, where members know each other from 35

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outside the group and may have the same acquaintances. If group members learn that other group members are gossiping about them, they will be less likely to bring significant issues to the group (M. S. Corey & Corey, 1992). Group members who met criteria as “group casualties” because they experienced psychological distress as a direct result of involvement in group therapy identified breaches of confidentiality as one cause of their psychological distress. This was the only group member behavior that significantly differentiated groups with casualties from groups without casualties (Smokowski, Rose, Todar, & Reardon, 1999). In general, studies show that most people expect complete confidentiality in groups (Laskey & Riva, 2006), and group members were unaware that confidentiality among group members could not be guaranteed (Meyer & Smith, 1977). People are more willing to disclose personal information when they feel the information will be protected by confidentiality (Meyer & Smith, 1977; Nowell & Spruill, 1993; Willage & Meyer, 1978). Studies suggest that maintaining confidentiality among group members can be difficult. For example, Davis (1980) found that even when group members were provided with accurate information about confidentiality, almost half of the members still believed they could talk to a friend or family member about what was said in group. Moreover, according to Laskey and Riva (2006), “what group leaders say about confidentiality is not necessarily what group members hear” (p. 460). Also, Willage and Meyer (1978) found that more than 80% of group therapists reported discussing issues of confidentiality, whereas only 38% of group members in those groups reported hearing that discussion. In discussing confidentiality with group members, group leaders should emphasize the potential for harm when group member violate confidentiality. These violations can harm the specific member whose information was disclosed, other group members, and the group as a whole (Laskey & Riva, 2006). The most common reactions to such disclosures are anger toward the person responsible for the violation, anger toward the group leader, and decreased self-disclosure in group. 36

Privilege Privileged communications, or the legal right of clients to keep information out of court proceedings, are discussed in more detail in Volume 1, Chapter 13, this handbook. However, its application to family or group therapy varies depending on the state law or local interpretations of state law. The traditional view is that privilege is automatically waived when discussions are held in front of casual third persons (making them public as opposed to private discussions) and that the privilege laws, which run counter to the general trend to admit all evidence into court, must be interpreted narrowly. As a consequence, the application of privilege in family or group therapy could be inconsistent and depends on the specific wording of the state’s statute or judicial interpretations of that statute. Psychologists are urged to be familiar with their state laws in this area.

Domestic Abuse The issues concerning the duty to warn or protect in the treatment of dangerous patients are covered in more detail in Volume 1, Chapter 14, this handbook. We discuss here one aspect of dangerousness, domestic violence, which is commonly found in couples or family therapy. Domestic violence refers to aggression in an intimate relationship, including the following: physical violence, emotional and sexual abuse, and economic controls (Gladding, 2007). The rate of some type of physical aggression in marriages in the United States has been more than 30% (Crespi & Howe, 2000). When treating couples and families, it is extremely important to assess for instances of domestic violence to ensure the safety of the abused partner and to hold perpetrators accountable (Jory, Anderson, & Green, 1997). Although domestic violence is common, according to O’Leary, Vivian, and Malone (1992), only 6% of women seeking counseling reported domestic abuse, whereas 53% reported physical violence in their marital relationship when the question of abuse was inquired about directly via a standardized questionnaire. Embarrassment and retribution by their spouse are likely reasons for not reporting an abusive relationship (Stith, McCollum, Rosen, Locke, & Goldberg, 2005). Although assessing abuse is a difficult task, conducting the assessment in a way that minimizes

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blame and focuses on family dynamics and relationships is the best way to gain accurate information. The information that is gathered will provide the therapist with an understanding of what changes may be amenable to intervention and what interventions may be most appropriate (Gladding, 2005). Confidentiality is the most important ethical issue when treating couples and families in which there is domestic abuse or violence. For victims of abuse, confidentiality fosters a trusting relationship that allows them to talk about the abusive relationship and develop plans to ensure their safety. However, when used inappropriately, emphasizing confidentiality can work in favor of an abusive individual. Woody and Woody (2001) emphasized that “a therapist who agrees that all individual disclosures will be kept confidential may find herself or himself in the unconscionable position of maintaining secrets that support intimate violence or abuse” (p. 139). It is especially important for psychologists who treat couples and families where there is domestic violence or abuse to clarify the limits of confidentiality, including danger to others at the beginning of therapy, both verbally and in writing as part of the informed consent process. Therapists should also clarify whether their policy is to keep information from individual sessions confidential from other family members if they indicate that they might occasionally see one or more of the family members individually. If this is not discussed in advance, clients are likely to assume confidentiality is an option. Domestic abuse situations highlight the dangers of promising complete confidentiality of information learned from individuals when providing couple or family therapy. Even when therapists do protect the confidentiality of information learned from individuals in couple or family therapy, they may need to break confidentiality if there is a danger to others. Domestic abuse situations also emphasize the importance of the informed consent process and the fact that informed consent does not just occur at the beginning of therapy. Even if the limits of confidentiality are not discussed at the beginning of therapy, if a therapist becomes aware of information that would lead him or her to believe that a client was in danger or was presenting a danger to someone else,

he or she should inform the client of the limits of confidentiality at that time. BOUNDARIES Therapeutic boundaries are the rules of the professional relationship and are covered in more detail in Volume 1, Chapter 9, this handbook. Family or couples therapy does not appear to create unique issues with regard to boundaries or multiple relationships. Ethical considerations and decision making about boundaries and multiple relationships in couples or family therapy are similar to individual therapy.

Group Therapy Group therapy includes several situations in which multiple relationships or boundaries could present unique issues. For example, boundary issues occur when group members form subgroups, such as a sexual or romantic relationship between group members, or several group members meeting for coffee. The group members involved may give their individual relationships a higher priority than their relationship to the group (Yalom, 1975). If discovered, either by the group leader or a group member, it is crucial that the group discuss the issue as well as their feelings, which may include jealousy or betrayal, with the goal of reaching a constructive solution. If the group leader learns about an outside relationship and is reluctant to introduce the information into a group session, he or she can hardly expect group members to do this (Yalom, 1975). If the therapist has developed an extragroup relationship with one or more group members, the situation often requires the assistance of a consultant or a coleader (Schoener & Luepker, 1996).

Touch in Therapy Although sexual contact with current clients is clearly forbidden, there is less agreement about the appropriateness of nonerotic contact with clients (Glass, 1998). Group therapy involves consideration of the therapist’s contact with clients and clients’ contact with each other. Although groups may discuss or prohibit sexual contact or violence, they seldom create or discuss rules about touching. However, a group or a group leader can establish a policy 37

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in this regard and discuss it as a matter of informed consent. If touching in the group reflects the group norm, or if the leader encourages physical contact, group members may feel pressured into giving or receiving hugs. Schoener and Luepker (1996) pointed out, “There is obviously group pressure to conform in most groups, and the question remains as to how difficult it would be to refuse a hug or refuse to hug” (p. 381). Similarly, touching in group therapy has the potential for artificiality (Corey et al., 1982). Hugs in group therapy can reduce trust and closeness among members when they become an expectation or obligation rather than a spontaneous expression of honest feelings (Glass, 1998). Whether the physical contact is between group members, or between the therapist and one or more clients, in some situations, group leaders may encourage physical contact to meet their own needs for intimacy, power, or control without being sensitive to the needs of the clients. When any type of touching is used as a technique, it is important to consider the reason, as well as all of the messages that are communicated by a hug or other physical contact. The issue of touch in group therapy, as well as in individual therapy, should focus on client needs. As group members develop comfort and intimacy, touching may increase and may at times be therapeutically important such as when a client is expressing grief. Thus, it is not necessary to discourage spontaneous touching in group therapy, but it is preferable not to introduce touching as a technique if clients do not want it (Corey et al., 1982).

Simultaneous Individual and Group Therapy Concurrent individual and group therapy leads to a number of ethical dilemmas, especially if the same therapist offers both types of treatment (Glass, 1998). This practice is not uncommon. Ethics codes do not prohibit this practice, and it does not represent a dual relationship because the psychologist is relating to the client as a therapist in both contexts (Taylor & Gazda, 1991). The most common problems involve referral issues, confidentiality, and the degree of power and influence of the therapist. Glass (1998) has recommended that in most cases, clients will be 38

better off if group and individual therapy are provided consecutively and not concurrently. However, other therapists believe that at times, concurrent individual and group treatment may be appropriate. It may be helpful to supplement individual treatment with group therapy or use individual therapy to support a group member who may be feeling vulnerable or experiencing distress. A potential conflict of interest develops when therapists self-refer a group member as an individual therapy client or establish groups from their individual therapy clients. The therapist must carefully consider the possible conflict between his or her financial well-being and the needs of the client (Brabender & Fallon, 2009), because therapists could have financial incentives for referring to themselves. Although psychologists should not place their financial needs above the well-being of the client, just because the therapist may profit from concurrent therapy does not make it unethical. Meeting the needs of the client should be the deciding factor. If therapists are unsure about the merits of referring their individual patients to group therapy, they can seek consultation. Confidentiality also becomes challenging when clients are in concurrent individual and group therapy, or if a group member requests a private meeting or an individual session with the group therapist. It may be very difficult to remember the source of the information and what information the client permitted the psychologist to share. Clients need to know that confidentiality issues are more complex when they are being seen in both group and individual therapy. This should be discussed often, and therapists should clarify with clients what materials from individual therapy may be shared with the group. However, some issues shared in individual sessions may need to be shared with the group (Schoener & Luepker, 1996). As discussed earlier with regard to secrets in couple or family therapy, it is better to avoid promises of complete separation of information even if that were possible. When clients ask that information from an individual session not be shared with the group, they are putting the therapist in a very difficult situation. Some group therapists require all of the group members to be in individual therapy with them and

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for others, concurrent therapy is optional. When it is optional, problematic subgrouping may occur. Part of the group has a more intense relationship with the group leader, and these group members may have a more positive relationship with each other because they are all in individual therapy with the group leader, or jealousy about this special relationship could cause a more negative relationship among these group members than with group members who are not in individual therapy with the group leader. This is a dynamic that group leaders should be aware of if they see some of their group therapy clients in individual therapy. In addition to clarifying information about confidentiality, the process of informed consent should include a discussion of termination, especially in concurrent group and individual therapy. Clients need to know whether they may continue in one modality if they choose to terminate the other (Brabender & Fallon, 2009). In group therapy, membership stability is important, so one person deciding to leave the group will affect the entire group. This is one of the considerations of the group leader in determining the policy regarding termination. Group leaders have a great deal of flexibility in establishing policies regarding termination. However, they must make their policies clear to clients before the clients make a commitment to simultaneous individual and group therapy. Having simultaneous individual and group treatment provided by different therapists avoids the potential problems of confidentiality and subgrouping. However, it is most productive if the client consents to allow both therapists to communicate fully regarding treatment. RECORD KEEPING AND BILLING Records should contain all information about clients that is necessary for treatment. Records provide a systematic review of history, course of treatment, and current status, which can be especially helpful when there is a long period of time between contacts or when the client seeks services from another provider. Record keeping documents the psychologist’s planning and implementation of an appropriate

course of service, as well as client progress, and helps protect the psychologist in the event of legal or ethical proceedings (APA, 2007).

Family Therapy In couple or family therapy, psychologists usually keep one chart. When working with a couple or family, it is advisable to clarify in writing during the informed consent process who can legally consent to the release of information. If the psychologist considers all adult participants as clients, then the signatures of everyone are needed to release information. However, if the psychologist has identified one individual as the client and the other adults as collaterals, then information obtained from a collateral becomes part of the identified client’s chart and the client, not the collateral, controls the disposition of the records (Younggren, 2009).

Group Therapy In contrast, group therapists should keep separate records for each group member. Some group therapists prefer to keep one record for the group as a whole because this corresponds more closely to the way they experience and think about group work. But this raises the question of who would have access to such a record and who could release it? If separate records are kept for each individual group member, that person would have access to his or her record and would control release of information unless the group member was a minor. However, when records are kept for individual group members, it may be difficult to capture the flow, themes, and patterns of the group session (Knauss, 2006).Thus, some therapists write a common description of about a paragraph in each group member’s chart of the general group process, using initials to refer to group members, and then follow this with another paragraph on information unique to that particular client. A record with everyone’s name on it would create a problem in the event the records were entered into court. Although the psychologist may wish to write a summary in lieu of sending the records or redact the names of other patients, the decision is ultimately up to the court as to whether to allow those changes to the record. 39

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To ensure confidentiality, convenient access to records, and proper release of information, group therapists need to maintain separate documentation in individual charts on each group member. It is worth the extra time after each group therapy session to protect each group client’s confidentiality (Knauss, 2006). When clients are seen concurrently in individual and group therapy, the therapist must also decide whether to integrate notes from the group with those from individual therapy (Schoener & Luepker, 1996).

Billing As with individual therapy, family therapists need to explain financial considerations in advance, including the possibility that family sessions may last more than the traditional 1 hour of therapy. In addition, ethical issues related to billing in family therapy may occur if the families wish to use third-party reimbursement. The first issue is that many insurance companies do not reimburse for family therapy procedure codes. If insurance does not cover family therapy, the psychologist may bill for individual therapy and consider the other family members as collateral contacts (see earlier discussion of confidentiality and record keeping issues with collateral contacts), only if doing so meets the conditions specified in the family’s benefit package, including meeting the standards of medical necessity. Medical necessity usually requires an identified client with a covered diagnosis and a treatment plan designed to remediate the client’s illness. This requirement for an identified client may be inconsistent with a family therapist’s case conceptualization where the family or the relationship is the client, and some family therapists may not wish to participate in insurance programs for that reason. However, in some family therapy cases, one person does have a diagnosable mental illness that has brought the family into therapy. However, relational problems in the absence of a client with a diagnosis are not usually covered by third-party reimbursement. DIVORCE AND CUSTODY It is not uncommon for therapists to encounter families going through high conflict in which the parents 40

are unhappy, separated, or divorced. Some of the issues in dealing with high-conflict families include clarifying roles and maintaining therapeutic neutrality in a situation when parents are very sensitive to perceptions of favoritism. As a therapist, it is easy to be drawn into disputes between parents. However, this is a dangerous situation because even if a therapist attempts to take a neutral position and mediate the dispute between the parents, one of the parents is likely to feel he or she has “lost” the dispute and see the therapist as siding with the other parent. Parents involved in child custody cases are often willing or eager to file licensing board complaints (Woody & Woody, 2001). Often, the ethical and legal dilemmas associated with child custody arise unexpectedly because of the integral role therapists play in helping clients with family crises associated with divorce. Before a couple decides to divorce, they may have been seeing a therapist along with their children. Following the decision to divorce, the same therapist may treat members of the family regarding adjustment to separation, problems associated with custody, and visitation. These are difficult therapeutic issues, but they become ethical challenges when working with angry, adversarial clients. In addition to providing therapy, psychologists sometimes assist families going through a divorce by serving as custody evaluators, mediators, parent educators, parenting coordinators, or in other roles. Sometimes an attorney will contact the psychologist directly to perform one of these roles; at other times parents will arrive at the office because a court has ordered them to receive certain services. In any event, it is important for the psychologist to ensure that all parties understand what is being asked. It is not unusual for judges to use idiosyncratic language in their orders, which may vary from the terms that psychologists commonly use. For example, a judge may order “parent education” but really want the parents to get counseling because the judge believes one or both of them have a mental illness that interferes with their ability to parent well. It is generally considered a clinically contraindicated multiple relationship to serve as both a custody evaluator and a therapist for a child or family. Although the psychologist may believe that he or

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she could remain objective in both roles, it is difficult to serve in both roles without compromising Standard 3.05, Multiple Relationships, of the Ethics Code, which forbids psychologists from entering into clinically contraindicated or exploitative multiple relationships. The therapist may provide the court or custody evaluator with information about therapy with the proper release of information or a court order. However, therapists should not address questions of custody, visitation, or other custody-related issues (Woody & Woody, 2001). THERAPIST VALUES Therapists’ values play an especially important role in couple and family therapy. Everyone has values, and therapists are often unaware of the extent to which their own personal as well as professional values shape their therapeutic interventions (Hines & Hare-Mustin, 1978). Therefore, therapists need to acknowledge and explore their own value systems, rather than pretend that therapy is value-free or value-neutral (Glass, 1998). In family therapy, many issues elicit personal, familial, and societal values regarding preservation of the family system; extramarital relationships or open marriage; attitudes toward conception, pregnancy, and abortion; gender roles; and discipline practices (Lakin, 1994; Margolin, 1982). Dealing therapeutically with these issues is not easy when value conflicts occur among different family members or between the family and the therapist. Couples often come to therapy when they are considering separation or divorce, and they may be especially sensitive to the cues provided by therapists regarding their opinions about the relationship. However, the Professional Code of the American Association of Marriage and Family Therapists (AAMT) makes it clear that therapists advise clients that the decision to separate or divorce is the responsibility solely of the client (AAMFT, 2001). In spite of efforts to practice in accord with this principle, it can be extremely difficult. Most therapists form an opinion about whether a couple should remain together or not, and some authors (Gurman & Klein, 1981; Halleck, 1971) have suggested that therapists should

state their opinion, making it clear that the opinion is personal rather than a reflection of professional expertise. This makes the therapist’s values explicit rather than an implicit influence on the process of therapy. Some therapists who hold a traditional view of family may influence couples to stay together regardless of the circumstances. Although it is as inappropriate to pressure couples to divorce as it is to pressure them to stay together, in certain situations if divorce is not explored as a reasonable possibility, options available to the couple will be unnecessarily limited. It is especially important that couple therapists not equate the ending of a relationship with treatment failure (Margolin, 1982). Most couple therapists actively discourage extramarital relationships or even require that such relationships end for therapy to begin or continue depending on when the affair is discovered. Margolin (1982) pointed out that this is a strategic rather than a moralistic decision based on the assumption that the affair would stand in the way of both partners’ ability to commit themselves to their relationship and to therapy. Although this position is widely endorsed, it represents an assumption rather than an empirically derived conclusion. Although this issue is partly value driven, it is also partly pragmatic. Having an affair is highly reinforcing and as a result may reduce motivation for working on the relationship. Maintaining the affair also places one in a position of greater power. Both of these situations can reduce treatment effectiveness. Family therapists may also be particularly vulnerable to gender role biases. Margolin (1982) suggested that only by becoming aware of their values and biases can therapists avoid imposing their values on others. There is a lack of empirical support for the idea that successful relationships and successful child rearing require the preservation of stereotyped gender roles in the American family. Therefore, family therapists should avoid judging a family from a predetermined perspective of how families should function. However, in some situations, family members may want to work toward goals that the therapist believes represent a sexist position. By attempting to remain nonjudgmental about the client’s goals, the therapist may unintentionally reinforce sexist attitudes, but by attempting 41

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to establish a more egalitarian relationship, the therapist may prevent the family or couple from reaching their goals and alienate family members who are happy with traditional roles (Hines & Hare-Mustin, 1978). In treatment, the psychologist should respect clients’ autonomy and decision-making abilities. However, in couples therapy, the parties may not agree. The goal then would be to help them agree on family roles or to narrow the range of disagreement that they would accept from each other. Thus, therapists should not assume that traditional marital roles are either satisfactory or unsatisfactory to one or both members of a couple (Frank, Anderson, & Rubenstein, 1980). Because inattention to gender roles may reinforce gender role inequalities, Margolin (1982) recommended that family therapists evaluate couples’ goals from the perspective of both traditional and nontraditional values. CONCLUSION When providing multiperson therapy with couples, families, and groups, there are many difficult challenges for psychologists. An understanding of the codes of ethical practice for psychologists is extremely important. However, understanding the codes of ethical practice must be supplemented by careful thought and consideration about how the psychologist’s choices of the context of the therapeutic relationship will be beneficial or potentially harmful to each client involved in therapy. The emphasis is on the overarching ethical principles, compelling psychologists to do their very best to promote client welfare and respect autonomous decision making.

References American Association of Marriage and Family Therapists. (2001). AAMFT code of ethics. Alexandria, VA: Author. American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004. American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx Association for Specialists in Group Work. (1989). Ethical guidelines for group counselors. Alexandria, VA: Author. 42

Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Brabender, V. M., & Fallon, A. (2009). Ethical hot spots of combined individual and group therapy: Applying four ethical systems. International Journal of Group Psychotherapy, 59, 127–147. doi:10.1521/ ijgp.2009.59.1.127 Corey, G., Corey, M. S., Callanan, P., & Russell, J. M. (1982). Ethical considerations in using group techniques. Journal for Specialists in Group Work, 7, 140–148. doi:10.1080/01933928208411713 Corey, G., Williams, G. T., & Moliner, M. E. (1995). Ethical and legal issues in group counseling. Ethics and Behavior, 5, 161–183. doi:10.1207/ s15327019eb0502_4 Corey, M. S., & Corey, G. (1992). Groups: Process and practice (4th ed.). Pacific Grove, CA: Brooks/Cole. Crespi, T. D., & Howe, E. A. (2000). Families in crisis: Considerations and implications for school counselors. Counseling Today, 42, 6. Davis, K. L. (1980). Is confidentiality in group counseling realistic? The Personnel and Guidance Journal, 59, 197–201. Frank, E., Anderson, C., & Rubenstein, D. (1980). Marital role ideals and perceptions of marital problems in distressed and non-distressed couples. Journal of Marital and Family Therapy, 6, 55–63. Gladding, S. T. (2005). Ethical and legal issues in family therapy. In R. H. Coombs (Ed.), Family therapy review: Preparing for comprehensive and licensing examinations (pp. 531–547). Mahwah, NJ: Erlbaum. Gladding, S. T. (2007). Family therapy: History, theory, and practice. Upper Saddle River, NJ: Pearson/Merrill Prentice Hall. Glass, T. A. (1998). Ethical issues in group therapy. In R. M. Anderson, T. L. Needels, & H. V. Hall (Eds.), Avoiding ethical misconduct in psychology specialty areas (pp. 95–126). Springfield, IL: Charles C Thomas. Gurman, A. S., & Klein, M. H. (1981). Women and behavioral marriage and family therapy: An unconscious male bias? In E. A. Blechman (Ed.), Contemporary issues in behavior modification with women (pp. 170–189). New York, NY: Guilford Press. Gurman, A. S., & Kniskern, D. P. (1978). Research on marital and family therapy: Progress, perspective, and prospect. In S. L. Garfield, & A. E. Bergin (Eds.), Handbook of psychotherapy and behavior change: An empirical analysis (2nd ed., pp. 817–901). New York, NY: Wiley.

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Halleck, S. L. (1971). The politics of therapy. San Francisco, CA: Jossey-Bass.

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Hines, P. M., & Hare-Mustin, R. T. (1978). Ethical concerns in family therapy. Professional Psychology: Research and Practice, 9, 165–171. doi:10.1037/07357028.9.1.165

O’Leary, K. D., Vivian, D., & Malone, J. (1992). Assessment of physical aggression against women in marriage: The need for multimodal assessment. Behavioral Assessment, 14, 5–14.

Jory, B., Anderson, D., & Green, C. (1997). Intimate justice: Confronting issues of accountability, respect, and freedom in therapy for abuse and violence. Journal of Marital and Family Therapy, 23, 399–419. doi:10.1111/j.1752-0606.1997.tb01053.x

Patten, C., Barnett, T., & Houlihan, D. (1991). Ethics in marital and family therapy: A review of the literature. Professional Psychology: Research and Practice, 22, 171–175. doi:10.1037/0735-7028.22.2.171

Knauss, L. K. (2006). Ethical issues in record keeping in group psychotherapy. International Journal of Group Psychotherapy, 56, 415–430. doi:10.1521/ ijgp.2006.56.4.415 Lakin, M. (1988). Ethical issues in the psychotherapies. New York, NY: Oxford University Press. Lakin, M. (1994). Morality in group and family therapies: Multiperson therapies and the 1992 ethics code. Professional Psychology: Research and Practice, 25, 344–348. doi:10.1037/0735-7028.25.4.344 Lasky, G. B., & Riva, M. T. (2006). Confidentiality and privileged communication in group psychotherapy. International Journal of Group Psychotherapy, 56, 455–476. doi:10.1521/ijgp.2006.56.4.455 Mangione, L., Forti, R., & Iacuzzi, C. M. (2007). Ethics and endings in group psychotherapy: Saying good-bye and saying it well. International Journal of Group Psychotherapy, 57, 25–40. doi:10.1521/ ijgp.2007.57.1.25 Margolin, G. (1982). Ethical and legal considerations in marital and family therapy. American Psychologist, 37, 788–801. doi:10.1037/0003-066X.37.7.788

Schoener, G. R., & Luepker, E. T. (1996). Boundaries in group therapy: Ethical and practice issues. In B. DeChant (Ed.), Women and group psychotherapy (pp. 373–399). New York, NY: Guilford Press. Smokowski, R., Rose, S., Todar, K., & Reardon, K. (1999). Post-group casualty status, group events and leader behavior: An early look in the dynamics of damaging group experiences. Research on Social Work Practice, 9, 555–574. doi:10.1177/104973159900900503 Stith, S. M., McCollum, E. E., Rosen, K. H., Locke, L. D., & Goldberg, P. D. (2005). Domestic violencefocused treatment. In J. L. Lebow (Ed.), Handbook of clinical family therapy (pp. 406–430). Hoboken, NJ: Wiley. Taylor, R. E., & Gadza, G. M. (1991). Concurrent individual and group therapy: The ethical issues. Journal of Group Psychotherapy, Psychodrama, & Sociometry, 44, 51–59. Willage, D. E., & Meyer, R. G. (1978). The effects of varying levels of confidentiality on self-disclosure. Group, 2, 88–97. doi:10.1007/BF02383521 Woody, R. H., & Woody, J. D. (2001). Ethics in marriage and family therapy. Washington, DC: American Association for Marriage and Family Therapy.

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CHAPTER 4

ASSESSMENT AND TESTING Donald N. Bersoff, David DeMatteo, and Elizabeth E. Foster

Psychological assessment, particularly testing, is but one of the “holy trinity” of the roles of psychologists, along with therapeutic intervention and research. Practically every subgroup of psychologists engages in measurement of some sort. Researchers use tests to acquire data. Clinical psychologists use tests for diagnosis and to monitor progress in therapy. School psychologists use tests to determine eligibility for special education. Counseling psychologists use vocational, occupational, and interest tests to guide career development. Forensic psychologists use tests to help guide legal decision making. Industrial and organizational psychologists use tests to measure qualifications for employment and promotion. Academic psychologists use tests, often their own instruments, to assess student learning. As a result, it is probably true that no one in the United States has or will escape being evaluated by assessment devices constructed, administered, or interpreted by psychologists. In many instances, the results of testing will have a profound impact on the lives of test takers—for example, admission to college or graduate school, eligibility for special school programs, determination of criminal responsibility, or even exemption from the death penalty. Given the potential positive or negative impact that psychological testing may have, it is imperative that tests are constructed so that they are reliable and valid for the specific purpose for which they are used, given and interpreted by competent practitioners, and administered with sensitivity to the rights and entitlements of test takers. In that light, this chapter attempts to cover the essential ethical considerations when psychologists construct and conduct psychological assessments.

We cover such issues as test user qualifications, informed consent, the troubling concern about test security and the disclosure of test material and test data, and the emerging use of online assessment and automated tests, weaving in, as appropriate, the relevant provisions of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) and other documents. (More information on testing as it relates to forensic issues can be found in Chapter 6 of this volume, and more information on legal issues surrounding testing in the public schools can be found in Chapter 7 of this volume.) TEST CONSTRUCTION The construction and revision of psychological tests raise a variety of practical and ethical considerations. Fortunately, for those interested in test development and revision, the APA Ethics Code, the Standards for Educational and Psychological Testing (Test Standards; American Educational Research Association [AERA], APA, & National Council on Measurement in Education (NCME), 1999), policy statements from relevant organizations, and empirical studies offer guidance. Section 9 of the APA Ethics Code, Assessment, contains the most relevant provision regarding test construction and serves as a useful starting point. Standard 9.05, Test Construction, states, “Psychologists who develop tests and other assessment techniques use appropriate psychometric procedures and current scientific or professional knowledge for

DOI: 10.1037/13272-004 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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test design, standardization, validation, reduction or elimination of bias, and recommendations for use.” This provision provides general guidance and requires knowledge of several technical aspects of test construction. More specific guidance is found in the Test Standards. It was developed through the collaboration of the AERA, the NCME, and the APA. Its intent “is to promote the sound and ethical use of tests and to provide a basis for evaluating the quality of testing practices” (AERA et al., 1999, p. 1). It is organized into three sections, with the first section devoted to test construction, evaluation, and documentation. Psychologists who follow the provisions in this section of the Test Standards should be in compliance with Standard 9.05 of the ethics code. The Test Standards defines test development as “the process of producing a measure of some aspect of an individual’s knowledge, skills, ability, interests, or other characteristics by developing items and combining them to form a test” (AERA et al., 1999, p. 3). It also includes identifying conditions for test administration and determining procedures for scoring and reporting results. Perhaps the most salient provision is Test Standard 3.1: “Tests . . . should be developed on a sound scientific basis. Test developers and publishers should compile and document adequate evidence bearing on test development” (AERA et al., 1999, p. 43). From this general but imperative statement flow the more specific requirements for creating psychometrically sound and ethically usable instruments. The Test Standards begins by reminding us that validity, or the degree to which evidence and theory support the interpretation of test scores, is the most important consideration in developing and evaluating tests. It requires that information about reliability and measurement error be examined and reported. If test scores are derived from the differential weighting of items, the rationale and process used to develop, review, and assign items must be specified. To ensure that test results are interpreted properly, test developers must carefully define and clearly describe the reference group upon which the test was normed so that users can compare the individual test taker’s score with that of the standardization group. If developers suggest the use of cut scores, that is, the practice of dividing the dis46

tribution of scores into categories, the Test Standards requires developers to show that their use is empirically defensible. The Test Standards emphasizes that the “usefulness and interpretability of test scores require that a test be administered and scored according to the developer’s instructions” (AERA et al., 1999, p. 61). This admonition creates dual responsibilities. Test developers must provide clear instructions for the administration and scoring of tests and test users “should follow carefully the standardized procedures for administration and scoring specified by the test developer, unless . . . an exception should be made” (AERA et al., 1999, p. 63), as when the test taker has a relevant disability. Finally, the Test Standards mandates that developers create a manual or other form of documentation to allow test users and reviewers to determine the appropriateness of the test for its intended purpose. A great deal of attention, as is evident from the previous material, has been paid to the issues related to test construction but issues concerning test revisions have not been so frequently addressed. The Test Standards has a relevant provision. Test Standard 3.25 states that a “test should be amended or revised when new research data, significant changes in the domain represented, or newly recommended conditions of test use may lower the validity of test score interpretations” (AERA et al., 1999, p. 48). There are other indicators that a particular test may need to be revised. If the language of the test questions becomes dated or the test stimuli themselves are outdated, test revisions are likely needed (Adams, 2000). For example, older readers may remember the picture of a Western Union messenger in puttees in an old version of the Stanford-Binet intelligence test. The vast majority of current test takers would have no experience with such individuals. Or, a test question that may have once been culturally fair may now be considered culturally biased (see, e.g., Larry P. v. Riles, 1979). The performance of specific items may change in unpredictable ways, so that a revision is necessary (e.g., Knowles & Condon, 2000). For example, an item that was previously a reliable indicator of a construct such as depression, may no longer function reliably if the

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item contains wording that has become outdated. A change in the demographic composition of the target population may raise questions about the validity of a test that was standardized and normed on a sample with different demographic characteristics. If existing norms were derived from a sample with a different demographic makeup than the target population, the available norms would be of limited utility in terms of test interpretation and a resultant clinical decision. A test also may need to be revised because of society-wide changes in a particular skill or ability. The most pertinent example is the so-called Flynn effect (Flynn, 1985, 1998, 2006). The Flynn effect refers to the gradual, systematic, and population-wide improvement in intelligence test performance over time that causes IQ test norms to become obsolete approximately every 20 years. The consensus is that IQ scores increase at approximately 0.3 points per year between renorming periods (e.g., Flynn, 1984, 1999), although more recent resources have noted that the factors underlying the changes in average IQ scores over time may be more complex than previously thought (Hagan, Drogin, & Guilmette, 2008). Nevertheless, the Wechsler scales and the Stanford-Binet, the two most commonly used IQ tests, have an approximately uniform rate of increase in IQ scores between norming periods (Flynn, 2006). Thus, the Flynn effect can have an obvious impact on the validity and stability of determinations of intellectual functioning. As a result, IQ tests need to be renormed so that the scores more accurately reflect the population’s true level of intellectual functioning. Each time an IQ test is renormed there is a generalized lowering of IQ scores because the new norms recalibrate the average IQ to remove the increases that accumulated over the previous norming cycle. This leads to an appreciable increase in the diagnosis of mental retardation each time new IQ norms are published (Ceci, Scullin, & Kanaya, 2003; Flynn, 2006; Scullin, 2006). Assume that a psychologist uses the Wechsler Intelligence Scale for Children (WISC) III published in 1991, rather than the current WISC-IV, published in 2003, to evaluate a child for special education.

Is that psychologist acting unethically? The relevant Ethics Code provision is the following: Standard 9.08 (Obsolete Tests and Outdated Test Results): (a) Psychologists do not base their assessment or intervention decisions or recommendations on data or test results that are outdated for the current purpose. (b) Psychologists do not base such decisions or recommendations on tests and measures that are obsolete and not useful for the current purpose. If the question is whether the child is eligible for placement in a class for children with mental retardation, the answer may be determined on the basis of the score the child received on the WISC–III. If the cutoff score for eligibility is an IQ of 70, and the child’s score was 62, one could argue that the psychologist should not be charged with an ethical violation. The difference between the two scales in this range is one or two IQ points at most. Thus, even though the WISC–III may be outdated or even considered obsolete, it is still useful for the current purpose of accurately determining eligibility. On the other hand, an IQ score of 71 on the WISC–III might endanger the child’s eligibility and could trigger a charge of unethical conduct. Although it is always appropriate and recommended to use the most recent version of a test, using an older version of the test is not necessarily unethical and would depend on the situation and the consequences. As the Test Standards (3.25) state, “If an older version of a test is used when a newer version has been published or made available, test users are responsible for providing evidence that the older version is as appropriate as the newer version for that particular test use” (AERA et al., 1999, p. 48). Before leaving the topic of test construction, it is important to remember the wise counsel of the late Sam Messick. He argued that “not only should tests be evaluated in terms of their measurement properties but that testing applications should be evaluated in terms of their potential social consequences” (Messick, 1980, p. 1012). Whether the test is any good, he said, is a scientific question. Whether it should be used for the 47

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proposed purpose in the proposed way is an ethical one. He argued that the potential social consequences of testing should be appraised. In a later article, he reiterated his point: “Validity and values are one imperative, not two, and test validation implicates both the science and the ethics of assessment, which is why validity has force as a social value” (Messick, 1995, p. 749; but see LeesHaley, 1996). A pertinent case in point is the use of the Psychopathy Checklist–Revised (PCL-R) in the penalty phase of capital murder cases. Some psychologists are using the PCL-R to testify that capital defendants (i.e., those who commit first-degree murder) pose a continuing threat of violence, even while confined in maximum security prisons. Although the PCL-R is a psychometrically sound instrument that efficiently detects those with psychopathy and can expose a risk factor for future violence in freeliving populations, it is not a valid predictor of the most pertinent forms of violence relevant to determining future dangerousness in those found guilty of first-degree murder, particularly if they are African Americans and will be incarcerated in maximum detention facilities (Bersoff, 2002; Edens, 2001; Edens, Buffington-Vollum, Keilin, Roskamp, & Anthony, 2005; Edens, Petrila, & Buffington-Vollum, 2001; Sorenson & Pilgrim, 2001). To use an otherwise valid test for invalid purposes with life-ordeath consequences illustrates Messick’s points and is clearly at variance with Ethics Code Standards 3.04 (Avoiding Harm) and 9.02(a) (Use of Assessments): “Psychologists administer, adapt, score, interpret, or use assessment techniques . . . for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques.” TEST USER QUALIFICATIONS In addition to test construction and test fairness, the APA has long been concerned about test misuse, particularly by those who may not have the requisite psychometric sophistication to administer and interpret assessment devices. In fact, the inaugural volume of the American Psychologist contained an article that described the policies of 48

three test publishers that included the checking of qualifications of potential test purchasers (Bennett & Seashore, 1946). Since that time, many test publishers have established procedures designed to scrutinize and verify the professional credentials of potential test purchasers before permitting them to buy certain psychological tests. Some publishers assign “test qualification levels,” based on the potential purchaser’s necessary education, training, and experience, such as highest professional degree, licensure and board certification status, and history of test administration and interpretation. The more sophisticated and better trained and experienced the potential buyer, the higher the qualification level. The APA has also been vigilant, largely in response to concerns over the misuse of psychological tests and the competence of test users. The APA began to pay formal attention to the issue in 1981 when it formed the Test User Qualifications Working Group. APA provided further guidance in 1994 when its Committee on Psychological Tests and Assessment (CPTA) published its Statement on the Use of Secure Tests in the Education of Graduate and Undergraduate Psychology Students (APA, CPTA, 1994). It recommended that before students administer any kind of psychological test, they should have completed appropriate coursework in tests and measurements, statistics, and psychometrics, and they should be thoroughly trained in the proper administration of the specific test being used. It is advisable that the students be supervised in practice and initial administrations, as well as in scoring of responses and deriving interpretations. (p. 1) The most comprehensive and recent set of guidelines, however, was developed by the Task Force on Test User Qualifications (TFTUQ; Turner, DeMers, Fox, & Reed, 2001). TFTUQ’s final report described two types of test user qualifications. First, it listed the generic knowledge and skills deemed essential for all test users. These included guidelines covering the following: (a) psychometric and measurement knowledge; that

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is, descriptive statistics, reliability and measurement error, validity and meaning of test scores, normative interpretation of test scores, selection of appropriate tests, and test administration procedures; (b) ethnic, racial, cultural, gender, age, and linguistic variables; (c) testing individuals with disabilities; and (d) supervised experience. Second, TFTUQ addressed the use of tests in specific contexts such as employment, educational, career and vocational counseling, healthcare, and forensic settings. The purpose of these second set of guidelines was to address content-relevant qualifications that built upon the generic qualifications enumerated above. Despite the efforts of many publishers and the APA to restrict test purchase and use to qualified practitioners, their efforts may be undermined by the electronic auction sites on the Internet, such as eBay. As LoBello and Zachar (2007) reported, eBay has “no apparent restriction against listing psychological test materials for sale” (p. 68). To determine the extent to which assessment devices were available on the Internet, LoBello and Zachar surveyed eBay for a 3-month period in 2005. They found that 82 psychological tests or partial tests were listed for sale during this time. Two thirds of the tests for sale were complete, including the test manual. “The majority of the items (74%) were versions of the Wechsler [scales for adults or children]. The Rorschach Inkblot Test was the most frequently listed personality instrument [9.8%]” (p. 69). Although the most popular standardized personality test, the Minnesota Multiphasic Personality Inventory II, constituted only 2.4% of the tests available, it was the most expensive item, with one kit going for $579.89. Most important, almost half the items listed for auction “did not specify that the sale of the item was restricted to individuals who met professional or training qualifications” (LoBello & Zachar, 2007, p. 69). Of the 55 items that included a test manual, almost 40% did not require that sales be restricted to qualified practitioners. Because the APA Ethics Committee and state licensing boards only have enforcement powers over persons in their jurisdiction, there is little organized psychology can do to stop these auctions by nonpsychologists. But there can be

sanctions against psychologists who offer tests on eBay or similar sites. Ethical Standard 9.07, Assessment by Unqualified Persons, states that “psychologists do not promote the use of psychological assessment techniques by unqualified persons, except when such use is conducted for training purposes with appropriate supervision” (APA, 2010, p. 12). LoBello and Zachar would go further, recommending that in the next revision of the ethics code, a provision be added reading psychologists provide psychological test materials only to qualified individuals and do not offer previously purchased materials for sale in any venues where test content may be exposed to unqualified individuals or where the ability to assess and verify qualifications is limited. (p. 70) Beyond the fundamental issue of who is qualified to purchase and administer psychological tests is the issue of competence of those who are qualified. For example, among the factors that account for most test misuse is inaccurate scoring (Moreland, Eyde, Robertson, Primoff, & Most, 1995; Simons, Goddard, & Patton, 2002). Avoiding scoring errors is especially important in high-stakes testing (see section on External Consequences), which is likely to result in serious consequences for the test taker. It is also essential to follow the standardized administration of a test as delineated in the manual and when, in an unusual circumstance, that is not possible, to carefully note in the report its impact on both the scoring and interpretation of the test data. In clinical settings particularly, changes in administration may lead to misdiagnosis (Lee, Reynolds, & Wilson, 2003). The report itself should be written in a manner that is useful for its intended audience. It is best to avoid jargon (Groth-Marnat & Horvath, 2006; Harvey, 2006), to note any deviations that may have occurred during testing and its impact on the results, and to craft the report to be as true as possible to the individual (see section on Collaborative Assessment). Finally, when conducting assessments in a forensic context, competence requires knowing how to handle requests for third parties, such as attorneys, to observe the evaluation (see American 49

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Bar Association Criminal Justice Mental Health Standards, Sec. 7-3.6(c), 1989; Otto & Krauss, 2009; Shealy, Cramer, & Pirelli, 2008). (More information about this complex issue can be found in Chapter 6 of this volume.) TEST SECURITY The access to psychological assessment devices raises the analogous question of test security, about which there is a great deal of misunderstanding. Like access by unqualified users, the maintenance of test security has been a long-standing professional concern. Clearly, the release of test items and scoring manuals potentially can have several negative consequences. The psychometric integrity of many psychological tests is contingent on test takers having no prior knowledge of the test questions and answers (APA, 1999; Groth-Marnat, 2003). As the CPTA (1994) noted, “Certain tests used by psychologists . . . may suffer irreparable harm to their validity if their items, scoring keys or protocols, and other materials are publicly disclosed” (p. 1). For example, some psychological tests take several years to construct and remain in use for many years. The creation of these tests is both time consuming and costly. Norms are developed only through the gathering of data from large samples in several locations. Most of the popular intelligence tests and personality instruments are available in only one form. For some particular constructs or purposes there may be a limited number of available psychological tests. In these cases, the loss of a validated and effective assessment tool “imposes very concrete harm to the general public” (APA, CPTA, 1996, p. 646) and would necessitate the time and expense to develop an equivalent test (see also Axelrod et al., 2000). The APA has addressed the issue of test security in several published documents and policy statements, and we shall discuss these below. Although these publications provide a degree of guidance for psychologists who use proprietary (commercially available copyrighted) tests in their research or clinical practice, the language, standards, and guidelines provide a great deal of latitude and room for interpretation. As such, the boundary between the appropriate and inappropriate release of test materials and 50

“raw data” is best described as blurry. We shall attempt to provide as much guidance as possible but readers should know this area is fraught with peril. We begin with the enforceable standards in the Ethics Code. The code performs a useful function for analyzing test security by distinguishing between the release of test data and the release of test materials. Standard 9.04 defines test data as referring to “raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior” (APA, 2010, p. 12). These data can be disclosed to test takers and/or their representatives pursuant to the test takers’ release (although an exception is made if psychologists believe test takers will experience substantial harm or misuse the data). Despite this exception, the Standard recognizes that even if test takers do not consent to disclosure (or presumably, if psychologists do not believe release is in test takers best interests), a law or a court order may require release of the data. The release of test questions, stimuli, and instruments, protocols, and manuals, denominated “test materials,” is covered in Standard 9.11 (Maintaining Test Security). Despite the strong concern about test security, the standard only requires psychologists to make “reasonable efforts [emphasis added] to maintain the integrity and security of test materials . . . consistent with law and contractual obligations” (APA, 2010, p. 12). The Test Standards also contains cautionary provisions concerning test security. Standard 5.7 states that “test users have the responsibility of protecting the security of test materials at all times” (AERA et al., 1999, p. 64). But the comment amplifying the standard is illuminating. It iterates the need for psychologists to take “all steps necessary” to secure test materials but “with due consideration of ethical and legal requirements” (p. 64). It recognizes that test users “must balance test security with the rights of all test takers” (p. 64). The comment to Standard 11.7 acknowledges as well that at times test security may be compromised when a particular assessment device is the subject of litigation (e.g., employment discrimination suits). But it urges protection of the test if possible: “When tests are involved in litigation, inspection of the instruments should be

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restricted—to the extent permitted by law—to those who are legally or ethically obligated to safeguard test security” (p. 115). Standard 12.11 emphasizes once again that test users “should ensure the confidentiality of . . . testing materials consistent with legal and professional ethics requirements” (p. 133). The comment to the standard also states that users are responsible “for protecting the copyrights of all tests to the extent permitted by law” (p. 133), a requirement made explicit in Standard 11.8 (“Test users have the responsibility to respect test copyrights,” p. 115). The issue of copyrights surfaces the tension among the proprietary rights of test publishers, test takers, and the requirements of the law. Although some tests are in the public domain, most commercially available psychological tests are protected under the federal copyright laws (Copyrights, 2006). These laws prohibit, among other things, the copying (by any means), reproduction, or dissemination of the test without the express permission of the copyright holder. Psychologists who buy or otherwise use protected tests should be familiar with the terms of the purchase or lease agreement promulgated by the publisher. This recommendation applies with equal force to those who wish to reproduce, in whole or part, test materials for an article, course materials, or any other purpose. Simply acknowledging the source of the copyrighted material (e.g., citing it in references) does not protect against an allegation of copyright infringement. Consulting with the copyright holder is one effective way to ensure that one is not using a proprietary instrument in a way that conflicts with contractual or legal obligations. There is, however, an important exception in the federal copyright laws, known as the “fair use” doctrine. It was first developed by judicial decisions and is now codified in statute. Under this exception, if the copying of the test materials is denominated a fair use, use of the materials without permission is not a copyright violation. The most usual applications of the fair use doctrine include “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (Copyrights, 2006, § 107). In determining whether to apply the fair

use doctrine in those circumstances the statute specifies four factors: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. APA has emphasized that psychological tests traditionally have enjoyed a heightened level of protection under a fair use analysis (APA, 1999). In addition, the distinction between what constitutes fair use and copyright infringement is not clearly defined. Thus, it is often helpful if one wants to reproduce copyrighted materials to consult the test publisher, obtain written permission to use the materials, or secure legal advice. Nevertheless, there are several important implications embedded in our analysis of test security. First, the Ethics Code requires only that psychologists make reasonable efforts to maintain test security. Second, both the Ethics Code and the Test Standards recognize the maintenance of test security may give way to legal requirements. As the TFTUQ noted, test users should understand “the legal . . . issues related to the release of test materials” (Turner et al., 2000, p. 26). In many instances, the requirements of the law may trump ethical principles and copyright rights. Two cases exemplify this assertion. The first case is Detroit Edison Co. v. National Labor Relations Board (1979) decided by the U.S. Supreme Court. The case started when 10 employees of a local electric company who applied for promotions failed to achieve acceptable scores on a battery of aptitude tests. Under the terms of a collective bargaining agreement union representatives for the aggrieved employees contested the results and claimed the examination procedure was unfair. They requested that the employer submit the tests, the employees’ answer sheets, and other test-related data to the union. The employer argued that disclosing test material would make the battery useless in 51

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the future. They also invoked an ethical matter, claiming that disclosing data on any particular employee without consent would destroy the confidential relationship between the employee and the psychologist who administered the test. The union asserted they had the right to see these data. An administrative law judge ruled that the employees’ test results should be turned over to an industrial psychologist chosen by the union. To protect test security, the judge barred the union from copying or disclosing questions to employees. Nevertheless, the National Labor Relations Board (NLRB) overruled that decision and ordered that the test and the results be given directly to the union. It had the discretion, but was not required, to use a psychologist if it needed help in interpreting test results. The NLRB’s decision was reviewed by a federal appeals court. Over the objections of the APA (which filed a friend of the court brief), the court affirmed the NLRB’s order and ruled that test security would be protected adequately through the board’s banning of disclosure of test materials by the union. The employer countered that any disclosure of test questions would cause the psychologists involved in the testing to breach the then extant version of the APA Ethics Code. The appellate court rejected that argument, asserting that the APA Code of Ethics could not stand in the way of union members exercising their rights to collective bargaining. The employer petitioned the Supreme Court to review the appellate court’s decision. The Court acknowledged that “test secrecy is concededly critical to the validity of any such [selection] program, and confidentiality of scores is undeniably important to the examinees” (Detroit Edison, 1979, p. 304). The Court held that the NLRB’s order, enforced by the appellate court, failed to adequately accommodate those concerns. Thus, it held that order requiring the employer to disclose unconditionally the employees’ scores to the union was erroneous. But the scores of those employees who consented to disclosure could be turned over to the union. The psychologists in this case were seen as part of management and as such were bound by the collective bargaining agreement between their employer and the union, creating the possibility 52

of a conflict between their ethical duties and the duty to obey the law. In reviewing this decision, Eberlein (1980) asserted that psychologists must be prepared to deviate from ethical standards when a statute or a court order provides the reason to do so. Thus, the overarching point in Detroit Edison is that a law requiring the disclosure of test materials cannot be defeated by the ethical standards of a professional association. The decision implies that psychologists cannot rely solely on professional ethics and standards to protect them when they are faced with overriding obligations imposed by law. A second relevant case is Parents in Action on Special Education (PASE) v. Hannon (1980). PASE involved a challenge to the validity of the then current editions of the WISC and the Stanford-Binet. The parents of African American children challenged the use of these standardized tests to place these children in classes for the educably mentally retarded. The parents argued that the tests were racially and culturally biased, resulting in a disproportionate number of their children being misclassified. The federal district court judge who heard the case found the expert witnesses on both sides not to be credible so he decided to review each item on these tests. He cited each of the items as well as the correct and incorrect answers in the respective manuals in his lengthy written opinion (ultimately concluding that though there were a few biased items, the tests were not discriminatory; but see Larry P. v. Riles, 1979). Published judicial opinions are not copyrighted and are accessible to anyone. Obviously, the security and validity of the tests were seriously compromised (Bersoff, 1982, 1986). There is one other legal constraint in protecting test security. Suppose a psychologist we will call Jane Doe testifies that a party she has evaluated has a particular diagnosis. When the psychologist is crossexamined, she is asked what led her to reach that diagnosis. She answers, “In the main, the results of my psychological testing.” The cross-examiner then inquires which test stimuli and answers Dr. Doe relied on. She responds, “I can’t give you the test questions because I am ethically barred from doing so.” The cross-examining attorney would almost assuredly remind Dr. Doe that the Specialty Guidelines

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for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) states that “forensic psychologists have an obligation to document and be prepared to make available, subject to court order or the rules of evidence, all data that form the basis for their evidence or services” (Guideline VI[B], p. 661). If Dr. Doe refuses to disclose the test stimuli bases for her opinion, her testimony could be excluded, a significant detriment to the party for which she is testifying. On the other hand, the court may demand that she disclose the test stimuli. With the advent of televised trials the situation becomes even more perilous. Consider the position of the psychologist who is compelled by the court to discuss questions, results, and interpretation of such materials as IQ scales, personality tests, and projective instruments while on television. A review of the standards, guidelines, and cases we have described above makes clear that there is no absolute ethical bar to the disclosure of test data and materials. There are obvious external limits to protecting test security, most particularly, the demands of the legal system. Given the anxiety-provoking state of affairs with regard to protecting test material, two of the APA’s governing bodies have provided some significant guidance. The Statement on the Disclosure of Test Data (1996), promulgated by the CPTA and adopted as APA policy, recognizes the importance of test security and the protection of test materials by copyright, but it also understands that the law may impose contrary requirements on the forensic psychologist. CPTA recommends that “psychologists faced with demands to produce test data are encouraged to secure advice about the governing law(s) in the state where the problem arises as well as federal and local statutes and regulations applicable to specific contexts” (CPTA, 1996, p. 647). Strategies for coping with subpoenas and compelled testimony regarding tests are addressed in more detail in a policy statement drafted by APA’s Committee on Legal Issues (COLI, 2006). COLI understands that the law requires all citizens to provide information necessary for deciding issues before a court. The more relevant information a witness provides, the greater the likelihood of a fair decision. Thus, as in Dr. Doe’s case, a failure to disclose test items could reduce the fairness of the trial.

COLI also recognizes that this obligation may conflict with ethical constraints. But they acknowledge that there is an ethical standard that addresses the issue. Standard 1.02 (Conflicts Between Ethics and Law) states, If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority. Under no circumstances may this standard be used to justify or defend violating human rights. (APA, 2010, p. 4) COLI has provided some recommendations when faced with the demand for test materials in a legal setting. First, if the demand is made in the form of a subpoena, COLI recommends that the psychologist determine, with attorney consultation, whether the subpoena is legally valid. If it is not valid, there is no legal obligation to respond. If valid, then some formal response is required. Second, COLI recommends contacting the client. The client, assuming competence to consent, may agree to disclosure, although that does not relieve the psychologist from determining whether disclosure conflicts with copyright. Third, COLI suggests that the psychologist negotiate with the requester, attempting to preclude disclosure of secure material. That tack is likely to fail, at least in part, but one more likely outcome is an agreement that test material be turned over to a psychologist appointed by the requester rather than turned over to an unqualified party or attorney. If negotiations fail, COLI indicates quite correctly, the safest course is to seek guidance from the court. There are several methods for securing that guidance. The psychologist may write a letter to the court “stating that the psychologist wishes to comply with the law but that he or she is ethically obligated not to produce . . . test data or to testify about them unless compelled to do so by the court” (COLI, 2006, p. 217). A more formal route is to file a motion to quash the subpoena, that is, an application to vacate or declare invalid the 53

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subpoena. As an alternative, the psychologist can file a motion for a protective order, that is, a formal request to, for example, limit disclosure to the parties and their attorneys and/or closing the proceeding during the psychologist’s testimony. As COLI warns, “A psychologist who refuses to answer questions without a reasonable basis may be penalized by the court, including the obligation to pay the requesting parties’ costs and fees in obtaining court enforcement of the subpoena” (p. 218). COLI fails to mention that an adamant refusal even after the court demands disclosure can lead to the psychologist being held in contempt and jailed until the psychologist complies. But, acceding to the court’s demands for disclosure of test materials after the psychologist attempts all reasonable efforts to protect test security should insulate the complying psychologist from a charge of an ethical violation or copyright infringement. Finally, we discuss another threat to test security— the recent development of widespread access to the Internet. Available throughout the world, there is at present no mechanism to regulate its content, although specific websites are capable of instituting protections and monitoring or removing inappropriate material. We have already discussed the threat the Internet poses to the accessibility of psychological tests to unqualified users. Analogously, researchers have examined whether the Internet could compromise test security. For example, Ruiz, Drake, Glass, Marcotte, and vanGorp (2002) identified websites containing sensitive information about psychological and neuropsychological tests and procedures and then assessed the degree of threat the websites posed to the validity of the tests. They limited their search to websites containing information that might help a test taker to simulate depressive symptoms. Ruiz et al. placed the websites into three categories—minimal threat, indirect threat, and direct threat. The majority of the websites (70%–85%) fell into the minimal threat category; that is, the sites were educational or simply provided general descriptions of psychological tests and procedures. Roughly 20% to 25% of the websites fell into the indirect threat category; that is, the sites contained sensitive information about the goals and procedures of medical examinations, signs of malingering, and the titles of malingering 54

instruments but did not provide directions for those seeking to falsely present with depressive symptoms. A small minority (about 2%–5%) of websites, however, were classified as direct threats; that is, they contained detailed information about instruments, including example test questions. At least one site provided instructions on how to fake symptoms on certain tests, including the Minnesota Multiphasic Personality Inventory—2 (MMPI–2) and the Rorschach. In a similar study, Bauer and McCaffrey (2006) examined Internet access to three commonly used symptom validity tests—the Test of Memory Malingering (TOMM), the Victoria Symptom Validity Test (VSVT), and the Word Memory Test (WMT). The researchers identified the top 50 websites for each of the three tests, and then classified the website into four threat level categories: (a) none (no information provided); (b) low (minimal or basic information); (c) moderate (describes test format or discusses studies examining the test); and (d) high (explains scoring procedures or provides specific cutoff scores). They classified 12% of the TOMM websites, 8% of VSVT websites, and none of the WMT websites into the high-threat category. Some of the high-threat TOMM websites provided information on cutoff scores, and one website specified how many errors the neurologically impaired group made when compared with the control group. For the VSVT, one high-threat website provided a sample report, and another identified the number of incorrect questions needed for “failure.” On the basis of their results, Bauer and McCaffrey (2006) concluded that these kind of websites provided information that could seriously threaten test security and validity of these commonly used tests. A more direct threat to test security noted in a report developed by an ad hoc APA Task Force on Psychological Testing is the unauthorized copying by an examinee or an observer and printing of test items during test administration via the computer (Naglieri et al., 2004). Naglieri et al. (2004) recommended that prevention of this threat to test security can be accomplished, in part, “within a browser by disabling access to menu selections such as cut, copy, paste, export, save, save as, print, print screen, and so forth” (p. 154). When full-scale client security is required, they suggested installation of a test security agent on

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the client’s desktop: “Such an application prevents users from launching screen recorders, word processors, e-mail applications, and any other unrelated application that may be used to compromise the security of test items” (p. 154). AUTOMATED AND INTERNET TESTING In a survey conducted a decade ago, more than 15% of respondents indicated that they provided psychological and neuropsychological testing through some electronic format (VandenBos & Williams, 2000). Although many of the issues we discuss in this chapter are applicable to the Internet, the increasingly widespread use of both the Internet and automated testing generally persuade us that a separate section covering ethical issues is warranted. There are undoubtedly myriad benefits to computerized testing. As Naglieri et al. (2004) cataloged, among other positives, testing via the Internet permits rapid communication of findings to test takers, researchers, and the public. It is less expensive than paper-and-pencil testing, provides faster results with greater accuracy, presents test stimuli more uniformly, permits faster revisions, broadens access to evaluations in rural areas, is more scalable, and is especially well suited to computerized adaptive testing. But as Naglieri et al. asserted, “Ethical issues abound for psychologists who use the Internet in their practice” (p. 156). We confine our discussion to ethical issues related to computerized administration in a clinical context. (For a broader discussion, e.g., availability of tests designed for personal development, see Naglieri et al., 2004.) A bedrock issue is, of course, competence (see, e.g., Standard 2.01 of the APA Ethics Code). It is not enough to be trained to administer traditional psychological tests. An administrator of computerized tests should be familiar with the literature relating to the use of computer technology in clinical practice, informed about the appropriate means to administer, score, and interpret computerized tests, and have a reasonable degree of knowledge about computer operation (Schulenberg & Yutrzenka, 2004). As the Test Standards indicates, “Those who use psychological tests should confine their testing . . . to their areas of competence, as demonstrated

through education, supervised training, experience, and appropriate credentialing” (AERA et al., 1999, p. 131). One subject requiring test user competence is equivalence. In many cases, developers of paperand-pencil tests have simply placed the test on the computer. But as Mead and Drasgow (1993) and Naglieri et al. (2004) pointed out, very little research has been conducted on the equivalence of testing on the Internet with more traditional forms. Standard 9.02 (Use of Assessments) of the Ethics Code requires psychologists to use tests that are appropriate in light of research on their usefulness and to only use instruments whose validity and reliability have been established. Test Standard 6.11 requires that manuals of tests that can be administered by more than one method should “clearly document the extent to which scores arising from these methods are interchangeable” (AERA et al., 1999, p. 70). Thus, “computerized tests must be empirically validated to determine their level of equivalence to their traditional counterparts, indicating that they produce basically the same results” (Schulenberg & Yutrzenka, 2004, p. 482; see also Butcher, 1987; Butcher, Perry, & Atlis, 2000; Epstein, Klinkenberg, Wiley, & McKinley, 2001; Schulenberg & Yutrzenka, 1999). Over the past 15 years, several researchers have examined the degree of equivalence between traditional and computer-based or Internet-based versions of the same tests, with varying results. For example, Maddux and Johnson (1998) found a high degree of equivalence between traditional and computer versions of the same test. Butcher et al. (2000), on the other hand, concluded that the equivalence of computerized and paper-and pencil versions of the same test varied considerably, “with the most promising results in the area of personality assessment” (p. 9). Snyder (2000) was more pessimistic, concluding that equivalence research on personality tests produced mixed results. Outside of personality assessment, he found established equivalence to be “weak or nonexistent” (p. 53). It is clear that as additional tests become computerized, research on equivalence becomes essential. As Schulenberg and Yutrzenka (2004) warned, “Computerization may alter a psychological 55

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test to the point that it may not be measuring the same construct as its traditional counterpart” (p. 482). Another major concern is the use of computergenerated reports. There are ethical demands on both test developers and test users. From the developers’ perspective, Test Standard 5.11 (AERA et al., 1999) states: “When computer-prepared interpretations of test response protocols are reported, the sources, rationale, and empirical basis for these interpretations should be available, and their limitations should be described” (p. 65). This mandate is echoed in Ethics Code Standard 9.09(a): “Psychologists who offer assessment or scoring services to other professionals accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use” (APA, 2010, p. 12). From the test users’ perspective, we cannot stress enough the importance of knowing the bases for computer-prepared interpretations. Many reports of this type are based on expert judgment developed in a vacuum. “Neither the individual’s unique characteristics, nor combinations of information from different sources are incorporated in generating these” interpretations (Michaels, 2006, pp. 53–54). No program can consider all the unique attributes of each individual and in most cases the same programmed decision rules will be applied to all test scores. For example, computerized reports do not take into account the context of the evaluation or, necessarily, the demographic characteristics or the employment and medical history of the individual evaluated. A review by Butcher et al. (2000) concluded that as many as 50% of interpretive statements do not apply to a specific client. As Ethics Code Standard 9.02(b) reminds examiners, they should “use assessment instruments whose validity and reliability have been established for use with members of the population tested” (APA, 2010, p. 12, emphasis added). Standard 9.06 (Interpreting Assessment Results) is more explicit: When interpreting assessment results, including automated interpretations, psychologists take into account . . . testtaking abilities, and other character-istics 56

of the person being assessed, such as situational, personal, linguistic,and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. (APA, 2010, p. 12). In essence, “it falls to the clinician to ensure that the computerized interpretation is an accurate reflection of the respondent being assessed, and not just a series of interpretations put forth in a software package by a testing company” (Schulenberg & Yutrzenka, 2004, p. 480; see also Butcher, 2003). Otherwise, the use of computerized reports is risky (Snyder, 2000). It is the responsibility of the test users to “evaluate the quality of the [computergenerated] interpretations” (Test Standard 12.15, AERA et al., 1999, p. 134). The Test Standards and the Ethics Code clearly indicate that test users are ultimately responsible for their test interpretations, no matter from what format the data are derived. Assessing the validity of interpretations requires that a human being observe the testing situation and decide if conditions are present that could invalidate test results. It is imperative that the final act of decisionmaking be that of a qualified practitioner consistent with state law, ethical principles, and professional standards, who takes responsibility for overseeing the process of testing and judging the applicability of the interpretative report for individual examinees. This mandate has been codified in Ethics Code Standard 9.09(c) (Test Scoring and Interpretation Services): “Psychologists retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services” (APA, 2010, p. 12). There must be the interposition of human judgment between the computerized report and decision making to ensure that evaluative statements are made with full sensitivity to all the nuances of test administration and the unique constellations of attributes in each person tested. Relying solely on test developers’ computerized conception of the test taker’s responses, isolated from a clinician’s trained observation of the test, may tend to create bland, impersonal, and nonspecific assessments that fail to

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capture the test taker’s cognitive, affective, and behavioral functioning across a variety of situations (Bersoff & Hofer, 1991; Butcher, 2003; Garb, 2000). In short, “Automated, narrative reports are not a substitute for sound professional judgment” (AERA et al., 1999, p. 118, Comment to Test Standard 11.21). Nor is it appropriate to offer unedited computer reports as one own’s writing (see National Association of School Psychologists, 2000). As the Task Force on Psychological Testing on the Internet (Naglieri et al., 2004) recognized, “Psychological test data reveal very personal details about human characteristics, behaviors, preferences, and capabilities” (p. 158). Thus, it is the responsibility of test users to ensure test taker privacy by protecting the security of computer-generated materials (Butcher, 2003). To some extent, this can be achieved by adopting encryption technology designed to scramble data so that only appropriate senders and receivers can read the data (Naglieri et al., 2004). In any event, the Ethics Code requires that psychologists who offer testing “via electronic transmission inform clients/patients of the risks to privacy and limits of confidentiality” (Standard 4.02(c), Discussing the Limits of Confidentiality, APA, 2010, p. 7). INFORMED CONSENT One of the bedrock ethical principles is autonomy— respecting the right of individuals to do as they choose as long as their choices do not restrict or limit the rights of others (Beauchamp & Childress, 2001; Bersoff & Koeppl, 1993; Knapp & VandeCreek, 2004; Ross, 1930/1998). Or as a teenager talking to her parents in a New Yorker cartoon put it, “All I ask is a chance to ruin my life in my own way” (Smaller, 2004). Whether the self-determinative decisions are constructive or destructive, truly autonomous decisions depend on the application of informed consent. The criteria of legally sufficient informed consent can vary in terminology but they consist of three consensual principles: (a) The decision must be made knowledgeably, (b) it must be made voluntarily, and (c) it must be made by a person recognized as having the legal capacity to make the decision. The concern about informed consent was generated by two separate historical developments. First,

there was worldwide revulsion in response to the highly unethical and involuntary medical research conducted by Nazi Germany from 1933 to 1945. One result was the creation of the Nuremberg Code, an outgrowth of the trials in the city that gave the Code its name. Within its 10 principles, the Code established three fundamental ideas—competence or capacity to consent; comprehension of what one is agreeing to; and the freedom to consent, decline, or withdraw (National Institutes of Health, n.d.). But questionably ethical research was not restricted to Germany. There was the notorious Tuskegee syphilis study where in 1972 the American public was finally told that for 40 years under the leadership, direction, and guidance of the U.S. Public Health Service there had been a continuing study of the effects of untreated syphilis in approximately 400 black males in Alabama, although there was no evidence that consent for participation had ever been obtained, nor were the subjects ever informed that during this period that penicillin had been discovered as a cure (Shamoo & Resnik, 2003). Ethical concerns were raised in social science studies as well, including the famous Milgram obedience studies (Milgram, 1963) and the Stanford Prison Experiment (Zimbardo, 2007). For a more complete rendition, see Bersoff (2008) and Katz (1972). These developments led to the intervention of the federal government and the establishment of the National Commission for the Protection of Human Subjects in Biomedical and Behavioral Research. The Commission promulgated the Belmont Report (1979), creating strict regulations surrounding informed consent and the establishment of institutional review boards that oversee the informed consent process for almost all research. Formal rules for obtaining informed consent are now codified in the Code of Federal Regulations (Basic HHS Policy for Protection of Human Research Subjects, 2010). (More information about these issues can be found in Chapter 16 of this volume.) The second historical line concerns consent for medical treatment. Prior to the 1960s, if physicians obtained consent to treatment, they were insulated from liability. Adequate information was not a necessary component of binding consent. But beginning with such cases as Natanson v. Kline (1960) and 57

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Mitchell v. Robinson (1960) the law of consent changed. A physician had to disclose sufficient and significant facts about the intended procedure to make consent meaningful and binding. Perhaps the most influential case is Canterbury v. Spence (1972). There, a federal appeals court reinforced the idea that the patient’s right to self-determination required the physician to disclose certain information prior to engaging in the proposed procedure. “The test for determining whether a particular peril must be divulged is its materiality to the patient’s decision” (pp. 786–787). Thus, not every conceivable risk must be divulged. A risk is material “when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy” (p. 787). (More information on informed consent can be found in Volume 1, Chapter 12, this handbook.) Testing and assessment typically have different purposes than research studies or medical procedures. But the philosophical underpinnings for obtaining informed consent in testing are the same—respect for a person’s dignity, autonomy, and self-determination. The APA Ethics Code contains two relevant provisions regarding informed consent to testing. The first provision, Standard 3.10, Informed Consent, is generic: (a) When psychologists . . . provide assessment . . . in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual . . . using language that is reasonably understandable to that person . . . except when conducting such activities without consent is mandated by law or governmental regulations or as otherwise provided in this Ethics Code. (APA, 2010, p. 6) Standard 9.03, Informed Consent in Assessments, delineates specific requirements for informed consent to assessments: (a) psychologists obtain informed consent for assessments, evaluations, or 58

diagnostic services . . . except when (1) testing is mandated by law or governmental regulations; (2) informed consent is implied because testing is conducted as a routine educational, institutional, or organizational activity (e.g., when participants voluntarily agree to assessment when applying for a job); or (3) one purpose of the testing is to evaluate decisional capacity. Informed consent includes an explanation of the nature and purpose of the assessment, fees, involvement of third parties, and limits of confidentiality and sufficient opportunity for the client/patient to ask questions and receive answers. (APA, 2010, p. 12) Standard 9.03(b) indicates that even if testing is legally mandated psychologists must inform test takers “about the nature and purpose of the proposed assessment services, using language that is reasonably understandable to the person being assessed” (APA, 2010, p. 12). Similarly, even if test takers are legally incapable of giving informed consent, both Standards 3.10 (Informed Consent) and 9.03 require psychologists to inform them of the reasons for testing and to seek their assent. Standard 8.4 of the Test Standards echo these requirements. There are two groups of potential test takers for whom capacity to consent is an issue—children and cognitively impaired adults. Although there are some statutorily defined exceptions, children are generally presumed to be incapable of giving legally sufficient consent. Parents are authorized to consent for their minor children (see, e.g., the statute and regulations regarding the Individuals With Disabilities in Education Improvement Act). Despite the fact that there is a rich body of research indicating that older adolescents (e.g., ages 15 to 18) have the same decisional capacity as adults (see, e.g., Fundudis, 2003; Gustafson & McNamara, 1987), the law generally does not recognize the right of minors to consent. Thus, to stay within legal and ethical bounds, it is recommended that psychologists obtain the consent of a legally authorized person, for example, a custodial parent, before evaluating a minor child.

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As noted, Standard 3.10(b) of the Ethics Code does require the psychologist to “seek” the child’s assent. It is unclear, however, whether assent is required (but see Schachter, Kleinman, & Harvey, 2005). Seeking assent and obtaining it are two different matters. Apparently, the code leaves it up to the discretion of the clinician to determine whether to undertake an evaluation if the child dissents. Similarly, Standard 3.10(b) requires the psychologist to consider the child’s “preferences” but does not mandate that the preferences be honored. The clinician may believe that testing is in the child’s “best interests” and disregard the child’s preference to dissent. Unlike children, who are presumed incapable to consent, adults are presumed competent. Nevertheless, this presumption may be rebutted if the adult is seriously cognitively impaired, either through mental retardation, stroke, dementia, or psychosis. Psychologists, however, cannot unilaterally decide that an adult test taker lacks the capacity to consent. Given the preference for self-determination, only a judicial body can declare an adult incompetent to consent and appoint a proxy decision maker. The APA’s Presidential Task Force on the Assessment of Age-Consistent Memory Decline and Dementia, however, has issued useful guidelines (adopted by the APA’s governing body) for evaluating cognitive impairment (APA, 1998). As with other areas of functioning, the guidelines recommend that psychologists who propose to perform evaluations for dementia and age-related cognitive decline are competent and knowledgeable about the topic. Beyond competence in performing neuropsychological assessments, they suggest education, training, or experience in such topics as gerontology and psychopathology in older adults. Procedurally, the guidelines recommend that evaluators conduct clinical interviews, including the client’s self-report and subjective impressions regarding changes in cognitive functioning, take a careful history regarding the onset and nature of the course of the cognitive difficulties as well as premorbid abilities, and most importantly, use standardized, reliable tests that are valid for older populations. The guidelines provide a compendium of useful assessment instruments. Most relevant, the guidelines urge psychologists to obtain informed consent. They should “attempt,

when possible, to educate patients regarding the nature of their services, financial arrangements, potential risks inherent in their services, and limits of confidentiality” (APA, 1998, p. 1299). If the psychologist determines that the patient is unable to understand what is to take place, i.e., seems unable to give informed consent, the psychologist should halt the evaluation and seek the appointment of a proxy decision maker, unless the evaluation is mandated by law and may be conducted without consent. Assuming the client/patient is found incompetent to consent to the evaluation, there are two possible means for obtaining consent from a proxy decision maker. The most prevalent means is for the proxy decision maker, like a legal guardian, to act in what the guardian believes is in the best interests of the cognitively impaired adult. The decision may not be what the incompetent adult would want but the decision maker believes the evaluation will be beneficial, thus invoking the prima facie principle of beneficence. There is an alternative, however, that comports more readily with the principle of autonomy. The best interest analysis is eschewed in favor of what is called the “substituted judgment” test. This approach is exemplified by the following: In utilizing the doctrine of substituted judgment, this court seeks to maintain the integrity of the incompetent person by giving the individual a forum in which his or her rights may be exercised. The court dons “the mantle of the incompetent” and substitutes itself as nearly as possible for the individual in the decision making process. In utilizing the doctrine the court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent. (Matter of Moe, 1982, p. 720) Apparently, the APA Ethics Code does not require informed consent if the purpose of testing is to evaluate decisional capacity (see Standard 9.03(a)) but we would recommend that the clinician seek to determine whether the adult wants to proceed with the evaluation after being informed of its nature, purposes, and consequences. 59

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Of course, as the code recognizes, there are times when an evaluation may proceed without the consent of the test takers. This is particularly true when an evaluation is ordered by the court. For example, in a hotly contested divorce where custody is in dispute, the court may mandate that the family undergo a custodial evaluation by a courtappointed psychologist. Or, if a criminal defendant pleads not guilty by reason of insanity, the court may order the defendant to undergo an evaluation by the prosecution’s psychological and/or psychiatric expert. Although consent is not required, the Ethics Code does mandate that, at the least, the party or parties ordered to participate in the evaluation be informed of the nature of the anticipated services and any limits to confidentiality (Standard 3.10(c)). The requirement for fully informing the potential examinee about testing begs the question of how this information should be presented. Standard 3.10(d) requires psychologists to “appropriately document written or oral consent, permission, and assent” (APA, 2010, p. 6). The code, of necessity, does not provide guidance as how to present the criteria for obtaining informed consent beyond that it be communicated in “language that is reasonably understandable to” the person being evaluated (Standard 3.10(a), p. 6). Despite the psychologist’s best efforts, a participant’s ability to comprehend the consent form remains a key concern. In general, researchers who have studied how people comprehend the consent process have not found promising results. A meta-analysis by Cohn and Larson (2007) found that many individuals are unable to recite successfully the purposes and facts of a proposed assessment, even when researchers have explained it to them in both oral and written form. One common suggestion is to ask the potential examinee questions about the procedure sprinkled throughout the presentation and to ask the individuals to explain the proposed assessment in their own words. These techniques may not guarantee full understanding but help bolster it. Another ethical concern is the readability of consent forms. Psychologists may believe they are describing the assessment procedure in language that is comprehensible but it may be too complicated for the average test taker. In one study analyzing the 60

readability of sample consent forms provided on medical school websites, the researchers found the forms to be written on average at the 10.6 grade level, despite the requirement that they be written at about the sixth or seventh grade level (Paasche-Orlow, Taylor, & Brancati, 2003). FROM INFORMED CONSENT TO COLLABORATIVE ASSESSMENT As we have discussed, informed consent is, in many cases, both a legal and ethical requirement. Collaborative assessment may not be legally required but it enhances the validity of psychologist’s findings as depicted in the report of the psychological evaluation. It promotes enhanced ethicality and heightens trust in the evaluator. As Michaels (2006) correctly asserted, “Psychological evaluations contain some of the most intimate and influential information one can obtain about another person” (p. 50). As such, it is imperative that it be true to the person evaluated. Collaborative assessment, as we will describe, aims to guarantee that will happen. More than 30 years ago, Fischer (1978) described traditional psychological assessment: It has been the clinician’s responsibility to establish rapport, administer and score tests, analyze the results, draw conclusions, and write a report. If the psychologist is the one to discuss the assessment with the client, he interprets those portions of the report for which he thinks the person is ready. (p. 41) Nothing much has changed in the past 3 decades. The current Ethics Code simply requires that “psychologists take reasonable steps to ensure that explanations of results are given to the individual” (APA, 2010, p. 12; with several exceptions, e.g., security screenings, forensic and preemployment evaluations). This “feedback is still unilateral” (Fischer, 2004, p. 14) in that the psychologist tells the examinee what he or she has found from the perspective of the psychologist. In a series of papers, Fischer and her colleagues described a process that goes beyond sharing results and seeks to present a truer and more accurate portrait of the examinee.

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They stressed the point that collaborative assessment, in contrast to more traditional assessment, recognizes that the professional’s interpretations are no more real, valid, or influential within the client’s life than are the client’s (Fischer, 1978). Fischer has variously defined collaborative assessment, but the following is perhaps the most representative: Collaborative, individualized assessment is an approach to psychological assessment in which the assessor and the client work together (co-labor!) to develop productive understandings of this individual client. Collaboration is a means of individualizing the assessment—its process, resulting suggestions, and written accounts. In this approach, life events are regarded as primary data, and test scores, categories, and related research are regarded as secondary data, derived from life. (Fischer, 2000, p. 2) In essence, “the client and the assessor work together to revise and refine the assessor’s initial impressions that were formed in light of the interview, test data, and referral issues” (Fischer, Georgievska, & Melczak, 2004, p. 586). The tester and the client become “co-evaluators” (Fischer, 1970). Valid interpretations of test behavior rest on at least two fundamental principles. First, test responses are a function, not only of the characteristics of the person to whom the test is administered, but also of the stimulus properties of the test and the background or environments (e.g., instructions, setting, tester characteristics) in which the test is administered (Fiske, 1967; Hamilton, 1970; Sattler & Theye, 1967). For example, suppose a client is referred because there is a concern the client is depressed. Many psychologists who use the Thematic Apperception Test inappropriately select cards to administer that have a stimulus pull for depression (e.g., cards 3BH, 17GF, 15, 20). When the client then relates very sad stories, the psychologist concludes that the referral concern is accurate. But that conclusion is likely to be inaccurate. Most normal nondepressed people will tell sad stories to stimuli that evoke sadness. It would have

been more accurate to use cards that are neutral or positive. If the client then tells sad stories, it is more likely that the diagnosis of depression is confirmed. Similarly, neither is the tester a blank slate. Tester characteristics such as gender, race, age, and ethnicity may influence how an examinee responds to the evaluation. It is important for the psychologist to explore with the client during the course of the evaluation how the client responds to the psychologist. The second principle is that each person perceives the testing situation differently and thus develops an idiosyncratic style or strategy in responding to test material. Without discerning these strategies, the validity of test interpretation is highly attenuated (Bersoff & Grieger, 1971; Fulkerson, 1965; Tillman, Bersoff, & Dolly, 1976). For example, Donald N. Bersoff, the senior author of this chapter, served as a clinical psychologist in Southeast Asia during the Vietnam War. One of his responsibilities was to evaluate Air Force personnel to determine whether they should be returned to duty in Vietnam or be evacuated to the United States. He noticed two distinct response styles between pilots (officers) and airmen (enlisted personnel). The officers produced what he called the “pilot’s Rorschach.” In taking this projective test as well as other evaluation instruments, the officers gave few, popular, and constricted responses and generally “faked good.” Enlisted men, on the other hand, gave numerous florid, idiosyncratic, and disorganized responses and generally “faked bad.” Without knowing the perspective of the test taker, one could have concluded that the pilots were all relatively normal and the airmen psychotic. But that would have led to incorrect diagnoses for the most part. Once the author investigated what the perspective of these respective groups of test takers were, the more valid the conclusions he could draw. The pilots all wanted to continue flying. They loved combat and the combat pay (not to mention the sunglasses and the orange jumpsuits) that went with it. Their motivation was to appear normal and stay on flight duty. The enlisted men all wanted to return to the United States and leave the danger of the combat zone. Thus, their motivation was to 61

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appear mentally ill. (Note the resemblance to Joseph Heller’s “Catch-22”; we will leave it to the reader to determine who was truly mentally intact.) Understanding and applying these two principles allows psychologists to include clients in all aspects of the evaluation. In fact, it makes it imperative that they do so if testers want to obtain data that are not obfuscated by mistrust, misunderstanding, and the inhibition of self-disclosure. Because we have not included clients in the assessment transaction, it is possible that most of our test data and their subsequent interpretation may be of doubtful veracity. As Jourard (1971) conjectured, “The millions of psychometric tests mildewing in agency files might be lies told by untrusting clients and patients to untrustworthy functionaries” (p. 2). If psychologists are to achieve intimate, ethical relationships consonant with the empirical data concerning the interactive nature of test productions, it may be necessary to reconceive of the assessment process as one in which there is mutual disclosure. Following Fischer and others, the following steps are consonant with collaborative assessment (Bersoff, 1973; Fischer, 1970, 1973, 1994, 2000). The first step is to contextualize the evaluation. This requires the psychologist to have an interchange with the referring agent, beyond the referral question. The psychologist asks for examples of events and conduct that led to the request for an evaluation. The idea is to go beyond abstractions (e.g., test for IQ; determine eligibility for special education) and to understand the behaviors that led to the concern. It may also be helpful to observe the potential test taker in his or her natural environment, particularly the environment that led to the referrer’s concern. This allows the psychologist to derive some information about the stimuli that may be evoking the problematic behavior in the real world. Without observation in the natural environment, the tendency is to place the onus for pathology solely on the test taker. The second step can be labeled coadvisement. This concept is an expansion of the principle of informed consent. The psychologist tells the test taker how he or she functions and informs the test taker of the identity of the referral agent and the 62

purpose for referral. It is important here to be truthful about this. For example, in the mistaken idea that evaluators should establish rapport and make children comfortable, psychologists may tell them, “We are going to play some games.” If the children believe that to be the case and do not take the evaluation seriously, they may end up with a diagnosis of hyperactivity. The psychologist should also describe the nature of the assessment devices that will be used, what kind of information will be put in a report, and who might eventually read the report. Most important, the psychologist must discern how the test taker perceives the purposes of testing and what he or she believes the consequences of the evaluation might be. If the test taker is mistaken about these, the psychologist needs to correct the misimpressions. After satisfying the other requisites of Standard 9.03 of the APA Ethics Code (Informed Consent in Assessments), the psychologist then secures agreement to proceed with the assessment subsequent to full and mutual disclosure concerning the purposes of the evaluation. The third step can be called sharing impressions. Immediately after the administration of the psychometric instruments, the psychologist and the client engage in a dialogue in which the psychologist gives his or her interpretations of the client’s test behavior as the psychologist has just experienced it. The idea is to attempt to extrapolate from the testing situation to other situations similar to the one represented by the test stimuli. Such a dialogue provides instant feedback to the test taker about how others perceive his or her behavior and allows the assessor to check out hypotheses about how equivalent the test behavior observed is to actual behavior in the client’s real world. It also gives the client a chance to disagree with the psychologist’s initial interpretations and to offer his or her perceptions about his or her own behavior. For example, assume a teacher refers a child for an evaluation because the teacher observes that although the child has done well in the beginning of the school year, her behavior has become sloppy and disorganized as the year progresses. During the Block Design subtest on the WISC, the psychologist notices that the student does the first couple of designs neatly but as she goes further

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along the designs are performed haphazardly. The psychologist now shares his impressions and says, I noticed that when you were working with the blocks you started out neatly but as you went along, they weren’t put together too well, sort of sloppy. Your teacher is concerned about you and has noticed the same things seem to happen during the school year—you start off well and then become disorganized. Is that what is happening here? The student could agree and see the test as making a valid connection between it and usual world behavior. But, in this actual scenario, the student said, “No, I hurried because I had to go to the bathroom!” Thus, rather than assuming that the behavior observed in the testing situation can be extrapolated to all other situations, the psychologist has the opportunity to discover the situations or contexts in which the behavior does occur. Such an approach, whether called psychosituational (Bersoff & Grieger, 1971) or contextual (Fischer, 1973) assessment, prevents clients from being mislabeled and interpretations of their behavior from being overgeneralized. This process is also compatible with Test Standard 11.15 (AERA et al., 1999): “Test users should be alert to potential misinterpretations of test scores and to possible unintended consequences of test use; users should take steps to minimize or avoid foreseeable misinterpretations and unintended negative consequences” (p. 116). The fourth step involves a critique of the written evaluation. After the evaluation is complete and the psychologist has prepared his or her report, the psychologist shows the client a copy of the written evaluation. This is consonant with Ethics Code Standard 9.10, Explaining Assessment Results, requiring psychologists, with noted exceptions, to “take reasonable steps to ensure that explanations of results are given to the individual” (APA, 2010, p. 12) and with Test Standard 12.20 also requiring the sharing of results and interpretations with test takers. But this last step of collaborative assessment goes beyond the mere sharing of results as the psychologist has perceived them. The client is shown the actual, or near final draft of the report, heightening the probability

that it will be written in language that is understandable to the client. As Fischer (1970) has noted, This procedure also produces a beneficial side effect. Knowing that his client is going to read his report, the psychologist strives all the more to be true to him, to capture his world as well as words allow, and to avoid overstatements, unintended implications, and loose descriptions. (p. 74) The client is then given the opportunity to clarify points made or to add further material. With the advent of word processing, the psychologist can easily modify the contents of the report based on information gleaned from the client. At times, based on this information, the contents can be reframed in ways that are accurate and more sensitively phrased. If there is disagreement between the psychologist and the client, the client can provide a dissenting view in a separate addendum or even in the body of the report. This sharing of impressions after testing and in the report allows the psychologist’s interpretations: to be corrected, affirmed, revised, and expanded. In this process the assessor learns and uses the client’s language, collects life examples of test data, and explores with the client the circumstances under which these examples occurred and the circumstances in which they did not occur (when-nots; Fischer & Finn, 2008, p. 381) Obviously, “collaborative reports typically are longer than other reports, but they also typically are more concrete and useful” (Fischer et al., 2004, p. 591). Admittedly, the approach may require more time and may be impractical in some settings. Nevertheless, it treats clients as equals with the right to participate in the interpretations and decisions that will affect their lives (see Fischer & Brodsky, 1978). Certainly, the chances of damaging diagnoses and serious misinterpretations are lessened. And those diagnoses that are made will have been a “co-constituted” decision, agreed upon by those affected and increasing the probability of greater cooperation in making the changes that all have deemed appropriate. In fact, in comparing the differential effects of collaborative versus traditional assessment just before clients enter therapy with the assessor, researchers 63

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(Ackerman, Hilsenroth, Baity, & Blagys, 2000) “found that clients who receive a collaborative assessment were less likely to terminate before their first formal therapy session” (Fischer & Finn, 2008, p. 383). Collaborative assessment seems to enhance clients’ positive therapeutic alliance to their therapists (e.g., Cromer & Hilsenroth, 2006; Hilsenroth, Peters, & Ackerman, 2004; Weil & Hilsenroth, 2006). EXTERNAL CONSEQUENCES We have already acknowledged that psychological assessment can yield intimate information, requiring psychologists to act with due concern for the accuracy of the process, the accuracy of results, and the privacy of the individual. As we also asserted early in this chapter, for many test takers assessment can have a profound impact on their lives. As serious as the effects may be on an individual, there can even be far more reaching effects. The results of an assessment, particularly in the case of standardized testing, may affect not only the individual but entire groups. The kind of assessment that has these far-reaching consequences is labeled high stakes testing. The Test Standards defines a high stakes test as one “used to provide results that have important, direct consequences for examinees, programs, or institutions involved in the testing” (AERA et al., 1999, p. 176). There are several forms of high stakes testing in which psychologists are actively involved. Some examples include testing of candidates for organ transplantation, bariatric surgery, or transgender surgery. More commonly, psychologists administer tests to screen future police and correctional officers or members of other professions who will carry weapons. In addition, some religious denominations require psychological testing as a condition for entering the seminary or prior to ordination and when it is suspected that current clergy are not able to perform their functions adequately because of mental illness or pedophilia. We discuss in detail two major areas in which high stakes testing occurs: (a) standardized testing to assess student learning (e.g., No Child Left Behind) and/or to predict future academic success 64

(e.g., Graduate Record Examination) and (b) forensic mental health evaluations—for example, child custody, competency to be executed. Obviously, the results of both these kinds of high stakes tests have serious consequences. Thus, in conducting these assessments, it is imperative that psychologists consider the possible tangible and ethical outcomes that may result for both the individual and society. The late Sam Messick (1980) argued that there are two essential questions that exist in high stakes testing. First, is the test a valid measure for the purpose for which it is used? Second, should the test be used for the proposed purpose in the proposed way? The first question can be answered by examining the psychometric properties of the test, specifically its construct validity. The second question, however, requires a broader ethical analysis—determining the social consequences of using this test (see, generally, Test Standards Section 7: Fairness in Testing and Test Use). Researchers have come to varying conclusions about the effectiveness of high stakes tests in terms of accuracy of prediction. There are at least five critical threats to the validity of high stakes testing: “Construct under-representation arising from poorly conceptualized or inadequately operationalized constructs, faulty logic of the causal inference regarding test scores, negative consequences of test score interpretations and uses, lack of reproducibility of test scores, and CIV [construct-irrelevant variance]” (Haladyna & Downing, 2004, p. 18). Because of these numerous threats to validity, caution has been urged when using high stakes tests (Haladyna & Downing, 2004; Sackett, Borneman, & Connelly, 2008). Standardized assessment can be defined as “largescale, externally developed and mandated, uniformly administered and scored evaluation of student learning” (Wang, Beckett, & Brown, 2006, p. 307). There are many examples of high stakes standardized tests, some of which are assuredly familiar to readers, for example, the Scholastic Aptitude Test (SAT), Graduate Record Examination (GRE), American College Test (ACT), Law School Aptitude Test (LSAT) and the tests associated with the No Child Left Behind Act of 2001 (Wang et al., 2006). An initial question regarding standardized educational tests relates to construct validity, that is,

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whether the test actually measures what it claims to be measuring. For example, one meta-analysis showed that the Graduate Management Assessment Test (GMAT) successfully predicted 1st-year grades and overall graduate performance (Kuncel, Crede, & Thomas, 2007). Similarly, scores on the SAT and the LSAT predicted 1st-year grades in college and law school, respectively (Smith & Garrison, 2005). But what these kinds of research outcomes do not yield is information about how well the test takers will fare after graduation—in their real world profession. Beyond validity, there are other issues to consider when psychologists draw conclusions about individuals and groups based on test results. For example, gaps in performance may emerge based on gender. There is some research that shows females do worse on standardized tests when they believe they are under a stereotype threat, that is, when a member of a group is faced with the possibility of being judged in a way that verifies a stereotyped characteristic of that group (Nguyen & Ryan, 2008). Similarly, a performance gap remains between African American and Caucasian students. The latter often outperform their African American peers on cognitive-based measures (Ryan, 2001), an outcome that also may result from stereotype threat (Kellow & Jones, 2008; Nguyen & Ryan, 2008). In addition, certain groups may be susceptible to self-fulfilling prophecies and thus produce below par results (Jussim, Eccles, & Madon, 1996). These, and other factors, influence performance beyond any speculation regarding genetic differences. That is why the Ethics Code (Standard 9.06, Interpreting Test Results) reminds psychologists, “When interpreting assessment results . . . take into account . . . various test factors, test-taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations” (APA, 2010, p. 12). The Test Standards contain at least three relevant principles that pertain to both test developers and test users: Standard 7.1. When credible research reports that test scores differ in meaning across examinee subgroups for the type

of test in question, then to the extent feasible, the same forms of validity evidence collected for the examinee population as a whole should also be collected for each relevant subgroup. Subgroups may be found to differ with respect to appropriateness of test content, internal structure of test responses, the relation of test scores to other variables, or the response processes employed by individual examinees. Any such findings should receive due consideration in the interpretation and use of scores as well as in subsequent test revisions. (AERA et al., 1999, p. 80) Standard 7.3. When credible research reports that differential item functioning exists across age, gender, racial/ethnic, cultural, disability, and/or linguistic groups in the population of test takers in the content domain measured by the tests, test developers should conduct appropriate studies when feasible. Such research should seek to detect and eliminate aspects of test design, content, and format that might bias test scores for particular groups. (AERA et al., 1999, p. 81) Standard 7.10. When the use of a test results in outcomes that affect the life chances or educational opportunities of examinees, evidence of mean test scores differences between relevant subgroups of examinees should, where feasible, be examined for subgroups for which credible research reports mean differences for similar tests. . . . While initially the responsibility of the test developer, the test user bears responsibility for uses with groups other than those specified by the developer. (AERA et al., 1999, p. 83) As the definition implies, there are societal, as well as individual, consequences to high stakes testing. The best current example may be the use of standardized tests required by the No Child Left Behind Act of 2001 (Improving the Academic Achievement of the Disadvantaged, 2006). If students at a particular school perform poorly on 65

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these tests, the federal government can reduce funding for that school, resulting in staff and faculty reductions and more limited resources, all of which may have the unintended effect of limiting educational opportunities for all students in that school. The act also may influence how and what the instructor teaches. Research suggests that some teachers teach to the test and use more of their classroom time to cover topics they believe will be presented on the standardized test (Phelps, 2009). An explication and summary of the principles we have described above are contained in Appropriate Use of High-Stakes Testing in Our Nation’s Schools (APA, 2001). Although it acknowledges that testing is an extremely valuable part of educational assessment, its cautions that any consequential decision about a student’s education should not be based on the results of a single test. And, it asserts, it is only fair to use test results in high-stakes decisions when students have had a real opportunity to master the materials on which the test is based. Finally, it leaves open the question whether, based on continual research, high stakes achievement testing will enhance or diminish broad-based learning. Forensic assessment has the potential to affect a test taker’s life at least as profoundly as standardized educational tests. In many instances, it may truly be a matter of life or death. Several different organizations have adopted standards and ethical guidelines intended to guide the research and practice of those psychologists involved in forensic evaluations. Beyond the ethics code, the Committee on Ethical Guidelines for Forensic Psychologists has produced Specialty Guidelines for Forensic Psychologists (CEGFP, 1991) that have been adopted by Division 41 (American Psychology–Law Society) of the APA and the American Academy of Forensic Psychology. (These guidelines are currently undergoing revision and will be submitted for approval to the APA’s legislative body, the Council of Representatives, to be adopted as APA policy.) (More information about these guidelines can be found in Chapter 6 of this volume.) We briefly discuss four areas of high stakes testing in the forensic arena: child custody evaluations, competency to stand trial, the evaluation of criminal defendants as potentially eligible for the death penalty, and competency to be executed. 66

Child custody evaluations are not the norm because most parents agree on custodial arrangements (Melton, Petrila, Poythress, & Slobogin, 2007). When they are necessary, however, they are often controversial. As a result, child custody evaluations are not only high stakes for the family concerned but for the psychologist as well. Traditionally, ethics charges regarding child custody evaluations are among the most common complaints against psychologists (see, e.g., APA, 2009). Nevertheless, courts almost always rely on expert testimony in hotly contested custody cases in deciding what is “in the best interests of the child,” making it imperative that those intrepid psychologists who venture into this field conduct competent and comprehensive evaluations. The Specialty Guidelines for Forensic Psychologists (CEGFP, 1991) and the Guidelines for Child Custody Evaluations in Family Law Proceedings (2009), both of which implement the APA Ethics Code, are two excellent sources for guidance. They require psychologists to use multiple sources of information in reaching their conclusions. Some of the sources psychologists could use for this purpose include interviews with all parties concerned, observation of parent–child interactions, record reviews, interviews with collateral sources, and psychological testing, particularly validated instruments specifically designed for evaluating custody. Child custody is a civil matter. Competency to stand trial occurs only in the criminal context. Defendants in criminal cases cannot be tried unless they are competent to do so. The capacity of the defendant to stand trial is so important that it is a constitutional requirement. As the Supreme Court has said on many occasions, the right of an incompetent defendant to avoid trial is “fundamental to an adversary system of justice” (e.g., Drope v. Missouri, 1975, p. 162). Defendants who are not mentally competent cannot help their lawyers rebut the state’s case or discover helpful evidence. The constitutional requirement of trial competency is considered rudimentary because on it depend such rights as the effective assistance of counsel; to summon, to confront, and cross-examine witnesses; and to testify on one’s own behalf or remain silent. Not only does competency vindicate individual rights but

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society’s interests as well. “Even a proceeding that produces an accurate guilty verdict would be repugnant to our moral sense if the convicted individual were unaware of what was happening or why” (Melton et al., 2007, p. 127). In Dusky v. United States (1960), the Supreme Court set out a definition of competency to stand trial that is now followed in all federal and state courts. The Court stated that “the test must be whether [the defendant] has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him” (p. 402). This statement has come to mean that the defendant, to be considered competent to stand trial, must have the capacity to understand the criminal process (e.g., appreciate the charges against him or her; know who the judge, the prosecutor, and defense attorney are) and have the ability to function within that process, primarily through consulting with counsel in preparing a defense. In shorthand, this has come to be known as the “understand and assist” test. The judge, prosecutor, or the defense attorney can raise the issue of the defendant’s competence. Once raised, the judge may order a psychiatric and/ or psychological evaluation. If the defendant is found competent, the trial can proceed. If not, the defendant can be hospitalized and treated to determine whether the defendant can be restored to competency. The defendant can only be hospitalized for a reasonable period of time (Jackson v. Indiana, 1972). If successfully restored to competency, the defendant can then be tried. If the attempts to restore competency fail after a reasonable period of time, the charges must be dropped and/or the defendant can be involuntarily committed if eligible under applicable state laws. Consequently, there are high stakes when forensic psychologists conduct competency evaluations and aid the court in making the competency determination. Fortunately, there are resources to help guide clinicians to conduct psychometrically sound evaluations (see, e.g., Grisso, 2003). Another area of great societal interest is the determination of whether a defendant who has committed first degree murder should be executed. Thirtyseven states make first degree murderers eligible for

the death penalty (but see Bersoff, 2004). In many states, a major criterion is that the defendant poses a continuing threat of violence. In Texas, there was a notorious psychiatrist, James Grigson, who routinely testified in death penalty cases for the prosecution that he could determine with 100% certainty that the defendant would engage in future violent acts, even in a maximum security prison. He was eventually expelled from the American Psychiatric Association for arriving at this determination without first examining the defendant and for testifying about his unerring predictive capacity (Shuman & Greenberg, 1998). Recently, a federal appellate judge asserted that “the scientific community virtually unanimously agrees that psychiatric testimony on future dangerousness is, to put it bluntly, unreliable and unscientific” (Flores v. Johnson, 2000, p. 46). A number of psychologists have challenged this assertion and offered suggestions for offering ethical and valid predictions of future violence (see, e.g, Grisso & Applebaum, 1992; Heilbrun, Marczyk, & DeMatteo, 2002; Tolman & Mullendore, 2003; Tolman & Rotzien, 2007). It is imperative that psychologists act with scrupulous ethicality and methodological accuracy because “no other consultation . . . has greater life-or-death implications than capital sentencing evaluations” (Cunningham & Reidy, 2001, p. 473). A second area concerning the death penalty in which psychologists are surely involved is in the assessment of mental retardation. In 2002, the Supreme Court held that it is unconstitutional to execute murderers who are mentally retarded (Atkins v. Virginia, 2002). The Court stated that persons with mental retardation, although they frequently know the difference between right and wrong (and therefore are not legally insane) and are competent to stand trial, by definition . . . have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. . . . They often act on impulse rather than pursuant to a pre67

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meditated plan, and . . . in group settings they are followers rather than leaders. (p. 318; but see Bersoff, 2002) Thus, the two jurisprudential justifications for the death penalty—retribution and deterrence—are inapplicable to such persons. The Supreme Court left it to the States to define mental retardation in this context. Only six states have adopted some form of the criteria developed by the American Association on Intellectual and Developmental Disabilities (formerly the American Association of Mental Retardation). These criteria include the following: (a) subaverage intellectual functioning (usually IQ below 70); (b) limitations in two or more adaptive skill areas (e.g., communication, social skills, self-care); and (c) the manifestation of mental retardation before the age of 18 (Luckasson et al., 2002). Four states use the criteria developed by the American Psychiatric Association (2000), and one state has adopted those developed by the APA (Jacobson & Mulick, 1996). Thus, fewer than half of the death penalty states (11 of 37) have adopted accepted clinical criteria. The rest use their own idiosyncratic definitions (DeMatteo, Marczyk, & Pich, 2007). To act ethically in evaluating defendants who claim to be mentally retarded, it is essential that psychologists understand these criteria, are competent to evaluate both IQ and adaptive behavior, comprehend the impact of the Flynn effect (discussed earlier in this chapter), scour school and other early records to glean proof that the cognitive deficit occurred before the age of majority, and are comfortable testifying in court. A final high stakes area in forensic psychology is the evaluation of a death row inmate’s eligibility for the death penalty. A defendant may be found competent to stand trial, may know the difference between right and wrong at the time of the crime, and may be found guilty of first degree murder and yet become exempt from the death penalty. That is because the Supreme Court has held that it is unconstitutional to carry out the sentence of death upon a prisoner who is “insane” at the time of the pending execution (Ford v. Wainwright, 1986). The Court offered several rationales for its 68

decision, including that executing someone who was unaware of the punishment they are about to suffer and why they are about to suffer it would offend humanity and serve no retributive function. But as a later case held (Panetti v. Quarterman, 2007), it is not enough that the prisoner can identify the stated reason for the execution. The prisoner must have a “rational understanding of it” (p. 959). This is still a rather vague substantive standard that can lead to evaluations that are influenced by personal viewpoints concerning the application of the death penalty (Ackerson, Brodsky, & Zapf, 2005; Brodsky, 1990). Despite the highly consequential outcome of the evaluation, the Court disagreed on what procedures should be used to determine competency to be executed. Justice Powell’s concurring opinion became controlling. He said that the State may presume the defendant is sane and thus place a substantial burden on the defendant to trigger any sort of hearing. And the decision need not be made by a judge in court: Unlike issues of historical fact, the question of petitioner’s sanity calls for a basically subjective judgment. . . . The competency determination depends substantially on expert analysis in a discipline fraught with “subtleties and nuances.” This combination of factors means that ordinary adversarial procedures—complete with live testimony cross-examination, and oral argument by counsel—are not necessarily the best means of arriving at sound consistent judgments to a defendant’s sanity. (Ford v. Wainwright, 1986, p. 426) All that is required is that the State provide an “impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including psychiatric evidence that may differ from the State’s own psychiatric examination” (Ford v. Wainwright, 1986, p. 427). Panetti makes clear that only if the defendant is clearly suffering from a psychotic disorder that puts “an awareness of a link between a crime and its punishment in a context so far removed from reality that punishment can serve no proper purpose” (p. 960) will the defendant be

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spared execution (and only until her or she is no longer psychotic). CONCLUSION In this chapter we have addressed the following issues: test construction, test user qualifications, test security, automated and Internet testing, informed consent, collaborative assessment, and the external consequences of high stakes testing. As each section illustrates, assessment requires sensitivity and sophistication about the ethical issues involved. Fortunately, the APA Ethics Code, the Test Standards, and other policy documents and guidelines developed by APA’s constituent bodies provide relatively helpful guidance in developing tests, administering tests, interpreting tests, and reporting the results of tests in an ethical manner. We hope this chapter will contribute to treating those we evaluate in a more thoughtful and ethically appropriate way.

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CHAPTER 5

THE HEALTH CARE SETTING: IMPLICATIONS FOR ETHICAL PSYCHOLOGY PRACTICE Stephanie L. Hanson and Thomas R. Kerkhoff

A dramatic increase in the number of psychologists employed by medical schools and hospitals occurred in the second half of the 20th century as the interrelationships between physical health and behavior became empirically tested and the biopsychosocial model of health and illness took root. This movement was heightened by technological advances directly affecting the survival rate of individuals sustaining physical trauma and the accompanying rise of rehabilitation facilities to address the acute and more longterm needs of individuals with acquired disability. In addition, legislative and regulatory changes were opening doors previous closed to psychologists. Examples include the landmark U.S. Supreme Court decision in California Association of Psychology Providers v. Peter Rank (CAPP v. Rank, 1990) to support medical staff participation for psychologists, essentially broadening access to hospital practice, the gradual inclusion of psychological services as billable events under Medicare Part B, and the inclusion of health and behavior codes in the Current Procedural Terminology manual (American Psychological Association [APA], Practice Organization, Government Relations Staff, 2009). There have also been significant efforts to protect gains made, such as the continuing fight for full implementation of the CAPP decision and the successful advocacy efforts to include rehabilitation psychology along with neuropsychology in the 2010 Inpatient Rehabilitation Facilities Prospective Payment System by the Centers for Medicare and Medicaid Services (final ruling released July 31, 2009). As psychologists have become more fully integrated into health care settings, particularly clinical

health psychology, clinical neuropsychology, and rehabilitation psychology, there has been increased recognition of the complexities of ethically sound practice with patients and families. In this chapter, we discuss ethical issues as these occur in the context of psychology practice in the health care environment. We use examples from clinical health psychology and rehabilitation psychology as a backdrop for these discussions given their rise in prominence in the last two decades (which includes the establishment of fully affiliated American Board of Professional Psychology [ABPP] specialties in 1993 and 1997, respectively). We use the term health care practice to broadly refer to inpatient and outpatient acute care and rehabilitation settings in which individuals present with physical health issues rather than settings in which mental health issues are the primary admission concerns. Competence to practice, relationships among different health care providers, confidentiality, and informed consent all create unique considerations in attempting to uphold the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) within health care settings. Each of these areas are addressed in this chapter. Although we cite APA ethical standards throughout the chapter, it is important to recognize that these standards represent minimal requirements for ethical practice. Ethical behavior is far more than adherence to a set of practice standards; it reflects our moral compass and is affected by the beliefs, values, and aspirational goals we hold for ourselves. Our moral compass, especially regarding our

DOI: 10.1037/13272-005 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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responsibility toward others (e.g., promoting others’ health and welfare and preventing negative health consequences) is critical to aspiring to be a highly ethical health professional. It is this moral compass that guides how we choose to navigate the challenges we face within the complex health care system and, ultimately, the decisions we implement. COMPETENCE TO PRACTICE IN HEALTH CARE Competence to practice is the bedrock of clinical service delivery and is fundamental to upholding the ethical principles of beneficence and nonmaleficence. Competence defines the skills the psychologist possesses to facilitate good (improve health, maximize independence), whereas lack of competence creates risk of significant harm. Two critical components included within the general ethical standard of competence (Ethical Standard 2.01, Boundaries of Competence) are that (a) the psychologist provides services only within the boundaries of his or her competence and, thus, must be aware of these boundaries; and (b) if the psychologist lacks competence, it is an individual responsibility to engage in appropriate continuing education to become competent to practice. In the next section, we will examine each of these two components. (More information on competence can be found in Volume 1, Chapter 6, this handbook.) Psychology practice in health care requires a unique set of clinical skills. More than 20 years ago, APA recognized that psychologists must acquire specific knowledge to navigate the health care environment. In 1985, the APA Committee on Professional Practice of the Board of Professional Affairs published A Hospital Practice Primer for Psychologists. Its intent was to familiarize psychologists with their roles and responsibilities, necessary training components, and the operations of the hospital environment. This was followed in 1988 by Hospital Practice: Advocacy Issues (APA, Committee on Professional Practice of the Board of Professional Affairs, 1988) and, in 1991, with the adoption of guidelines for reviewing credentials of psychologists desiring to work in hospitals (APA, Board of Professional 76

Affairs, Task Force on Hospital Privileges, 1991). These developments were paralleled in the 1990s by expanded discussions regarding the types of training clinical health psychologists, clinical neuropsychologists, and rehabilitation psychologists should acquire to practice in medical settings (see, e.g., Johnstone & Farmer, 1997; Wegener, 1996). Each of these documents supports the recognition of scope of practice issues and specific skills above and beyond the doctorate to ensure competence to practice. There also has been significant momentum around the skills clinical health psychologists and rehabilitation psychologists should possess to practice at an advanced level, which are reflected in their respective postdoctoral training standards and the competencies required to successfully pass their respective ABPP exams (Belar & Jeffrey, 1995; Patterson & Hanson, 1995). However, psychologists are not required to become board certified, and board certification is not all encompassing. Therefore, it is the psychologist’s unique application of the ethical standards that illuminates boundaries of competence for scope of practice. On the basis of our own health care experience and the commentary of others (such as the psychologists and groups cited), we believe several competency components apply across health care settings for successful entry into the health care practice environment. Assuming general practice skills have been acquired (e.g., assessment, intervention, selfreflection), the following is a comprehensive, although nonexhaustive, list of general knowledge areas and skills necessary for minimal competence. 1. Understand the health care environment in which one practices—structure of referral and practice generation (e.g., need for hospital privileges, outpatient referral systems), organizational policies and procedures (e.g., hospital bylaws affecting practice), federal and state laws and regulations governing practice (e.g., legal definition of informed consent, legal order for surrogacy authority, definitions and rights of vulnerable populations, limits of confidentiality, rules governing privacy), use of electronic media (e.g., health records), and types and length of documentation used.

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2. Recognize the influence of the practice environment on patient care—being sensitive to patient’s loss of privacy and disruption of routine, quickly adapting to interrupted assessment and treatments, recognizing the health care setting as an independent variable affecting patient outcome (e.g., cohesiveness, predictability, or stress of the system), recognizing and minimizing potential for medical errors, and understanding psychology’s roles in patient advocacy and managing patient routines. 3. Work with diverse individuals and groups— health care providers with different ethics codes; patients and families from diverse ethnic and cultural backgrounds affecting health beliefs, values, and behavior; and internal and external administrative personnel with different priorities and foci potentially affecting practice decisions (e.g., hospital administrators, attorneys, case managers, disability resource personnel). 4. Enhance consultation skills—operations and communication (to whom, in what level of detail, via what mechanism), and steps in developing effective interprofessional relationships. 5. Recognize interdisciplinary team dynamics and communication and develop team-based skills— understanding other disciplines’ philosophy of care, unique and complementary versus shared expertise; skills in shared goal setting and coordinated assessment, intervention, discharge planning, and advocacy. 6. Develop a working knowledge of the diseases and disabilities typically encountered—understanding the natural course of disease or injury and expected changes over time as interventions are implemented, and distinguishing symptoms of psychopathology from symptoms directly related to changes in physical health status. 7. Understand the interrelationships of biological, emotional, behavioral, social, and spiritual factors affecting health—understanding factors influencing adherence to assessment and treatment plans within the specific practice setting, and applying the biopsychosocial model within the practice setting. 8. Have a working knowledge of commonly used medications—understanding their effects on

9.

10.

11.

12. 13.

14.

cognition, emotions, behavior, and physical status and risk factors and potential for abuse of both legal and illegal drugs, as well as effective use of placebos (e.g., for conversion disorder, malingering, etc.). Understand family structure and dynamics in the context of major health changes or crisis— caregiver roles and stress, ability to work with multiple family members, and ability to translate the language of the health care environment into meaningful dialogue for patients and families of different backgrounds. Have a working knowledge of health care financing—billing practices, negotiating managed care contract coverage, Medicaid coverage, and applicable current procedural terminology codes. Learn to conduct brief assessments and formulate and implement short-term interventions, often with limited data—appropriate use of both standardized and nonstandardized assessment, including understanding issues of test selection, administration, and interpretation as these intersect with evolving patient recovery and with diverse populations. Have an ability to critically evaluate and integrate health care literature into practice. Ensure appropriate assignment of psychology graduate students, interns, postdoctoral fellows, as well as trainees from other disciplines. Stay abreast of current developments and commit to actively expand expertise rather than avoid practice issues that challenge competency limits.

As part of the continuing discussion regarding competence development, APA Division 38 proposed competencies for graduate training that would define entry-level practice (France et al., 2008). This work is a by-product of the broader competency movement within the psychology field in which the focus has shifted from quantitative measures (e.g., supervised clinical hours; license exam scores) of competence toward defining how we know when a psychologist is competent to practice. The backbone for this discussion is the cube model, a multidimensional schematic that defines core competencies as 77

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foundational (i.e., attitudes, values, knowledge, and skills) and functional (i.e., major functions such as assessment, intervention, and consultation) within a developmental framework (Rodolfa et al., 2005). The 2007 Assessment of Competency Benchmarks Work Group, organized by the APA Board of Educational Affairs, used the cube model as the basis for defining benchmarks that established minimal competencies for entry-level psychology practice. APA published a series of articles, partly based on the work group’s efforts, in Training and Education in Professional Psychology (APA, 2009). This series included a description of essential components of the seven foundational and eight functional competencies, provided a detailed toolkit for creating and implementing competency assessment at different stages of training, and offered critical analyses of pertinent challenges. Examples of foundational competencies created by clinical health psychology include understanding ethical and legal issues applied within a health care system and being aware of the importance of patient–provider relationships. Functional competencies included assessment, intervention, consultation, research, supervision and training, and management and administration. An example of an applied skill within management, for example, is to evaluate the efficiency and effectiveness of clinical services. (See France et al., 2008, and Masters, France, & Thorn, 2009, for a detailed list of suggested skills within each competence category and best training practices to achieve the competencies.) Although leaders within rehabilitation psychology also have defined foundational and functional competencies, their efforts have focused at the postdoctoral level, consistent with ABPP requirements and the evolution of rehabilitation psychology as a specialty. For rehabilitation psychologists, consumer protection is a key addition to the functional competency list used by clinical health psychology. (See Hibbard & Cox, 2010, for a comprehensive list of essential components.) RETRAINING TO ACHIEVE BASELINE COMPETENCE The competencies were set forth, in part, as a starting point for critically evaluating and refining psychology training programs (e.g., internships, 78

postdoctoral programs). As psychology has extended beyond a mental health profession to a health profession, these skills also apply to seasoned professionals who plan to expand their practice from mental health to the broader health care environment, as well as to psychologists already in health care practice who are shifting settings or populations (e.g., from cancer unit to transplant team, from outpatient women’s health to inpatient consultation–liaison service, from stroke unit to orthopedic unit, from acute care to primary care). The second component of competence requires these individuals to obtain the appropriate knowledge and skills to expand into areas for which they have not previously prepared. Belar et al. (2001) argued that to ethically expand one’s practice, the psychologist must accurately assess current expertise and use boundaries of competence to systematically design a set of retooling experiences that lay a “pathway to competent practice” (p. 137). They offered a series of questions for self-analysis regarding readiness to deliver services: “Do I have the knowledge of the biological bases of health and disease as related to this problem? Do I understand the health policy issues related to this problem?” (Belar et al., 2001, p. 137). They also provided an excellent example of its application using the diagnostic area of cancer. Although perhaps overly narrow in scope (i.e., focusing on individual diagnoses when many psychologists have broad service responsibilities), this questionnaire is a good starting point to gain an individual understanding of required continuing education and easily could be broadened for setting shifts or changes to diagnostic groups with whom one is expected to work. They also provided reading resources for interested psychologists. The rehabilitation psychology website and listserv are equally rich with recommended resources for those seeking additional information. There are, in fact, a plethora of resources for psychologists expanding practice into health care settings. Belar et al. (2001) provided suggestions for retraining, and we present a modified list: ■

Approach retraining systematically, as outlined by Belar et al. (2001).

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■

■

■

■

■

■

Solicit local psychology expertise to create opportunities for supervised practice and mentorship; establish objective performance criteria with the mentor to define mastery of required competencies (e.g., types of cases, content areas). Do not rule out other disciplines—a hallmark of health care practice is interdisciplinary team work; consult with interdisciplinary colleagues to gain their perspective on (a) psychology’s contributions, (b) their contributions, and (c) challenges with patient populations of interest; and shadow other health care providers, if feasible. Take advantage of both formal and informal activities to network with colleagues and gain perspective on practice areas of interest—join an APA division, participate in division-specific conferences and continuing education workshops, use divisional or state listservs to gain sense of scope of contemporary practice concerns and as a resource for information regarding practice questions, contact divisional officers to discuss relevant issues, consider acquiring specialty certificates (e.g., substance abuse), and talk with leaders and participants of local support groups and agencies and participate in community events related to practice areas. Consult APA and divisional websites to understand policy issues affecting practice and to create a professional reading list; excellent general texts for rehabilitation psychology and clinical health psychology, respectively, are the Handbook of Rehabilitation Psychology (Frank, Rosenthal, & Caplan, 2010) and the Handbook of Clinical Health Psychology series edited by Boll (2004). Review state laws regarding basic practice issues, such as informed consent, especially order of surrogacy, disclosure laws, definitions of vulnerable populations, rights of minors, end-of-life care, and so on. Create a concrete plan to obtain appropriate board certification, preparation for which requires directed and focused learning in specific practice areas.

Perhaps the most salient point regarding competence is that the skills required to practice in health

care are evolving just as the psychology field as a whole is evolving. Competence to practice is necessarily a lifelong process. The pace of discovery and application of technology in health care is accelerating and so, too, must the acquisition of knowledge be an ongoing commitment. Similarly, health care financing seems in constant flux, requiring the psychologist to stay abreast of changes affecting reimbursement and potentially a patient’s interest in receipt of specific services. Lack of competence can place both the individual and the field of psychology at risk of harm. Therefore, acquiring and maintaining appropriate skills is fundamental to ethical practice. TEAM FUNCTION The primary causes of morbidity and mortality in the United States have shifted from infectious disease to chronic disease and disability. As a consequence, disease management is no longer linked solely to surgical or other medical intervention but rather to a broader palette of care elements within the biopsychosocial framework (Frank, Hagglund, & Farmer, 2004; Meier, 2006). This shift in the types of services needed, including varied discipline expertise and the complexity of health care operations, has given rise to both multidisciplinary (multiple disciplines setting individual goals and delivering care independently) and interdisciplinary teams (collective goal setting and coordinated assessment, treatment, and discharge planning). In fact, the specialty of rehabilitation psychology is defined by interdisciplinary care. Psychologists may join teams with as few as one or two other members, such as in a small primary care practice; 10 or more members, such as teams characterizing inpatient rehabilitation; or 80 to 100 members as part of a large multispecialty practice. For example, Hough (2008) indicated that comprehensive management of the psychosocial and medical health needs of someone with a spinal cord injury involves an interdisciplinary team of 18 members, including the patient and family. Similarly, Giordano and Schatman (2008) indicated that comprehensive chronic pain management requires a “multi-focal health care paradigm” involving multidisciplinary care despite reimbursement challenges (p. 775). 79

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Team-Building Skills Team-based care essentially characterizes modern health care delivery and is reinforced by prominent health care organizations and accrediting bodies, including the Joint Commission on Accreditation of Healthcare Organizations, the Commission for the Accreditation of Rehabilitation Facilities, and the Institute of Medicine, which espouse the importance of effective interprofessional communication and functional teams. As Goodheart has noted, collaboration with other professionals is one of the “four dominant forces that will drive the future of psychology practice” (cited in Martin, 2009). Therefore, even with the technical skills necessary to function competently as an individual provider, the psychologist practicing in health care must develop and sustain effective working relationships with a variety of disciplines and work collaboratively to facilitate positive change by the patient and family. These skills are implicit in Ethical Standard 3.09, Cooperation With Other Professionals. Establishing a cooperative relationship with other disciplines is necessary in the health care environment to effectively serve the patient and family. Indeed, research into team structure and process has suggested that coordinated care and team cohesion directly affected outcome in varied settings, from acute surgical services to rehabilitation (Strasser et al., 2005; Young et al., 1998). For example, in their survey research of 46 Veteran’s Hospital stroke teams, Strasser et al. (2005) found that patients’ motor gains correlated with specific team variables, including good organizational structure, use of feedback to improve treatment processes, and less dependence on task orientation. They speculated that lower task orientation suggests that successful teams are less focused on discipline-specific activities and are more sensitive to the importance of team-based intervention. Therefore, psychologists must be cognizant of the types of skills that characterize the nature of team development in health care. The literature provides many examples of skills important in developing appropriate team relationships in specific settings, ranging from primary care to palliative care (Frank et al., 2010; Gatchel & Oordt, 2003; Robinson & Baker, 2006; Simon & Folen, 2001; Tovian, 2006). On the basis of this literature and our own clinical experience, we provide 80

a list of suggestions below that we believe are applicable to the psychologist’s development of successful team skills, regardless of practice setting. 1. Get to know the other team members; locate offices together in the same area, if possible. 2. Be clear on the purpose of the team and your role within it; learn both negotiation and conflict resolution skills. 3. Identify your unique, value-added contributions to the team (e.g., specialized cognitive assessment, adherence strategies, identifying the relationship between depression and medical diagnosis, family intervention) and ensure these are identifiable by other team members. 4. If in a leadership role, be hands on—define common goals, acknowledge commitment of individual team members, assess team’s performance, and be visible. 5. Communicate concisely—health care can be fast paced, and providers do not necessarily take the time to read or discuss issues at length. 6. Develop a common language with the rest of the team and clearly identify and understand the communication channels (e.g., most effective way to deliver information, format and process of team meetings). 7. Use your knowledge of the intricacies of team communication patterns to paint an accurate picture of the team communication process for the patient and family. This will hasten development of the “patient as partner” role so important for optimizing the impact of team intervention. 8. Provide services in the context of the patient’s performance environment (taking into account limits of confidentiality)—for example, cognitive– behavioral interventions commonly occur with other disciplines in shared treatment space (not in the psychologist’s office). 9. Develop tolerance for service disruption, such as from routine environmental tasks, intercurrent patient needs, or other team members seeking information or time with the patient; be prepared to make last-minute adjustments to assessment and treatment plans given patients’ needs and environmental demands can sometimes change quickly.

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10. Be willing to flex your schedule in recognition of the fact that health care does not operate only between 8:00 a.m. and 5:00 p.m. 11. Seek board certification; this is a credential physicians resonate with that can contribute to collegial respect. 12. Acknowledge your strengths and limits, learn to ethically respond to team pressure that would require you to exceed your competency limits, and develop training plans to expand relevant competencies. These recommendations for skill development interface with the Ethics Code in a number of ways. First and foremost, they embody the General Principle of Fidelity and Responsibility, which includes the concepts of (a) building trusting professional relationships, (b) clarifying roles, and (c) dealing with conflicts that otherwise could lead to patient harm. To build a trusting relationship, the psychologist must become visible and available to patients, family members, and colleagues. In primary care, in particular, office proximity with the family practitioner or other provider (e.g., pediatrician, internist, nurse practitioner) may be critical to fully realized practice integration. Even in rehabilitation, where team interactions are common, specific providers have reported that physical proximity facilitates collaboration, likely because it increases the opportunity for both formal and informal consultation (Wertheimer et al., 2008). The importance of informal communication among different providers has been supported in research in other health care settings, such as palliative care and emergency care (Reddy & Spence, 2008). In acute care and rehabilitation settings, being accessible means spending time out of one’s office and on the main treatment floor to observe and interact with other team members. Tovian (2006) indicated that he observed cardiac transplant and bariatric surgeries when he collaborated in tertiary care. This provided him insight into the patient’s experience and facilitated his team relationships. Establishing regular team meetings is also viewed as an important component of collaboration because these provide the opportunity to discuss assessment, treatment, and follow-up (Wertheimer et al., 2008).

Research has suggested that teams can function effectively within any organizational culture and that it is the internal components of the team itself that influence patient outcome (Smits, Falconer, Herrin, Bowen, & Strasser, 2003; Strasser et al., 2005). The psychologist’s successful integration on the team (i.e., collaborator and contributor) is a core component of competent health care practice. However, the psychologist must understand not only the skills it takes to function as an effective team member but also the systems variables that can affect whether the team as a whole is successful (Porter-O’Grady, Alexander, Blaylock, Minkara, & Surel, 2006). In the past decade, there has been increased empirical work on what characterizes a good team. In general, characteristics of a good team include effective communication, flexibility, common language, clear common goals, cohesiveness, conflict management, collective ownership of outcome, team sense of accomplishment, and team evaluation (Heinemann & Zeiss, 2002; Selle, Salamon, Boarman, & Sauer, 2008). Cook and Hoas (2008), in addressing the challenges of ethical practice in rural health care, stated that system-level intervention is required to support ethical behavior and positive teamwork. Although not specific to psychology, there is growing evidence that clinical training regarding team function directly affects patient outcome (Strasser et al., 2008). Heinemann and Zeiss (2002) provided extensive commentary on team structure, process, and assessment related to psychology practice in health care. Developing an appropriate understanding and immersing oneself in the team environment aligns the psychologist with appropriate ethical practice.

Role Definition Role definition is a core element of this overall team alignment and is central to sound ethical decision making. In this instance, the purpose of role definition is not to clarify boundaries but instead is intended to delineate points of interaction within the team social matrix. Because of the wide range of disciplines potentially interfacing with the patient and family, the psychologist should neither assume that the patient or other providers know why or what the psychologist will contribute (several Human Relations Ethical 81

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Standards are relevant here, including Standards 3.07, 3.09, 3.10, and 3.11). Fronek (2008) has suggested that family conferences can be a source of conflict when different providers’ expectations are unclear. Sander, Raymer, Wertheimer, and Paul (2009) assessed what neuropsychologists and speech-language pathologists (SLPs) perceived as each other’s roles in rehabilitation. Although there were many areas of agreement, there were also striking differences. For example, only 44% of neuropsychologists believed SLPs assessed arithmetic, whereas 79% of SLPs reported doing so. Similarly, 20% of neuropsychologists believed SLPs assessed visuospatial skills, whereas 53% of SLPs perceived this assessment area as part of their role. Conversely, only 51% of SLPs reported that neuropsychologists assessed auditory comprehension, whereas 83% of neuropsychologists reported doing so. Even worse, 35% and 4% of SLPs, respectively, believed neuropsychologists assessed reading and writing and dysarthria, compared with 85% and 91% of neuropsychologists, respectively, who reported these roles. There were similar discrepancies in specific treatment areas (e.g., orientation, attention, organization, and reasoning) with the direction being that the majority of neuropsychologists perceived themselves as providing treatment and SLPs did not perceive neuropsychologists as doing so. The survey results also suggested that there are overlapping areas that present the opportunity for more efficient assessment and intervention, which is particularly relevant in times of fiscal constraint. Sander et al. (2009) suggested other potential benefits of evaluating this overlap, including protecting the use of assessment tools and reducing confusion when discussing assessment results. In fact, an unintended consequence of not engaging in coordinated assessment and treatment planning can be role conflict. A team member’s ability to influence other team members is likely to be related, at least in part, to the perceived contributions one makes to that team (Smits et al., 2003). If the psychologist’s contributions are seen as redundant, his or her intrinsic value is limited and other team members may feel their professional identity threatened. As was seen in the Sander et al. (2009) study, psychologists must identify their unique contributions while simultaneously realizing the potential 82

ambiguity of roles where there are overlapping skill sets across disciplines. Psychologists who want to practice in health care need to be comfortable with some sense of shared identity but clearly communicate what unique role they play on the team. For an interdisciplinary team to function well, everyone must be clear on who is going to do what, collectively and individually. Psychologists clearly have many unique contributions to make considering the interwoven relationships among cognition, emotions, behavior, social support, and health. These contributions range from assisting with anxiety management during ventilation weaning; through offering strategies for delivering bad news or emotional support to stressed team members; to sorting cognitive, emotional, biological, and pharmacological issues in older adults with depressive symptoms poststroke. For example, Arnold (2008) offered an excellent commentary on the important role psychologists play in reducing inappropriate polypharmacy among older individuals, thereby contributing to reduced risk of harm, such as falls, negative mental status changes, and loss of independence. She highlighted the importance of the collaboration between the psychologist and those prescribing medications. Polypharmacy is common in inpatient settings with patients who have comorbidities, but it is an equally important issue in primary care, where the majority of psychopharmacological drugs are prescribed (Arnold, 2008). Consistent with the Guidelines for Psychological Practice With Older Adults (APA, 2004), psychologists must understand the complex factors contributing to or endangering a patient’s health. It is this comprehensive understanding of the interrelationships among these factors that clearly brings significant value to the multidisciplinary or interdisciplinary team in determining how to maximize patient and family outcome. It is this understanding that is the hallmark of clinical health psychology and rehabilitation psychology practice.

Communication Effectiveness— The Patient Chart Even with psychologists’ unique expertise, conflict still can occur related to how well or poorly

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psychologists communicate assessment and treatment results. Communication failures are essentially medical errors, sometimes created by the complex health care environment in which providers practice (Alvarez & Coiera, 2006). Team meetings and the informal exchanges previously discussed can go a long way toward maintaining positive communication based on perceived accessibility. In addition, sharing information reflects the cooperative spirit of Ethical Standard 3.09, Cooperation With Other Professionals. However, this spirit must be grounded with other ethical standards, particularly Privacy and Confidentiality (Ethical Standards 4.01–4.07). Psychologists have an ethical responsibility to disclose only the information necessary to serve the patient’s best interests. In addition to face-to-face disclosure, the health care environment relies heavily on the patient chart as a communication tool. Although an organization’s policies and procedures dictate how records are secured, it is critical for any psychologist practicing in health care to realize that medical records, particularly electronic health records, are easily accessed by a wide variety of health care professionals treating the patient, from radiologists to podiatrists, as well as the patient. The psychologist does not control these records, and the extended protections traditionally afforded mental health records do not apply to a hospital chart. Therefore, it is not uncommon for psychologists to keep an additional separate chart in which to record more sensitive or detailed notes, such as issues regarding mental health history that do not directly affect presenting concerns. Although these records still can be subpoenaed, they protect material not directly relevant to the current care issues from wide distribution. This is consistent with APA’s Record Keeping Guidelines—see Guideline 10 regarding organizations (APA, 2007). Robinson and Baker (2006) have suggested that psychologists focus their documentation in the general medical record on specific behavior and treatment. Similarly, Benefield, Ashkanazi, and Rozensky (2006) emphasized charting “immediately usable information” (p. 275) and argued that too much information, including frustrating jargon, can prove burdensome to other professionals. Certainly in health care practice, psychology notes that

are concisely written and focused, and that include concrete recommendations, not only serve the interests of the other team members but also are likely to facilitate future collaboration. Simon and Folen (2001), in describing the unique contributions of psychologists in chronic pain management, recommended following the BLUF principle—that is, “bottom line up front” (p. 126). Psychologists’ adherence to the standard set in Ethical Standard 3.09, Cooperation With Other Professionals, can be achieved only through appropriate disclosure and consultation while simultaneously avoiding harm (Ethical Standard 3.04, Avoiding Harm). Consistent with this practice, it is important to educate the patient on what is likely to be charted given that other professionals may ask the patient about material the psychologist has documented. Otherwise, the psychologist risks breaching the patient’s trust. Benefield et al. (2006) considered the patient record an opportunity for the psychologist to educate and build trust with both the patient and other professionals through its appropriate use as a communication tool. One final concern related to disclosure is important to note. Although already implicit in the Ethics Code, the Health Insurance Portability and Accountability Act (HIPAA, 1996) dictates that providers are responsible for ensuring that information being disclosed reaches its intended destination. This can be of particular concern to psychology consultants who are not part of the primary provider’s health care organization with whom a patient’s personal health information is being exchanged. Competent clinical practice necessitates controlled disclosure. Serious HIPAA violations also can result in significant sanctions, including civil and criminal liability. INFORMED CONSENT Appropriate disclosure and decision making in modern health care depends to a large extent on the consent the patient provides. As the medical model gives way to the biopsychosocial model and its accompanying focus on the treatment team, so too have traditional authoritarian approaches shifted toward more patient-centered care. The Federal Patient Self-Determination Act of 1990, the 83

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Consumer Bill of Rights and Responsibilities mandated by the Department of Health and Human Services Bureau of Primary Health Care, and HIPAA all are examples of regulations designed to empower patients to become central decision makers in their care (HIPAA, 1996; Public Health Service Act, 1998). Psychology as a profession has a long tradition of respect for patients’ autonomy. However, the practical realities of evolving health status in patients with complicated presentations, as well as the rights of minors and families, create ethical questions regarding what is adequate and reasonable informed consent, under what circumstances the patient has the right to receive care he or she demands (i.e., the right to self-determination), and what role the family plays in decision making. In addition, the sheer demands of the health care environment create common examples of paternalism, such as modifying treatment without the patient’s consent or assent, omitting specific information (e.g., regarding diagnosis or prognosis), or delaying provision of information regarding financial obligations until after treatment. Paternalistic decisions also can be a source of team conflict given that team members operate under the parameters of different ethics codes.

Informed Consent Components and Purpose To more clearly address consent issues, we first consider the construct of consent. Beauchamp and Childress (2009) put forth two basic conceptions of informed consent: autonomous authorization of a health care intervention or participation in research, and the social role of consent embodied in the legally or institutionally valid consent that is required before participation in a treatment or research project. Beauchamp and Childress (2009) further specified their autonomy-based process of informed consent via a multiple-element model (pp. 120–121). First, they presented threshold elements or preconditions—(a) competence (capacity to understand and decide) and (b) voluntariness (freedom from coercion in deciding). Next, they considered information elements—(a) disclosure (of material information), (b) recommendation (of a plan), and (c) understanding (of the disclosure 84

and recommendation). Finally, they described consent elements—(a) decision (in favor of a plan) and (b) authorization (of the chosen plan). Add to these the capacity-based requirements of the ability to communicate the decision and authorization and the ability to appreciate the significance of the information provided for one’s situation (Grisso & Appelbaum, 1998), and the fundamental constituents of informed consent are made explicit. (More information on informed consent can be found in Volume 1, Chapter 12, this handbook.) Although Beauchamp and Childress (2009) tied informed consent to the ethical principle of respect for autonomy, Manson and O’Neill (2007) recently challenged that assertion, claiming that current conceptions of autonomy are vague, variable, and difficult to tailor to requirements of informed consent. They counter that informed consent is best understood as prevention of deception and coercion. Likewise, the concept of shared decision making should not be applied wholesale to informed consent, as it represents an ideal of health care practice rather than the norm.

Acquiring Informed Consent It is certainly the case that acquiring true consent in the hospital environment, in particular, is challenging. Patients face varying levels of duress (health compromise, hospitalization, pain, debility, etc.) during which time the psychologist must efficiently build an adaptive relationship. Such relationships are embodied in the ethical values of honesty, integrity, compassion, and discernment. If the psychologist demonstrates these values in his or her interactions with the patient, the psychologist enhances the likelihood of developing the trust required for valid consent. Given the increasing distrust of the public for the health care system, these core ethical values take on even more importance in the process of providing well-informed, quality health care. Thus, the positions of Beauchamp and Childress (2009) and Manson and O’Neill (2007) are both relevant. Although fully developed consent may be challenging to acquire, consent should be viewed as a process not an event, and psychologists must represent their services honestly and compassionately to prevent the health care environment itself from becoming a coercive component of consent

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considerations, albeit unintentionally or indirectly. The situational context does matter. For example, Rodriguez-Osorio and Dominguez-Cherit (2008) have suggested that supportive ties with family members can be ruptured if the patient–family bond is not considered in critical care and patients feel pressured to make independent decisions. Soliciting adequate consent does not imply that the psychologist must provide exhaustive information. The psychologist must use clinical judgment within the interpersonal dynamic with the patient and family to decide what is sufficient disclosure considering the patient’s unique health circumstances. In other words, the psychologist always must balance the principle of beneficence with respect for autonomy, the outcome of which can directly influence whether the patient and family feel in control of their own health care and resulting health consequences.

Informed Consent in the Interdisciplinary Milieu We now consider the complexity of informed consent in the context of psychologist as treatment team member. The psychologist immersed in a treatment team faces a necessary multiple relationship— autonomous practitioner and team member (see Standard 3.05, Multiple Relationships). Any attempt to solicit informed consent for assessment and treatment must account for the impact of such services on the patient within the team service delivery environment. It is critical for patients and family members to be aware of the open communication network that lies at the heart of the treatment team process. Although confidentiality necessarily limits some communication content, team members rely on the psychologist to share clinically relevant data (e.g., test results, evaluative summaries, recommended cognitive– behavioral–emotional intervention strategies) to craft their individual treatment plans. Reciprocally, clinical data from other team members can give psychologists a wealth of information to weave into the psychological treatment plan. There is heuristic value in considering the team treatment milieu as a behavioral laboratory, in which individual clinical behavioral interventions occur and their outcomes can be evaluated either formally or informally—all the while maintaining the patient-centered treatment focus.

The social environment of a team treatment model demands that communication with patients and family members, and thus informed consent processes, include the concept of aggregating a wide variety of performance information, along with contextual information (patient history, preferences, social support system, etc.) into treatment and discharge plans with regular progress updates. This discussion lends itself to identifying the specific role the family will play in decision making and care rather than making assumptions about family dynamics or imposing the health care team’s values on the patient regarding family involvement. Ho (2008) has discussed the importance of providers refraining from making premature determinations of family relationships and understanding the value of the patient’s framework regarding family involvement in health care. Similarly, Kuther (2003) has discussed the complexities of minors making health care decisions, which necessitates family communication and consideration of what is developmentally appropriate (in addition to understanding state law).

Financial Informed Consent One final hurdle in soliciting adequate informed consent lies in the current funding mechanisms supporting service provision (Kerkhoff, Hanson, & Swaine, 2010). The fact that health care debt is now the leading cause of bankruptcy in the United States (National Coalition on Health Care, 2009) reminds us of the harsh financial reality facing anyone requiring major health care services and is an even greater disincentive for considering elective services. The complexities of the managed care model, including preauthorization and the vagueness of the medical necessity concept, and contractual contingencies within preferred provider organizations often conflict with social perceptions of implicit guarantees of rescue when in need. The unfortunate upshot of this system dysfunction is the added burden of incurring health-related debt in addition to the weighty considerations regarding risks and benefits of the recommended health care intervention. This begs a practical question for consumers: What constitutes full disclosure of financial responsibilities regarding psychological services provided? 85

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Although the relative costs of psychological services pale in comparison with hospitalization services, the level of insurance coverage for psychological services often is limited. Indeed, the copay burden for psychological services is sometimes proportionally higher than for more expensive medical services. It also remains to be seen what effect the passage of the Wellstone-Domenici Mental Health Parity Act of 2008 ultimately will have on psychology funding issues (APA, Practice Organization, Government Relations Staff, 2008). The Mental Health Parity Act of 1996 did not significantly address discipline-specific parity. Will psychologists be unable to sustain their health care enterprise because of increasing pro bono service delivery? Will consumers turn away from specialized psychological services because they simply cannot afford them? From the ethical perspective, costs are contractual consequences of service delivery and, therefore, are a required part of the disclosure process in informed consent. Indeed, psychologists employed in health delivery organizations may find that their relationship with that organization triggers conflict regarding financial disclosure as part of informed consent (Standard 1.03, Conflicts Between Ethics and Organizational Demands). This potential conflict most certainly would be realized if financial disclosure resulted in patients routinely deciding against psychological services. Proactively developing a mutually agreeable arrangement with an employer or contract agency for adequate communication of financial information to consumers marks the psychologist’s first step toward meeting the ethical expectation regarding financial informed consent. It also provides the opportunity to market psychology services to the organization given that it remains the responsibility of our profession to demonstrate the value of psychology services, including decreased disease burden resulting in reduced health care system costs (Tovian, 2004). MULTIPLE RELATIONSHIPS Multiple relationships in psychology practice are part of the complex health care environment in which services are delivered. The psychologist may function as assessor, therapist, treatment team member or 86

leader, and organizational consultant, as well as be affiliated with external organizations (such as university faculty member nested within a clinical service unit). The psychologist also may practice in small rural settings in which community contact is likely. Professional roles are layered within the practice setting, affecting informed consent, as well as the perceived clarity of professional responsibilities toward persons served. The perception of those roles played out in the clinical context of the provider–patient relationship affects the level of trust in those we serve. Important questions to pose regarding any clinical interaction include “In what role am I perceived by the patient and family in this situation, and how does that perception help to define the ongoing relationship?” and “How do I ensure the multiple roles I have do not compromise my therapeutic relationship with the patient and family?” Multiple relationships created by the broad scope of professional practice are not inherently unethical, as clarified in the Ethics Code (Standard 3.05). However, ethical practice requires ongoing monitoring of professional boundaries and communication to prevent ambiguous role changes and misunderstanding of expected responsibilities. Proactively managing role boundaries and specifying the terms of interaction among those multiple roles and relationships across multiple situations can prevent the blurring of professional and personal interests. (See Hanson & Kerkhoff, 2010, for a discussion of specific examples.) When professional boundaries are blurred, psychologists invite misinterpretation and increase the risk of potential conflicts of interest. Beauchamp and Childress (2009) defined conflict of interest as an individual’s interests “leading an impartial observer to question whether the individual’s professional actions or decisions are unduly influenced by considerations of significant personal interest” (p. 314). They further stated that the upshot of personal interests intruding into the clinical setting is the presentation of biases that may influence professional judgments or recommendations. The authors concluded by stating that high moral standards of probity and impartiality necessitate avoiding even the appearance of such conflicts. Indeed, the more complex the psychologist’s multiple roles

The Health Care Setting

and relationships, the more challenging boundary management becomes (see Standard 3.11, Psychological Services Delivered to or Through Organizations). These relationships can become even more complicated based on the contracts held among health care organizations affecting service delivery and those served. (For details regarding pertinent organizational ethics issues see Weber, 2001.) Clarification of professional interrelationships in the clinical setting and rectifying any potential misperceptions of such relationships by persons served are clearly required of the judicious practitioner. CONCLUSION We have endeavored to present an accurate representation of ethics issues relevant to psychology practice in health care. We purposely have used the concept of team-based practice as the modal working environment in modern inpatient and outpatient health care settings. The team treatment model requires that psychologists consider not just the one-to-one relationship between themselves and their patients, but the broader implications of the social milieu in which psychological services are rendered and the interrelationships required in such settings. Rather than adding unnecessary complexity to already challenging ethical practice demands, this multiperson focus parallels the social environment in which the patient and family might live. This environment is one in which the person served can assume an adaptive role, feel supported by team members when challenged, develop and practice problem-solving skills related to everyday routines, and ultimately succeed in objective performance goals they helped create. The psychologist’s ability to foster adaptive relationships among the myriad members of the social support system to the benefit of the patient and family is a critical skill regardless of setting. Ethical psychology practice in such a social environment demands developing pertinent competencies, maintaining adaptive relationships with colleagues, providing the necessary elements to acquire adequate informed consent that subsequently drives evaluation and treatment, and protecting confidential details while simultaneously

sharing information necessary for efficient and effective goal attainment. While psychologists potentially face ethics challenges as both individual practitioners and team members in health care practice, the Ethics Code provides guidance regarding appropriate decision making and behavior. In other work, we have applied the Ethics Code to a variety of clinical case examples spanning the health care spectrum to illustrate its utility (Hanson, Kerkhoff, & Bush, 2005). All too often we think of the Ethics Code as an instrument of constraint on professional behavior. On the contrary, we encourage psychologists practicing in the ever-changing field of health care to consider the Ethics Code as a guidepost for expanding professional competencies—a process of continual growth and mastery. In addition, while the health care practice environment has many ethical gray areas, it is an exciting arena in which to work. It affords the opportunity to develop both individually and collectively, ultimately serving the best interests of patients and families.

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CHAPTER 6

ETHICAL CHALLENGES IN FORENSIC PSYCHOLOGY PRACTICE Michael C. Gottlieb and Alicia Coleman

Forensic psychology is a relatively new specialty. Historians generally date its origins from 1908, when a Harvard professor, Hugo Munsterberg, suggested that psychology could play numerous helpful roles in the legal process regarding matters such as human memory, eyewitness identification, and false confessions (Munsterberg, 1908). To say the least, the legal community did not welcome this suggestion (e.g., Wigmore, 1904–1905) and psychological science played little role until 1954 when, in a pivotal civil rights decision by the U.S. Supreme Court (Brown v. Board of Education, 1954), results from psychological science were admitted as evidence. Since then, the field has burgeoned rapidly. In the 21st century, forensic psychology is a broad specialty that includes three general areas of professional endeavor: social policy, research, and practice. The purpose of this chapter is to focus on the unique ethical and risk management challenges faced by forensic psychologists. (For a general introduction to forensic psychology, see Melton, Petrila, Poythress, & Slobogin, 2007.) This practice niche is defined as all forms of professional psychological conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psycholegal issues, in direct assistance to courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial, and legislative agencies acting in an adjudicatory capacity. (Committee on Ethical Guidelines for Forensic Psychologists, 1991, 1I.B.1.b)

All members of the American Psychological Association (APA) are required to adhere to the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010), but forensic psychologists take on additional obligations not required, for example, of those who specialize in psychotherapy. It is those obligations that we discuss in detail in this chapter. First, we provide an overview of the legal system and the roles that forensic psychologists may play within it. Next, we address matters of competence, specific ethical issues, and the various areas in which forensic psychologists work. Finally, we address some legal issues that nonforensic practitioners are likely to confront during their careers. MAJOR ROLES WITHIN THE LEGAL SYSTEM The legal system can be confusing and intimidating to those unfamiliar with it. In this section, we briefly review the major roles that psychologists may play and discuss the place of forensic psychologists in the process. The legal system is designed to resolve disputes and seek justice. Most broadly defined, disputes fall into two categories. Criminal law involves the state or federal government moving against those accused of crimes who if convicted could lose their liberty, whereas civil law usually involves one party suing another for money damages. The specific legal procedures followed in these two areas of the law differ, but the roles various persons play are generally similar. For example, parties are those individuals by or

DOI: 10.1037/13272-006 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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against whom a lawsuit is brought (Black, 1991). In criminal matters, the state or federal government prosecutes defendants accused of crimes, whereas, in civil matters, plaintiffs who feel they have been wronged in some way sue defendants for damages. Independent of the specific type of the legal proceeding, parties generally have legal representation. In criminal matters, the district attorney or federal prosecutor represents the state or federal government, respectively. Defendants either hire attorneys to represent them or are provided representation through a state or federal public defender or court appointment. Similarly, in civil matters, a plaintiff hires an attorney to file a lawsuit against the defendant who in turn also must obtain legal representation (see the section Pro Se Litigants). Regardless of the role that an attorney may play, his or her obligation is generally the same, namely, “to act with reasonable diligence and promptness in representing a client” (American Bar Association, 2009, section 1.3). Many psychologists misunderstand the attorney’s role. Because the legal system is designed to resolve disputes, it is adversarial in nature, and one hires an attorney to act as his or her advocate. Therefore, it is the lawyer’s obligation to do everything he or she can, within the rules, to advocate for his or her client’s position. Those psychologists who find their interactions with lawyers objectionable might be surprised to learn that their ethical responsibilities are quite similar to those of psychologists. For example, both are expected to place their client’s interests ahead of their own and to protect confidential information. Decisions within the legal system are made by the trier of fact. Typically, the trier of fact is a jury, and the judge is in charge of the proceedings. In other cases, the judge may serve in both roles. Within the legal context, forensic psychologists may play a variety of roles. ROLES OF FORENSIC PSYCHOLOGISTS Forensic psychologists occupy a variety of professional roles, including researchers, therapists and evaluators, consultants, and witnesses. We discuss these roles in the following sections. 92

Researchers Although the media may portray forensic psychologists as those who make their living testifying in court, such persons represent only a small portion of a much broader field. Within the research community, scholars work in a host of areas such as eyewitness testimony, jury decision making, memory and suggestibility, development of various psychological tests, child development, and human cognition. Some of this research has direct social policy implications. The work of Gary Wells and his colleagues is an exemplar in this area because his research on police interview procedures of eyewitnesses led to a change on policy by the Department of Justice (e.g., Wells et al., 2000); this research recently was summarized in a scientific review article, published by the American Psychology–Law Society (Kassin et al., 2010). A second example is that of John Monahan, who with his colleagues has developed a widely used instrument to predict violent recidivism (Monahan et al., 2001, 2005). A third example is Michael Lamb, who with others developed an interview protocol for children who are alleged victims of child abuse that has been adopted widely across the nation (Lamb, Hershkowitz, Orbach, & Esplin, 2008; Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2007). Other scholars pursue research that may have no direct policy implications yet may contribute to basic science in ways we may appreciate only in the future. Finally, we should note that many psychologists trained in social, developmental, or cognitive psychology contribute to forensic psychology (e.g., Loftus, 1997), even though they might not consider themselves forensic psychologists. Ira Packer (2008) recently introduced the term legal psychology to differentiate legally related research from forensic psychology, which refers to practice.

Therapists and Evaluators Again, contrary to the stereotype, many forensic psychologists work in institutional settings, such as forensic units of state psychiatric hospitals and state and federal correctional facilities. These psychologists generally offer both treatment and assessment services. With regard to assessment, these psychologists may perform evaluations regarding competence and sanity and for various types of risk, such as future

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violence or sexual offending. In terms of treatment, these forensic psychologists offer a wide range of treatment services, including more specific activities such as restoration of competency and treatment of sex offenders. One recent development in the field of criminal justice has been the establishment of problem-solving courts (e.g., drug courts) or mental health courts where nonviolent offenders may receive treatment and intensive probation in lieu of jail time. Many psychologists provide services under the auspices of these courts.

Consultants Attorneys often employ psychologists to help them with their cases. In this role, psychologists may play a wide variety of roles at different stages of the trial process. For example, they, as well as other professionals, may do research that supports a motion for a change of venue, lead focus groups of potential veniremen, or develop juror questionnaires. During the trial, consultants may help lawyers select jury members, refine their opening statements, prepare witnesses for testimony, and help develop questions for examination and cross-examination. Such assistance can be especially helpful when the lawyer needs to present expert testimony (see the section Types of Expert Witnesses) or cross-examine opposing experts regarding social science research. Finally, they may assist in crafting closing arguments. (For further reading regarding trial consultation, see Brodsky, 2009, and Wrightsman, 2005.) When performing these duties, the psychologist remains committed to the Ethics Code. For example, the consulting psychologist should maintain professional responsibility by providing only scientifically supportable information to the attorney (see Standard 2.04, Bases for Scientific and Professional Judgments). In other activities such as constructing surveys for potential jurors, consultants are obligated to maintain competence by being familiar with current scientific knowledge and using the best scientific methods when performing their work (Standard 2.03, Maintaining Competence).

Witnesses When someone has knowledge of facts related to a legal proceeding, he or she may be subpoenaed to

testify, and as a citizen, is obligated to do so without compensation. Such witnesses are referred to as fact or percipient witnesses, and they are allowed to testify only regarding matters about which they have personal or direct knowledge. For example, John may testify if he saw Mary ram into the back of Jim’s car while Jim was waiting at a red light, but John would not be allowed to do so if he only heard the story from Suzie because such testimony would constitute hearsay and be inadmissible under Rule 801(c) of the Federal Rules of Evidence (Definitions of Hearsay, 1997). States, however, may differ in this regard. Typically, forensic psychologists act as expert witnesses. Unlike fact witnesses, they are allowed, within certain limits, to offer their professional opinions regarding certain matters that are in dispute. For many years, experts were allowed to testify with few restrictions. This changed when the U.S. Supreme Court handed down a decision that required courts to engage in a process of evaluating both the qualifications of expert witnesses, and the scientific bases of their testimony (Daubert v. Merrell Dow Pharmaceuticals, 1993). Later, this decision was codified in Rule 702 (Testimony by Experts, 2000), which generally is adopted in one form or another by most states. Article VII addresses opinions and expert testimony. More specifically, Rule 702 states the following: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Testimony by Experts, 2000) Although forensic psychologists must be familiar with this rule, it hardly is different from our own professional standards. For example, to be “qualified 93

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as an expert” one must be competent in the area(s) in which he or she offers testimony (Standard, 2.01, Boundaries of Competence). Competence generally will be assessed by the court based on the witness demonstrating that she or he has relevant and current knowledge regarding the subjects over which he or she is to be examined, prior experience testifying on the subject, or relevant scholarly publications. We understand the term “testimony based upon sufficient facts or data” to refer to scientific responsibility (Standard, 2.04, Bases for Scientific or Professional Judgment). The phrases “reliable principles and methods (and) . . . the witness has applied the principles and methods reliably to the facts of the case” generally are understood to mean that experts adhere to the scientific method. These legal restrictions and ethical principles lay the foundation for experts to testify in court, but within that framework, they may play different roles. TYPES OF EXPERT WITNESSES Generally, there are three types of witnesses. Those who offer testimony strictly on scientific issues are referred to as testimonial, educational, or pure witnesses. Those who evaluate plaintiffs or defendants are referred to as examining experts. Sometimes, clinicians are asked to testify about their patients. These professionals are referred to as treating experts.

Testimonial, Educational, or Pure Experts A lawyer may choose to put on testimony regarding current scientific knowledge in a particular area if she or he feels it will advance his or her client’s case. For example, a criminal defense lawyer may wish to put on evidence regarding children’s memory in a child sex abuse case to suggest that the alleged victim’s memory may not be reliable. A family attorney may choose to have a witness testify regarding attachment theory to argue that one parent is more capable than the other. Or, a lawyer may wish to present evidence regarding the adverse effects of sexual harassment in a civil matter. In the 21st century, a wide variety of experts are admitted to testify regarding such matters as eyewitness testimony, future dangerousness, recidivism of sexual offenses, 94

the nature and course of posttraumatic stress disorder, and false confessions, to name a few. Regardless of the nature of the testimony to be presented, the selection and work of this type of witness generally will follow the same procedure. First, the attorney contacts the expert, explains the case and asks whether or not the expert feels that she or he is qualified to render an opinion regarding a particular matter. During this discussion, the expert often will provide a curriculum vita to the lawyer as well as a list of cases in which she or he previously has testified. Also, although not offering any opinions regarding the case in question, the expert may briefly explain relevant scientific findings and how they might be helpful. If the lawyer considers the responses potentially helpful, he or she and the expert will agree on fees, and the expert will request all relevant documents from the lawyer. After a review of these materials, the expert will provide his or her opinion and answer whatever questions the lawyer may have. If the lawyer finds the opinions helpful, she or he will inform the expert of his or her intention to list the expert as a witness in case the matter goes to trial. If the lawyer does not consider the opinion helpful, the expert will be dismissed and will have no further involvement in the case. On the basis of the work product rule (see the section Confidentiality and Privilege), the expert will not be free to disclose his or her role, involvement, or opinions in the case. In other cases, pure experts may be asked to testify as rebuttal witnesses if an attorney anticipates that opposing counsel will put on testimony that is adverse to his or her client’s interest. In such cases, a pure expert may be retained to review the work of another expert or to listen to his or her testimony in court and be prepared to rebut it. In civil matters, for example, a forensic psychologist may be retained to evaluate a plaintiff for damages. If the plaintiff’s attorney finds the evaluation helpful, she or he will ask the examining psychologist to write a report, which then must be produced to the defense. Once the defense team receives the expert’s report, they may ask to have their own expert examine the plaintiff as well. (This type of examination is often referred to as an independent medical examination.) In other cases, the defense may choose to hire a pure

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expert to critique the report of the plaintiff’s examining expert both through a report and possibly subsequent testimony. Consider the following example. Case Example 1 Dr. I’ve NoRules was asked to evaluate a plaintiff in a civil matter. Dr. NoRules interviewed the plaintiff for 2 hours, gave her a Rorschach, and concluded that she suffered from PTSD that was solely attributable to the defendant’s conduct. The defendant’s expert, Dr. Good Scout, wrote a report and subsequently testified in rebuttal that Dr. NoRules failed to follow appropriate professional procedures, did not adhere to existing standards, and as a result his opinion could not be scientifically supported. When pure experts are qualified to testify, they often are first examined regarding the bases for their opinions as well as the nature of the testimony they intend to offer (Disclosure of Facts or Data Underlying Expert Opinion, 1993). After such an examination, sometimes referred to as a Daubert challenge, the court will allow such testimony if it determines that the information is relevant, beyond the knowledge of the average juror and based on peerreviewed scientific research (see Daubert v. Merrell Dow Pharmaceuticals, 1993; Relevant Evidence Generally Admissible, Irrelevant Evidence Inadmissible, 1975). When such hearings are held, pure experts generally are required to bring with them all the information they relied on, including copies of scholarly articles. To avoid the difficulty of producing so many documents, pure experts may testify based on their general knowledge of the subject, but doing so may also provide the basis for a motion to exclude their testimony.

Examining Experts Forensic psychologists may perform assessments of litigants in criminal, civil, family, or various administrative proceedings, such as disability determination and immigration. In criminal cases, forensic psychologists may evaluate defendants regarding competency to stand trial or insanity at the time of

commission of the act, or they may evaluate defendants at mitigation during the punishment phase of a trial. In civil matters, forensic psychologists are retained whenever a plaintiff places his or her mental health at issue in a lawsuit, such as claiming emotional damages as a result of discrimination. When they do so, evidence from a forensic psychologist is needed to support the claims. In family law, forensic psychologists often are asked to evaluate parents for the presence of psychopathology that could endanger children or to perform child custody evaluations to make recommendations to the court regarding a child’s best interest. Finally, forensic psychologists also may be used in administrative hearings, such as immigration matters, where a person’s removal from the United States can be canceled if a U.S. citizen would experience extreme or unusual hardship as a result (Immigration and Naturalization Service v. Jong Ha Wang, 1981). In each of these cases, forensic psychologists perform what has now is called a forensic mental health assessment (FMHA). This term refers to a process by which forensic psychologists conduct evaluations for the court, the government, or a private attorney. Their primary purpose is to provide information about a person’s relevant capacities or mental state with respect to specific legal issues (Heilbrun, 2001; Heilbrun, Marczyk, DeMatteo, & Goldstein, 2008). Because of the role they play in the legal process, FMHAs are quite different from assessments that are performed in clinical situations because all opinions offered must be substantiated by independent means. Case Example 2 Dr. Heeza Gooddoc was asked to evaluate Feigned Payne by his lawyer after Payne filed a lawsuit for negligence against his employer. Payne fell, injured his back, and claimed he was in intractable pain and had become severely depressed because he was no longer able to work. In the midst of Gooddoc’s evaluation, Payne canceled a scheduled appointment and returned the next week appearing noticeably tanned. Dr. Gooddoc asked about it, and Payne told him he had been tanning because it 95

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made him feel better and helped ease his symptoms of depression. Dr. Gooddoc asked for Payne’s credit card statements since the accident. When they arrived, he discovered that Payne had good reason for his tan because he had taken an undisclosed trip to Jamaica. Along with bills from the hotel and airfare, Dr. Gooddoc discovered entries for rock climbing, a round of golf, and horseback riding. Dr. Gooddoc immediately called Payne’s lawyer to inform her of his discovery and to ask whether he should continue with the evaluation. Unlike a forensic psychologist, a clinician would never consider doing what Dr. Gooddoc did. Clinicians accept what they are told, presuming that patients tell the truth to get help. When forensic psychologists perform FMHAs, they are unable to make such assumptions (see the section When Parties Cannot Consent).

Treating Experts In some cases, clinicians, who are not forensic psychologists, may be asked to testify. Such individuals may be called in any and all matter of legal disputes when an attorney believes that their testimony will be helpful. Because clinicians often are unfamiliar with the legal system, they are prone to errors that can have serious consequences for one of the parties. Consider the following example. Case Example 3 Dr. Got N. Agenda was a dynamically oriented child psychologist who considered herself a child advocate and frequently used play therapy as part of her treatment process. She was consulted by Gail Gonna Get’im who expressed concern that her daughter Patience might have been sexually abused by her soon-to-beex-husband. After a brief interview with Ms. Get’im and three play therapy sessions with Patience, Dr. Agenda testified that Mr. Get’im had sexually abused Patience, solely on the basis of inferences from her play. Because of this testimony, Mr. Get’im 96

was temporarily prohibited from having any contact at all with his daughter pending further investigation. Months later, it was revealed that Ms. Get’im previously had consulted three other child psychologists, all of whom believed that she was using Patience to extract revenge on her husband and refused to provide the testimony she wanted because they could not substantiate the allegations. In this example, Dr. Agenda had a bias in favor of Ms. Get’im’s claim. Regardless of the reason why she might feel that way, she did not follow appropriate clinical or forensic procedures and did not remain within the boundaries of her competence (Standard 2.01(a), Competence). (For a more detailed discussion of how such situations may arise, see Tjeltveit & Gottlieb, 2010.) In other situations, forensic psychologists or clinicians may play hybrid roles. For example, a court may order psychotherapy for a child, reunification therapy for a child and one of his or her parents, or family therapy to help a troubled teenager. In such cases, the court order should address a number of issues, such as the scope of the practitioner’s assignment and limitations on confidentiality. (For further reading, see Greenberg & Gould, 2001.)

Reviews, Rebuttals, and Second Opinions Finally, forensic psychologists may be retained to perform a variety of more specific tasks. For example, one may be asked review the work of another psychologist to determine whether it meets appropriate professional standards. What if Feigned Payne had seen a psychologist who did not do as thorough an examination as did Dr. Gooddoc, and she or he wrote a report supporting Payne’s claim? In such a case, another psychologist might be asked to review the work and write a report or testify that the examiner’s work product did not meet professional standards. A second role is that of a rebuttal witness. In Case Example 3, the father’s lawyer might call a forensic expert to listen to the testimony of Dr. Got N. Agenda and then explain how her testimony does not conform to professional standards and should

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not be considered reliable. A third possibility is that a litigant who has received an evaluation she or he does not find favorable, might seek a second opinion to determine whether a more favorable outcome might be possible. Each of these cases involves observing one common principle, namely, that it generally is not considered appropriate for one to challenge the conclusions of another. This caution is based on the assumption that a reviewer or rebuttal witness typically will not have all of the data made available to the evaluator. For example, a woman was evaluated and given the diagnosis of borderline personality disorder, but the evaluation included gross misinterpretations of standard psychological tests, suggesting incompetence on the part of the evaluator. The psychologist who reviewed only the evaluator’s report said that she could testify regarding violations of professional standards (e.g., Standard 9.01, Bases for Assessments, and Standard 9.06, Interpreting Assessment Results) and suggest rival hypotheses, but she would not challenge the diagnosis itself. PATHS TO ACHIEVING COMPETENCE Although there is no consensus regarding how forensic psychologists should be trained (Bersoff et al., 1997), one may use several means to obtain competence in this specialty area. We describe these means in the following sections. (More information on pathways to competence as a psychologist in general can be found in Volume 1, Chapter 6, this handbook.) We then discuss specific skills needed for functioning in this area. (For more information about training opportunities at all levels, see American Psychology–Law Society, 2011a.)

Varying Routes As noted, forensic psychology is a relatively new specialty, and senior colleagues often were required to cobble together their skill sets as best they could to do this work. They generally accomplished this through extensive reading, attending continuing education workshops, and obtaining supervision. This path remains a common one, but new ones have emerged (although not without some controversy).

As the specialty has matured, its leaders have endeavored to more precisely define its training and education requirements. Generally, there are four different paths. First, some argue that a number of more specific functions of forensic psychologists can be performed by persons trained at the master’s degree level. A second view is that forensic psychology should be a predoctoral specialty along with other currently approved APA specialties, such as clinical, counseling, and school psychology, but such programs remain uncommon because the APA does not accredit them. To address this situation, a number of training directors have chosen to obtain APA accreditation in clinical or counseling psychology, offer a forensic track within the program, and encourage students to seek internships and postdoctoral training that provide additional forensic training and experience. Advocates for such programs claim that their students will first obtain sound clinical training and then be well prepared to perform forensic functions. Opponents view this option as an unacceptable shortcut and claim that forensic psychology should be a postdoctoral specialty. We also note that there is no consensus regarding the training requirements for these programs (Mary Alice Conroy, personal communication, January 24, 2010). The third path is the most demanding and appears to be supported by a majority of specialty leaders. Proponents recommend obtaining a doctoral degree, including a clinical internship, in an existing accredited specialty, such as clinical or counseling psychology, to firmly establish clinical skills. Once accomplished, this model suggests that forensic psychology training be pursued with a 1-year full-time postdoctoral fellowship (Council of Specialties in Psychology, 2007). Few forensic psychologists pursued this course in the past because such training was not readily available. In recent years, these offerings have expanded, and students are availing themselves of these opportunities in greater numbers, but they remain rather limited. (For a list of these programs, see American Psychology–Law Society, 2011b; for a recent survey, see Hall, Cook, & Berman, 2010.) In the fourth path, some doctoral training programs offer a combined doctoral–juris doctor curriculum. 97

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Although graduates of these programs may become licensed to practice, those who choose it are often more interested in research. Others have found it helpful to pursue formal legal training without necessarily seeking law degrees. This may be done in at least two ways. For example, psychology graduate students often are allowed to take courses at their university’s law schools. A second alternative is to pursue a master of legal studies degree. This program generally entails a 1-year full-time commitment to law school. Graduates are not eligible to sit for the bar examination or practice law but pursue such studies to advance their knowledge and research. (For a detailed discussion of training in forensic psychology, see Bersoff et al., 1997; DeMatteo, Marczyk, Krauss, & Burl, 2009; Packer & Borum, 2003.) Regardless of the route one pursues, for some it culminates with the passing of an examination administered by the American Board of Forensic Psychology (ABFP), a subsidiary of the American Board of Professional Psychology. Those who successfully pass the exam are entitled to refer to themselves as board certified specialists. For those without sufficient formal training to sit for the examination, the American Academy of Forensic Psychology offers continuing education workshops that are recognized by the ABFP. A recommended reading list may be found at their website (ABFP, 2011).

Advanced Skills We have described forensic psychology as a rather broad specialty. To the extent that we have succeeded, it should now be apparent that one cannot be proficient in all its areas. In our experience, most forensic psychologists work within a limited number of practice areas. There seems to be a practical reason to do so. Forensic psychologists often are asked to consult with attorneys and sometimes to testify about specific issues. Busy lawyers generally do not have time to wait for a consultant to research an issue thoroughly before providing them with relevant information. Rather, when questions come, forensic psychologists generally must be ready to answer them. Doing so requires being current with recent developments in the law and the literature in one’s specialty area so that questions can be answered 98

accurately on the basis of current psychological science. Because this is a demanding and time-consuming activity, restricting oneself to specific practice areas is a reasonable choice if one is to practice competently (Standard 2.01, Boundaries of Competence).

Personal Characteristics We are unaware of any data that examine the personal characteristics of forensic psychologists as a group or of any material that will help students determine whether they have the personal attributes needed for this work. Nevertheless, our experience is that most forensic psychologists view themselves as a separate breed. This may be true for a variety of reasons. First, unlike clinicians, forensic psychologists are comfortable working within an adversarial system. It is hardly the warm and accepting atmosphere of a clinician’s office, and one needs a thicker skin to function in this environment. Those who find the prospect of cross-examination a nightmare are well advised to find other work. Second, maintaining professional boundaries can be an ongoing and challenging task with attorneys, litigants, and sometimes the court. The ability to clearly define one’s role, the recognition of its limits, and the assertiveness to remain within it, are vital to avoid harm (Standard 3.05, Multiple Relationships; Standard 3.06, Conflict of Interest). For example, child custody evaluators should resist the urging of others to take on an inappropriate postdecree role such as family therapist or parenting coordinator. Third, for those who choose to testify, strong teaching skills are necessary. This is because forensic psychologists often are asked to explain complex issues in a brief period of time and to do so in a way that tells the whole truth (Gutheil, Hauser, White, Spruiell, & Strassburger, 2003) and advocates for the scientific data being presented. Long, abstract dissertations are unhelpful; one must be able to quickly get to the crux of the matter, explain the psychological science that supports one’s opinion, and do so in straightforward terms. Brown (2000) described this skill well: Feminist forensic practitioners should focus on the ethics of how they can present testimony in a manner that empowers

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the jury in their roles as decision makers, avoiding more than necessary the creation of a false sense of the “expert” as infallible. . . . My metaphor for this is that a feminist expert does not hide behind the mask of professionalism, like the Wizard of Oz behind his smoke and mirrors, but she or he instead steps out from behind the curtain, revealing her or his information in a respectful form that educates and empowers jurors and makes them a part of a collaborative thought process with the psychologist. (p. 81) Fourth, one must tolerate living in an unpredictable world. Schedules can change without notice, frequently beyond the psychologist’s control. One must be able to tolerate uncertainty, enjoy a high level of variety, and have the ability to manage a number of different cases simultaneously. Fifth, organizational skills cannot be underemphasized. It is vital that the psychologist have a reliable system for locating documents promptly and keeping track of deadlines. Attorneys are busy people, and forensic psychologists should not rely on them for notification of deadlines and appearances. Because managing schedules often can be difficult, avoiding conflicts requires ongoing monitoring. Finally, those who work in this area remain mindful that the road to Hell is paved with good intentions. Maintaining personal distance from a litigant’s cause or an attorney’s impassioned appeals is a prerequisite. Failing to do so can lead to such actions as court lawsuits and state regulatory board complaints. Such behavior also sullies the profession. AREAS OF PRACTICE The practice of forensic psychology encompasses vastly different areas of the law. In this section, we briefly review four of them: criminal law, civil law, family law, and immigration law.

Criminal Law Our impression is that the majority of forensic psychologists work in the area of criminal law, and

many restrict themselves to it. In fact, some become subspecialized to a very high degree, in part because of recent advances in psychological science. In this section, we provide a sampler of the assignments they may accept. Forensic psychologists may become involved in criminal matters before a trial is ever held. For example, if after being arrested, a person exhibits symptoms of a severe mental illness, the court or the defense attorney may order or request an evaluation to determine whether the defendant is competent to stand trial. If not, subsequent evaluations will be conducted to determine whether the person has been “restored” to competency. Once a defendant has been indicted, his or her attorney will begin to prepare a defense. Doing so involves a variety of strategies and methods, some of which may require the services of a forensic psychologist. The first thing the attorney must decide is the purpose for which a forensic psychologist is being retained. In the United States, criminal trials usually are bifurcated. This means that guilt or innocence is determined first and then a separate hearing is held regarding punishment if the defendant is found guilty. Therefore, a lawyer must decide whether the defendant will benefit from testimony during one or both phases of the trial. During the guilt–innocence phase, forensic psychologists often testify as pure or educational experts. Depending on the facts of the case, for example, experts may testify regarding a variety of matters, such as the validity of eyewitness testimony, certain police investigative techniques, human memory, and so on. Attorneys also retain forensic psychologists to testify during the punishment phase when they are concerned that their client will be convicted. Forensic psychologists often are asked to evaluate defendants in the hope that they can offer evidence that will be of assistance during one phase of the trial or the other. Although the facts of the case dictate the questions the forensic psychologist is asked, the most typical questions address insanity, diminished capacity, the defendant’s state of mind at the time the act was committed (e.g., Packer, 2009), a history of mental illness or mental retardation, false confessions (DeClue, 2005), and a variety of 99

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matters regarding competency (e.g., Grisso, 2003). When a person has been convicted of a capital crime, defense attorneys often ask forensic psychologists to testify regarding the risk of the defendant’s future dangerousness in the prison population in the hope of avoiding execution (e.g., Cunningham, Reidy, & Sorensen, 2008). In some states (e.g., California), those convicted of sex offenses also may be civilly committed once their term of incarceration has ended and may be released if they are no longer considered dangerous. In these cases, it falls to forensic psychologists to evaluate such persons and determine their risk of reoffending. In recent years, a great deal of research has been devoted to developing actuarial instruments to assist practitioners with this task, but they are presently mired in controversy regarding their sensitivity and specificity and the probability of yielding false positives in the context of predicting low baserate phenomena (Mossman, 2000; Rogers, 2000). A large number of psychologists work within the correctional system, providing both treatment and evaluative services to inmates. This role is somewhat specific, and some who work in these capacities refer to themselves as correctional psychologists. Nevertheless, they focus on those who find themselves in the criminal justice system. Finally, those who work in the criminal area also may function within the juvenile justice system. Originally, juvenile justice was created so that adolescents would be diverted from the adult criminal justice system. In recent years, this model has eroded, and an increasing number of juveniles, including some who are rather young, have been tried as adults. This procedure has drawn great criticism, especially because the science is now well established that adolescents’ level of judgment and decision making is not on par with that of adults (e.g., Steinberg, 2009), calling their competency into question (for further reading, see Grisso, 2003). Furthermore, the juvenile justice system places much greater emphasis on rehabilitation, and much research has focused on therapies for this population (Grisso, 2007).

Civil Law Forensic psychologists may function within a number of areas of civil law. For example, one may be 100

asked to evaluate elderly or disabled persons to determine whether they are capable of managing their own affairs or need the court to appoint a legal guardian for them. Such evaluations involve determining competency and may arise in a variety of civil contexts, such as testamentary capacity and the ability to consent to treatment. Many assessments surround applications for benefits under workers compensation and whether an applicant was sufficiently harmed or impaired to be considered disabled and receive government benefits. Most generally, civil litigation surrounds a claim by plaintiffs that they suffered some mental or emotional damage as the result of the defendant, from whom they seek money damages. Such cases can, for example, arise under the Americans With Disabilities Act (1991) regarding discrimination or disproportionate treatment, various statutes regarding sexual harassment, wrongful death, and medical malpractice. Forensic psychologists may be employed by plaintiffs or defendants. When hired by the former, the task is to try to determine whether the plaintiff was harmed by the alleged acts, and if so, by how much and to what degree given the circumstances at the time of the alleged action. In these cases, the forensic psychologist must extensively investigate to determine not only whether the alleged acts caused any harm to the plaintiff, but also what other factors may already have been in play that could have affected the plaintiff’s response. When experts are hired by the defense, they may evaluate plaintiffs themselves (this procedure sometimes is called an IME or a Rule 35 examination) or they simply may be retained to explain why the procedures of the plaintiff’s expert were not adequate to support his or her conclusions.

Family Law Historically, family law was considered a part of civil law, but it does not easily fit within that category. This is because family disputes can surround both money and children and they can entail criminal consequence, such as failure to pay child support and, less commonly, child abduction. In nearly all states, custodial determinations are based on a standard referred to as the “best interest of the child.”

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The vast majority of child custody matters are decided by agreement between the parties (Maccoby & Mnookin, 1992); only a small minority of cases require the involvement of forensic psychologists who may be asked to perform various roles. For example, one may be asked to assess one or both parents to rule out serious mental illness so that the court can feel comfortable leaving a child in the care of that parent. Sometimes such allegations are made by both parties. In these situations, the court may appoint a child custody evaluator (CCE) to obtain recommendations regarding who should be appointed as the child(ren)’s primary care taker. A number of issues can arise in this context, including child sexual abuse, alienation of children, domestic violence, lesbian or gay parenting, attachment issues, and child development. Forensic psychologists who choose to perform CCEs will need to be familiar with all of these areas to perform competent assessments and provide scientifically based recommendations to the court. (For further reading, see Guidelines for Child Custody Evaluations in Family Law Proceedings [APA, 2009b]; and Model Standards of Practice for Child Custody Evaluation [Association of Family and Conciliation Courts, 2007].) Another family law issue is that of termination of parental rights. In some cases, the state will move to have a parent’s legal rights terminated when it has concluded that the parent is not capable of adequately caring for his or her child. In some cases, such individuals will ask that psychological evaluations be performed in the hope of mounting a defense to the state’s charge. In such cases, the forensic psychologist must be familiar with the relevant legal test(s) in their jurisdiction. (For further reading, see Guidelines for Parental Responsibility, APA, 2009a.) Also, a number of emerging areas in this practice area show promise for better resolution of family disputes than litigation. First, many states now require that couples mediate before going to trial. In the case of CCEs, the mediation often is held after the report is tendered to the court to provide both sides with greater information with which to settle the matter. Mediation is a proven technique that saves money and a great deal of heartache. In fact, follow-up studies have shown that couples who

mediate generally are more satisfied with the outcome than those who chose to litigate (Emery, Sbarra, & Grover, 2005). In addition, forensic, and some clinical psychologists, may play a role after a final decree of divorce is entered. Some may offer psychoeducational classes in parenting and coparenting education. Others may offer what recently has been termed reunification therapy with the intent of renewing relations between children and a parent from whom she or he may have become alienated (Warshak, 2010). A final development is that of a parenting coordinator or facilitator. This is another hybrid role in which the psychologist not only helps the family to work together more effectively for the benefit of the children but also, in some cases, may be empowered by the court to make decisions regarding minor disputes without the couple having to return to court each time one arises.

Immigration Law This area of the law falls within administrative law, under the Department of Homeland Security, and can be highly technical and confusing to those not familiar with it. Forensic psychologists often are retained, for example, to help the attorney keep his or her client from being deported (or removed). A variety of defense strategies are available depending on the facts of the case, including where the individual is from, when she or he illegally entered the United States, and whether she or he is seeking political asylum or has been a victim of torture or domestic violence. Because the legal tests in each case can vary widely, the competent forensic psychologist determines the legal standard that must be met from the attorney before accepting the assignment. For example, some who are here illegally can have their removal canceled if they are able to show that a U.S. citizen would experience “extreme and unusual hardship” (Immigration and Naturalization Service v. Jong Ha Wang, 1981) if she or he were deported. Obviously this is a very high standard, and forensic psychologists are well advised, as a matter of informed consent (Standard 9.03, Informed Consent in Assessments), to inform lawyers before beginning an evaluation that meeting it typically will be very difficult. 101

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A second issue is that of cultural competence. Working in this area means dealing with people from around the world. Certainly, one cannot be familiar with the culture of everyone she or he evaluates, but awareness of cultural issues in this practice area is vital; forensic psychologists need to be both curious and respectful about others and their ways to perform evaluations that are culturally competent and appropriate to the circumstance (Standard 9.06, Interpreting Assessment Results). ETHICAL ISSUES Those who practice forensic psychology navigate complex waters because they must adhere to state regulatory board rules and regulations in their jurisdiction, professional ethical standards (APA, 2010), specialty guidelines1 (Committee on Ethical Guidelines for Forensic Psychologists, 1991), and relevant legal requirements and procedures. At times, reconciling these demands can be challenging. Therefore, it is incumbent on forensic psychologists to be extremely familiar with the ethical guidelines of their specialty and to make every effort to follow overarching ethical principles or virtues in light of these obligations (e.g., Handelsman, Knapp, & Gottlieb, 2002). In the following sections, we highlight those obligations that are most salient.

Who Is the Client? A client is someone to whom the psychologist is primarily obligated (Monahan, 1980). Most psychologists understand this concept well in the clinical context, but in the legal arena, the definition of the client may require more careful definition. Typically, forensic psychologists work for the court or an attorney, but these matters are not always so clearcut, and in some cases, psychologists work for litigants directly.

Working for the Court Forensic psychologists often function under court orders. Sometimes, these orders are standard and

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unambiguous, such as court-ordered competency or sanity evaluations. (We examine the controversy regarding performing both such evaluations at the same time later in this chapter.) In this case, the forensic psychologist is working for the court and must inform the defendant of that relationship before proceeding (see Packer, 2009). A similar situation arises when courts appoint child custody evaluators are asked to make recommendations regarding a child’s best interest. Unfortunately, the role of court-appointed evaluator is not readily understood by all and oftentimes may require more extensive explanation as a matter of informed consent (see the section Informed Consent).

Working for an Attorney When working for an attorney, forensic psychologists may play a variety of roles. Regardless of the specific role psychologists play, they still are required to adhere to appropriate professional standards. For example, in a consulting role, one must inform the lawyer that no science exists to answer a particular question. Or when asked, a consultant must be clear that there is little science regarding the selection of potential jurors who will be favorable to a lawyer’s case (see Wrightsman, 2005) and that selection often is based on inaccurate social stereotypes. Being honest with the lawyer in this case is a matter of fidelity (Kitchener, 1984); the consultant has an obligation to scientific responsibility (Standard 2.04, Bases of Scientific or Professional Judgments) even at the risk of upsetting the lawyer and losing future referrals from him or her. Consider the following example. Case Example 4 Dr. Karen Knows Herstuff was hired by a criminal defense lawyer to evaluate the defendant for possible mitigation testimony at trial. The attorney had provided Dr. Herstuff with a number of legal theories that she hoped to pursue and wanted to know which would be scientifically supportable. After evaluating

The Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) were under review at this writing. Citations in the text are from the 1991 document; however, we have made every effort to ensure that the general principles cited will be retained in the upcoming revision.

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the defendant, Dr. Herstuff reported that none of the theories the lawyer had proposed could be scientifically supported because she concluded that the defendant was a psychopath, and she was unable to testify at mitigation. This certainly is not information the attorney had hoped for because she now must construct a different legal theory to present in mitigation. We do not know from the example whether Dr. Herstuff was tempted to modify test scores, interpret information in ways more favorable to the lawyer’s case, or ignore certain information, but it is hard to imagine that she found it easy to deliver such unwelcome news. Furthermore, our example does not tell us what happened next. How much did the lawyer pressure Dr. Herstuff to “find a way to help because the entire case rests on your testimony.” Unfortunately, scenarios such as these are not rare, and it is hard to withstand such impassioned appeals. Nevertheless, we presume that Dr. Herstuff stood her ground because she understood that aside from doing the best she could for her client within the confines of her professional ethical standards (e.g., Standard 2.04, Bases for Scientific and Professional Judgment), she had an overarching obligation to the court to tell the whole truth (Gutheil et al., 2003).

Pro Se Litigants A pro se litigant (or pro per in some states) is one who represents him- or herself. Such individuals are rare in criminal matters in which the government must provide an attorney for those who cannot afford one. This is not the case in civil and family law matters where forensic psychologists may be approached for assistance directly by litigants. We are unaware of any ethical standard or guideline that specifically prohibits accepting such assignments, but doing so generally is considered ill advised. The primary reason for refusing such assignments is the risk of entering into a potentially harmful multiple relationship (Standard 3.05, Multiple Relationships) in which the forensic psychologists risk playing the roles of independent evaluator, strategy consultant, and even therapist with someone who does not appreciate the need for such distinctions.

Regardless of whom the client may be, a forensic psychologist ultimately must balance the obligations to one’s client with those to one’s profession. As we have noted, limit setting in such cases often is necessary not only as a matter of good ethical practice but also as a matter of maintaining respect for the profession. Finally, even though forensic psychologists have a primary obligation to one party, such as an attorney, this does not mean that they have no aspirational obligations to others. For example, one should act in ways that reduce harm to litigants by conscientiously explaining the nature of the evaluation, striving to ensure that a party has a chance to present his or her case, and carefully writing reports to avoid unnecessary pain.

Informed Consent The contemporary notion of informed consent originated in part as a result of the Nuremberg trials after World War II. (For a detailed discussion, see Beauchamp & Childress, 2009. More information on this topic can be found in Volume 1, Chapter 12, this handbook, and Chapter 16, this volume.) In the 21st century, psychologists have a fundamental obligation to provide informed consent to those with whom they work (Standard 3.10, Informed Consent, and Standard 9.03, Informed Consent in Assessments; Committee on Ethical Guidelines for Forensic Psychologists, 1991, IV.E.1). Such issues are relatively clear-cut in clinical work, but they can be quite different in forensic contexts. For example, a person can be evaluated for competency to stand trial, pursuant to a court order, without informed consent, but a conscientious and ethical forensic psychologist would take steps to help ensure that the party being evaluated understood the nature of the evaluation (Standards 3.10c, Informed Consent; Standard 3.07, Third-Party Requests for Services; and Standard 9.03(a), Informed Consent in Assessments). When parties can consent. Following is a hypothetical example illustrating when parties can consent. Case Example 5 Harriet Hapless sued her former employer for sexual harassment. Because 103

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she was claiming psychological damages as a result of her experience, her lawyer referred her for evaluation to Dr. Simon Straightarrow. At their first meeting, Dr. Straightarrow informed Ms. Hapless that he was working for her attorney, and after the evaluation, he would provide feedback to her lawyer based on the best science available. As a result, he could not guarantee Hapless results she would necessarily find favorable. Hapless became infuriated and stormed out of Straightarrow’s office. As she left, he heard her say, “Whose side are you on anyway?” We acknowledge that this example is a bit exaggerated, but it illustrates the point that Ms. Hapless is not required to use the services of an expert that her attorney chooses for her. Even if the lawyer knew Dr. Straightarrow well, and that he would do an excellent job in assisting with the case, Ms. Hapless still has the right, as a matter of respect for her rights and dignity (Principle E of the Ethics Code) to refuse Dr. Straightarrow’s services. Dr. Straightarrow was wise to begin his first meeting with Ms. Hapless by reviewing relevant matters of informed consent. The issues to be discussed vary based on the context of the evaluation, such as civil versus criminal matters, but most generally, informed consent procedures contain the following basic elements: definition of the client, the purpose of the evaluation, the procedures that will be used, limitations to confidentiality, to whom information will be provided and under what circumstances, reporting only findings that can be supported by psychological science, inability to guarantee favorable results, discussion of possible outcomes, and fee arrangements. In some cases, an explanation of these matters can be accomplished expeditiously, and the assessment may proceed, but this is not always the case. Sometimes, litigants will not have been prepared sufficiently by their lawyers, and more time will be needed to explain these issues. In other situations, litigants may be intellectually challenged or too emotionally distraught to appreciate what they are being told (Jeste & Saks, 2006). When any of these circumstances occur, the 104

forensic psychologist is wise to take as much time as is necessary to explain this material and ensure that the litigant appreciates what she or he is being told. (For further reading, see Beauchamp & Childress, 2009, Chapter 4.) If after one’s best effort, the litigant still does not seem to understand, it may be best to adjourn and contact the attorney. When parties cannot consent. FMHAs often are conducted under court order for matters such as competency to stand trial and insanity. In such cases, defendants are not free to consent. Nevertheless, it remains the forensic psychologist’s obligation to provide the examinee with much the same information as included when parties can consent, take into consideration the person’s preference, and make reasonable efforts to seek his or her assent (Standard 3.10(b), Informed Consent). Even when defendants do not have a choice in the matter, they generally appreciate the time taken to explain these issues. On the other hand, at times, defendants may refuse to participate. This decision can leave the examiner in a difficult situation. Should she or he submit a report based on what was learned from the meeting nonetheless, or is doing so unethical? We know of no resolution to this issue but find the recommendations of Melton et al. (2007) helpful. They have suggested that the examiner advise the defendant of any known sanctions that may be imposed by refusing, arrange for the individual to seek guidance from his or her attorney, inform the person that a report will be sent nonetheless (assuming that is the examiner’s decision), explain how the refusal may reduce the validity of the report’s findings, avoid frightening the defendant to avoid coercion (Melton et al., 2007, p. 97), and “make bona fide efforts to assist the defendant in understanding the parameters of the evaluation and to obtain his or her assent to proceed” (Melton et al., 2007, p. 158). (For further reading, see Packer, 2009.) In the spirit of positive ethics (Handelsman et al., 2002), when a party’s ability to understand the nature of the evaluation appears compromised, the evaluator may try innovative ways to explain the process, such as multiple explanations or suggest to the attorney the possibility of involving family members as intermediaries. Barriers to informed assent also may arise

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in civil contexts, such as child custody evaluations. Consider the following example. Case Example 6 Dr. Midell O’The Road was performing a child custody evaluation. The parents were both deeply wounded and furious with each other. Dr. Road made it clear at the outset that she was working under the court’s order and that it was her job to make recommendations based on what was in their child’s best interest rather than the preferences of either parent. Nevertheless, she found herself spending a great deal of time reexplaining her neutral role to both parents who did not seem to understand why she was not on their side. In this example, one could argue that because the parties were court ordered to be evaluated by Dr. Road, it was not necessary for her to provide the same information repeatedly simply because the parties did not like, or did not chose to accept, what they had been told. Furthermore, we are unaware of any legal requirement that Dr. Road should do so. But, the fact that no rule requires such repeated explanations does not mean that doing so is a bad idea. Rather, it is the forensic psychologist’s ethical responsibility to make bona fide efforts. It is also a matter of sound risk management.

Confidentiality and Privilege Practicing psychologists of all varieties are well schooled in the requirement to maintain confidentiality in their professional work (Standard 4.01, Maintaining Confidentiality). (More information on this topic can be found in Volume 1, Chapter 13, this handbook.) In legal matters, this issue becomes more complex. As we have noted, forensic psychologists sometimes consult with attorneys. When doing so, they often work under the attorney–work product rule, and if asked, must refuse to disclose their involvement in the case. This issue becomes more complex when attorneys ask forensic psychologists to evaluate their clients. For example, forensic psychologists often are asked to evaluate defendants in anticipation

that testimony will be required for mitigation during the punishment phase of a criminal trial, but explaining this process to defendants can be challenging. Consider the following example. Case Example 7 Always N. Trouble was being tried for capital murder. Worried that her client would be convicted, Trouble’s lawyer requested a forensic evaluation to determine whether mitigating evidence could be presented during the punishment phase of the trial. She retained Dr. Lives-In-The Jail and reminded him that he was working under the work product rule until she decided whether his testimony could be helpful. When Dr. Jail meets Trouble for an initial interview, he must explain the differences between privacy, confidentiality, privilege, and disclosure. Specifically, he must inform Trouble that he is going to be interviewing him and will be asking for a great deal of personal information, which normally would be private. He can assure Trouble that because the attorney is Dr. Jail’s client, his information will not be revealed to anyone other than his lawyer, and if in the lawyer’s judgment, the data collected are not helpful to his case, the attorney–work product rule will prevent disclosure of any information Trouble provides. But, if the lawyer believes that Dr. Jail’s testimony will be helpful at trial, he must inform Trouble that whatever he tells him cannot be protected. In this example, Dr. Jail has two obligations. First, he must meet his ethical obligation as a matter of informed consent to explain these distinctions before beginning his interview with Trouble (Standard 9.03, Informed Consent in Assessments). Second, Dr. Jail must assess Trouble’s understanding of these issues and their distinctions. If he has a reason to believe that Trouble does not “appreciate” these matters, he must make every reasonable effort to see that he does. If after reasonable efforts, Dr. Jail believes that Trouble still does not understand these matters, he would be well advised to discontinue the interview and consult with Trouble’s lawyer before proceeding. 105

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As we have noted, the third prong of FMHAs is collateral sources of information. Typically, FMHAs entail collecting as much independent information as possible to corroborate data provided by defendants or litigants. A second issue regarding confidentiality can arise here in a number of ways. First, it is typical to request information from a variety of professional sources, such as physicians, mental health professionals, or schools. Because these people or institutions are obligated to maintain confidentiality, information can be obtained only when the defendant or litigant executes a valid release. (More information on this topic can be found in Volume 1, Chapter 13, this handbook.) Note that schools are covered by the Family Educational Rights and Privacy Act of 1974 (FERPA) rather than the Health Insurance Portability and Accountability Act of 1996 (HIPAA), but releases still are required. A more complex problem arises when forensic psychologists seek to interview persons who may have direct knowledge regarding the facts of the case. Consider the following example. Case Example 8 I’ve Got No Control was being sued for divorce by his wife Should’of Picked’em Better. Among other concerns, Better alleged that the children would not be safe with Control because of his history of domestic violence. Unfortunately for Better, she could recall no one who ever witnessed Control harming her, and therefore, her allegations could not be substantiated. Later, she recalled that a neighbor had witnessed at least one of these instances and provided the child custody evaluator with the person’s name. Given this new information, the custody evaluator should contact the neighbor in an effort to verify or refute Better’s allegations. In doing so, and as a matter of transparency, she must explain that the witness is not legally required to speak with her, the information to be provided is not confidential, and she could be called to court to testify regarding what she saw. Although providing this information may discourage the witness from disclosing what she 106

knows, it is the forensic psychologist’s obligation to explain both her role and the relevant aspects of the legal process. Another issue with regard to confidentiality surrounds protecting testing materials. In legal contexts, it is common for attorneys to request a litigant’s or defendant’s entire file from a forensic psychologist. Because psychological testing is a fundamental element of FMHAs, test results typically are included in the file. But, psychologists are expected to maintain test security as both an ethical (Standard 9.11, Maintaining Test Security) and a legal matter under copyright law. Therefore, when a file is requested, a forensic psychologist has an obligation to determine what if any proprietary material must be protected and therefore not provided to the attorney. This decision must be made within the context of the Ethics Code, state law, and the state regulatory board rules and regulations in his or her jurisdiction. (For example, in California, there are legal procedures that if followed would allow the psychologist to provide this information.) We recommend that when test materials are withheld, a notice to the attorney be included with the file citing the relevant ethical principle or state board ruling governing disclosure. (More information on testing can be found in Chapter 4 of this volume.) When such efforts are not successful, it is wise to consult a local attorney familiar with the issues to determine what other measures might be considered to protect the information. Issues regarding confidentiality can arise in less obvious ways. Forensic psychologists should be well grounded in clinical skills such as interviewing and observations, psychological testing, and relationship establishment; that is, forensic psychologists should be good clinicians. We assume that these skills contribute to eliciting greater and more detailed information, and when interviews go well, interviewees become more relaxed and tend to reveal more about themselves. At the same time, interviewees may lose sight of the purpose of the interview and begin to treat it as more of a therapeutic encounter. While doing so is certainly understandable, forensic psychologists remain mindful that, at times, it may be necessary to remind evaluees of the purpose of the meeting and that what they are disclosing cannot be protected. This issue is less

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problematic when forensic psychologists work under the attorney–work product rule. But, when forensic psychologists work for the court, such information cannot be protected. In those cases, forensic psychologists must decide whether to interrupt interviewees and remind them of this matter before proceeding. Finally, the forensic psychologist always should determine whether a criminal defendant has been instructed by his or her attorney not to discuss information related to the crime or to reveal information that could bear on his or her guilt to avoid self-incrimination. Forensic psychologists query defense attorneys regarding whether such information is to be withheld before initiating interviews with the defendant.

Competence We have noted that there are many paths to achieving competence in forensic psychology. Although formal training is increasingly available to students, informal and self-directed methods remain the norm. For those who pursue the latter course, there is no overarching authority available to evaluate one’s performance. Furthermore, lawyers often are not the best ones to make such decisions for us. Consider the following example. Case Example 9 Ima Newbie was a young attorney who accepted a variety of cases. One day, she was in court attending a hearing on temporary orders in a family law matter when the court appointed a custody evaluator. When asked whom she would prefer to fill this role, she immediately mentioned Dr. Reck T’Tude, whom she recently had retained successfully in a criminal matter. Knowing that Dr. T’Tude was a respected forensic psychologist, Newbie presumed that he would be competent to accept this assignment as well. When Dr. T’Tude received the order appointing him, he called Newbie to explain, much to her chagrin, that he did not accept such assignments because he had never performed such an evaluation and was not competent to do so.

The law requires that experts have the requisite education, training, and experience (Testimony by Experts, 2000) to perform forensic roles, especially if one is to testify, but lawyers are seldom in a good position to appropriately evaluate those whom they wish to retain. Such decisions often are made on the basis of reputation, word of mouth, and, increasingly, recommendations from professional listservs. Because such means are highly imperfect, it remains the forensic psychologist’s ethical obligation to accurately represent his or her qualifications (Standard 5.01, Avoidance of False or Deceptive Statements) and to function within his or her boundaries of competence (Standard 2.01, Boundaries of Competence). If they wish to enter new practice areas, they “undertake relevant education, training, supervised experience, consultation or study” (Standard 2.01(c), Boundaries of Competence) to ensure that they offer competent services. Unfortunately, some colleagues find adhering to these standards challenging, especially when attorneys are highly persuasive and offer large retainers. Potential consultants must be wary of accepting such tempting assignments, especially when they pose potential conflicts of interest (Standard 3.06, Conflict of Interest; Standard 3.05(c), Multiple Relationships). Sadly, the literature is replete with examples of those who failed to do so (e.g., Eisner, 2010). Not only does such behavior bring discredit to the profession, but it risks causing harm (Principle A; for further reading, see Beauchamp & Childress, 2009, Chapter 5). FORENSIC MENTAL HEALTH ASSESSMENTS As we have noted, the forensic context requires evaluations that resemble but are not the same as clinical assessments. To meet the foundational requirements of Rule 702 (Testimony by Experts, 2000) as well as the elements of Daubert v. Merrell Dow Pharmaceuticals (1993), forensic psychologists must adhere to a number of higher standards. In this section, we briefly review each.

Enhanced Scrutiny FMHAs are subjected to enhanced scrutiny. For example, when patients seek assistance from clinical 107

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psychologists for personal problems, they are motivated to honestly disclose their concerns to obtain the help they desire; hence, the probability of accurate self-reporting is high. In clinical situations, therefore, practitioners usually have no reason to question or doubt the veracity of a patient’s report, and they proceed in good faith based on it. The assumption of truthfulness cannot be made in legal contexts in which litigants may have a motive to present themselves in an unreasonably favorable or unfavorable light. This response style often is called impression management (Paulhus, 1984; Schlenker, 1980; see the section Impression Management). For example, litigants in family law matters are inclined to present themselves in an unusually favorable light to demonstrate that they are mentally healthy, capable, and well-functioning parents. On the other hand, persons who, for example, are social security disability and worker’s compensation applicants, or those who allege personal injury, may exaggerate their symptoms in the hope that doing so will improve the chances that their claims will succeed (see Case Example 2). Because forensic psychologists cannot assume that plaintiffs or defendants are being honest with them, FMHAs require a higher level of scrutiny of examinees than is employed in clinical evaluations. To reach this higher standard, FMHAs utilize the multitrait–multimethod approach (Campbell & Fiske, 1959). This approach refers to the fact that FMHAs entail evaluating multiple personal characteristics in differing ways. This procedure increases the chances that professional conclusions are more reliable because they are not based simply on a single source of information such as the litigant. (For a more detailed discussion regarding clinical vs. forensic roles, see Greenberg & Shuman, 1997.) FMHAs are based on three sources of data: interviews and observations, psychological testing, and collateral sources (e.g., documents and interviews of disinterested parties who have relevant factual knowledge of the issues in dispute). Because litigants cannot always be trusted to tell the truth, collateral sources are employed to corroborate relevant facts (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI.F.1). For example, had Dr. Gooddoc taken Feigned Payne’s word for how 108

he became tan so quickly (Case Example 2), he never would have requested his credit card statements. Failing to do so could have led to inaccurate testimony regarding Payne’s condition and the risk of a miscarriage of justice, not to mention the embarrassment when confronted with receipts on the witness stand by opposing counsel. (For a detailed discussion of third-party information, see Heilbrun, Warren, & Picarello, 2003.)

Transparency Forensic psychologists demonstrate the transparency of their process and show that they attempted to corroborate relevant facts (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI.F.1). Similar to the instructions we received from our math teachers, forensic psychologists are expected to “show their work.” As a practical matter, transparency refers to specific elements when writing reports for the court. First, all sources of information are listed. Such lists usually include the interviews conducted, tests administered, collateral interviews, and documents reviewed. Second, all interview notes, test results, and supporting documentation are retained in an organized manner for review by the attorneys (see the section Record Keeping). Third, the report reviews all the information collected in a clear and coherent manner. Fourth, various alternative hypotheses are examined along with the data that support or refute each of them (see the section Examination of Plausible Rival Hypotheses). Finally, conclusions are made that are based on and supported by the data obtained and explained in a logical and nontechnical manner that will allow the reader to understand how the writer came to the conclusions that she or he did. By following the guideline of transparency, the attorneys or the court will know exactly which steps were taken and the information that formed the basis of the opinions offered. In our view, transparency is more easily attained in some types of assessments than in others. For example, the legal tests for competency to stand trial are relatively specific, and conclusions generally can be made in a relatively straightforward manner. In such examinations, simply reporting the defendant’s responses in some cases may be sufficient to meet the

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criterion of transparency. Following the guideline is more difficult in civil matters where the forensic psychologist must try to tease apart varying factors that may contribute to a plaintiff’s condition—for example, if she or he is asked to have an opinion regarding causation. Arguably, the cases that challenge transparency the most are child custody evaluations in which a myriad of data must be integrated in a coherent manner. Most practitioners are not taught to write reports in this manner, and for some it can be quite challenging to do so. Yet, strong writing skills are perhaps more important in this practice niche within professional psychology than in any other.

Examination of Plausible Rival Hypotheses As noted, forensic psychologists should follow the multitrait–multimethod approach. In addition to fulfilling the requirements of enhanced scrutiny, this method serves the purpose of reducing bias by generating information with which to evaluate alternative hypotheses that might explain the data collected (Heilbrun, 2001, pp. 105–106). Because we cannot rely solely on the report of a litigant in a forensic context, evaluators are required to examine “the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses” (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI.C). Therefore, a competent forensic investigator should entertain all rival hypotheses. Doing so entails considering all reasonable explanations in addition to the one that is alleged. In the case of Feigned Payne (Case Example 2), these reasonable explanations would include among others that (a) he was fine before the events in question and was severely damaged as a result of them, (b) he was not suffering from the symptoms alleged at all, (c) he was suffering from them before the events in question and his condition had not significantly changed as a result of the alleged negligence, (d) he was suffering from them before the events in question and his symptoms were significantly greater afterward, and (e) his condition was mild and had been exacerbated by the lawsuit itself (Weissman, 2006). Including a detailed and thorough review of the arguments for and against each of these hypotheses

in the report helps assure the trier of fact that FMHAs are as objective and free of bias as they can reasonably be.

Impression Management Many tests are developed for clinical applications during which examinees genuinely seek help for personal problems. In such cases, the probability of accuracy increases because examinees are motivated to honestly disclose their concerns to receive assistance. The assumption of truthfulness does not necessarily apply in legal matters In which case examinees may have a motive to present themselves in a more or less favorable light. For example, persons who are seeking disability benefits or are involved in civil or criminal litigation may exaggerate their symptoms in the hope that doing so will improve the chances that they will prevail. Conversely, those involved in family law matters are inclined to present themselves in an unusually favorable light to show themselves as healthy and well-functioning parents. When examinees respond to test items in these ways, this response style is referred to as “impression management” (Paulhus, 1984; Schlenker, 1980). Because forensic psychologists cannot make an assumption of truthfulness in legal contexts, they remain alert to the possibility of impression management and make every effort to take it into account. For example, defendants may wish to present themselves as mentally disordered or brain damaged to avoid criminal responsibility. When such concerns arise, a variety of instruments and scales are available that are designed specifically to detect such behavior (for a detailed discussion, see Rogers, 2008).

Scientific Responsibility Forensic psychologists are required to make conclusions based on the data they collect. They are not free to ignore data that they find inconvenient or inconsistent with their hypotheses or express opinions that exceed them. This requirement is not only based on the legal requirements of Rule 702 (Testimony by Experts, 2000) regarding reliability but also on professional ethical standards that require forensic psychologists to work within their boundaries of competence (Standard 2.01(f), Boundaries of 109

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Competence) and maintain scientific responsibility (Standard 2.04, Bases for Scientific and Professional Judgments) by only making conclusions that the data will support. When forensic psychologists follow these principles, one of a number of things may result. First, if a sound conclusion can be drawn from the data, everyone benefits, and the legal process is well served. At other times, and for a variety of reasons, such conclusions may elude an examiner. In these cases, forensic psychologists often find themselves subjected to an attorney’s efforts to “find something” that will be of assistance to his or her case. Such pressure can be hard to resist, especially when the stakes are high and the evaluator knows that no one will be happy with anything less than a clear-cut finding. It is at these times that adherence to scientific responsibility may become the most challenging. But, as psychological scientists, we know that “the data are what they are.” When a forensic psychologist cannot bring greater clarity to a case because of insufficient or unclear data, everyone may be disappointed, but creating clarity in the absence of supporting data is scientifically irresponsible, and it is a disservice to the justice system as well as the profession.

Bias Psychological science has demonstrated that human beings suffer from a variety of biases that affect their judgment. These biases often are subtle and illogical, are more likely to arise when complex decision making is required, and operate so rapidly that individuals are often unaware of them (for further reading, see Gilovich, Griffin, & Kahneman, 2002; Kahneman, 2003). Even though psychologists are intellectually well aware of these processes, it often is difficult to identify them when they are at work within us. Failing to detect such biases can lead to a poor work product, harm to litigants, and a disservice to the justice system and the profession. Forensic psychology had this problem in mind when it established the standard that one should examine “the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses” (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI.C). That is, when 110

forensic psychologists begin to formulate theories about a particular case, they must then try to disconfirm their own hypotheses to avoid bias as much as possible. Consider the following example. Case Example 10 Dr. Iwanna Doright was asked to evaluate the client of a plaintiff’s lawyer in a gender and racial discrimination case. When Dr. Doright met the client, she found herself immediately drawn to her and sympathetic to her claims. Within a short time, Dr. Doright became aware of her feelings and began to work to refute the assumptions she had already made regarding the validity of the client’s allegations. Only after thoroughly examining all sides of the question in a transparent manner did Dr. Doright feel comfortable in calling the lawyer with her opinion. Unfortunately, everyone is not as conscientious or self-aware as Dr. Doright. This phenomenon was exemplified in a recent study (Murrie et al., 2009) in which the authors identified “adversarial allegiance” in risk assessments in sexually violent predator proceedings. Specifically, they found troubling relationships between the findings of these evaluators and those who retained them; that is, those hired by the defense were far more likely to view the evaluees as being at a lower risk whereas those retained by the government generally found their evaluees to be at greater risk for reoffending. Given our obligations to objectivity and scientific responsibility, such findings are troubling and bring into bold relief the operation of bias in professional decision making.

Conflict of Interest and Professional Boundaries A conflict of interest exists when “an individual’s personal interests would lead an impartial observer to question whether the individual’s professional actions or decisions are unduly influenced by consideration of significant personal interest” (Beauchamp & Childress, 2009, p. 314), and all psychologists have an obligation to avoid them (Standard 3.06, Conflict of Interest). The way in which such conflicts, or multiple relationships

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(Standard 3.05, Multiple Relationships), are avoided is by the maintenance of professional boundaries (see Gutheil & Gabbard, 1993). Such issues become extraordinarily important when functioning in public and under enhanced scrutiny. For example, having a working lunch with an attorney to discuss a case generally would be considered an appropriate boundary crossing (Smith & Fitzpatrick, 1995), whereas regularly working for an attorney who is also a personal friend could raise serious questions regarding the forensic psychologist’s objectivity. For these reasons, forensic psychologists are well advised to play one and only one role when becoming involved in legal matters or to notify parties if a role change is contemplated. (There are some exceptions to this general rule, but they are beyond the scope of this chapter.) For example, the distinction between the roles of treatment provider and forensic expert are now well established and considered to be standards because psychotherapists cannot be expected to adopt the neutral stance of forensic evaluators (e.g., Greenberg & Shuman, 1997; Strasburger, Gutheil, & Brodsky, 1997). Lawyers do not always understand the need for these distinctions; it is the forensic psychologist’s responsibility to explain such potential ethical conflicts and resist the temptation to fill both roles. Another source of conflict arises when forensic psychologists agree to consult to an attorney and agree to receive payment only if and when the case is settled favorably for the lawyer’s client. These arrangements are referred to as contingency fees since payment is made on the basis of a favorable outcome of the case. Because such agreements create an inherent conflict of interest, they are considered improper (Committee on Ethical Guidelines for Forensic Psychologists, 1991, IV.B). Lawyers are alert to potential conflicts of interest as it is a basic way in which to impeach adverse witnesses; even when only the appearance of a conflict arises, lawyers are quick to seize upon it. Because of the public nature of their work, forensic psychologists make every effort to avoid multiple roles and even the appearance of conflict of interest because failing to do so can seriously erode the credibility of one’s testimony and the view of the profession by the public.

Professional Responsibility Lawyers are trained to be advocates, and they typically choose a career path that creates certain alliances and precludes others. For example, plaintiff and defense lawyers and prosecutors and criminal defense lawyers all belong to different professional organizations and tend to reinforce each other’s views. This clearly is not the case for forensic psychologists who are committed to the advancement of scientific knowledge regardless of who may benefit from it in a legal dispute. At times, this perspective may be difficult for both litigants and lawyers to understand. The lawyers who appreciate this point of view often will say, “Just give me the good, the bad, and the ugly Doc. I need to know what I’m dealing with.” Conversely, some lawyers expect consultants to be “part of the team.” Such an expectation is reasonable when a forensic psychologist acts strictly in a consulting role, but it may not be appropriate for those who testify, as they are obligated to maintain scientific responsibility (Standard 2.04, Bases for Scientific or Professional Judgments) and present their data in an accurate, open, and objective manner (Standard 5.01, Avoidance of False or Deceptive Statements). Although the rules allow for such dual roles in military courts-martial, one’s fidelity to science remains the same. Fidelity to science is sometimes difficult for both lawyers and litigants to understand, especially in the heat of a legal dispute where the stakes can be high and tempers short. These circumstances can place great pressure on forensic psychologists to please those who are retaining them, and maintaining scientific responsibility in such circumstances often can be quite challenging. This is why testifying experts should be clear with attorneys as early as is feasible about what their data will and will not support. Those lawyers who respect what we do will appreciate our objectivity; those who do not will find others to help them. One way or another, responsible forensic psychologists understand that current scientific knowledge does not change to suit a particular party’s legal claim.

Resisting Ethical Compromise Clinicians find it necessary to set limits on others at some time or another, whether they are psychotherapy 111

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clients, family members, or institutions. In the legal context, improper requests are more likely to arise from judges and attorneys. In our experience, these demands arise for one of two reasons. First, either a judge or lawyer is ignorant of our rules and ethical responsibilities. In most cases, informing him or her of a relevant rule is generally sufficient to resolve the matter. For example, most plaintiffs’ lawyers appreciate an explanation about why one should not perform a forensic evaluation and treat the same individual, and most judges will understand why a custody evaluator should not also serve as a parenting coordinator. Unfortunately, such explanations are not always sufficient. Second, inappropriate demands can come from lawyers who do not understand or care about our rules. Although they certainly have the responsibility of advocating for their clients, some do not know when to stop. In these cases, forensic psychologists often can experience a great deal of pressure to accede to their demands. Such demands come in many forms, such as asking consultants not to keep notes because they could be unfavorable to the client. Another example arises when lawyers ask a psychologist to rewrite reports to be more favorable to their clients with an accompanying request to destroy the original document. Perhaps the most difficult situation is one in which an attorney asks a forensic psychologist to testify, often at the last minute, to matters for which there is no foundation or to misrepresent scientific evidence to help a client, with such appeals as “Doc, you’re part of the team. You gotta help me out or my guy’s going down,” or “My whole case depends on what you’re saying.” Some psychologists suggest that these problems can be avoided by clear informed consent agreements at the time of engagement. We agree that establishing the ground rules at the outset is important, and we recommend it. On the other hand, doing so should never lull one into a false sense of confidence that having to do so again will not be necessary. Lawyers are trained to be persuasive people, and when their persuasive abilities are aimed in our direction, they can be difficult to resist. When these situations arise, it is a forensic psychologist’s obligation to explain the nature of the conflict to the lawyer or the court,

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assert his or her loyalty to the Ethics Code (Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority) and respectfully decline to play conflicting roles. Case Example 11 Dr. Keepin’ It Straight was a well known and highly respected forensic psychologist in her community. She performed a child custody evaluation and appeared at court for the final hearing, expecting to testify regarding her findings. As she waited in the hallway, one of the lawyers approached her and asked her to come to the judge’s chambers where they were having a conference about the case. When she arrived, she was told by the Hon. Getit Off-My Docket that the lawyers had agreed to settle the case, and because Dr. Straight had done such a good job, Judge Docket was going to write an order appointing her as the family’s parenting coordinator. Dr. Straight appreciated the confidence that the court placed in her but respectfully refused to accept the assignment, noting that doing so required her to play multiple roles that could create a conflict. Some might argue that Dr. Straight was being too conservative and that given her knowledge of the family, she was in the best possible position to fulfill this new obligation. Although this may be true, Dr. Straight was also aware that in this highconflict situation, the family could well be back in court in the near future, and if so, she would no longer be able to play the evaluative role she had as the custody evaluator. Explaining such possibilities to the court, including the additional costs of a second custody evaluator, generally is sufficient to resolve the issue.

Record Keeping All practicing psychologists are expected to keep “pertinent records of professional services as appropriate to the circumstances” (APA, 2007, p. 995). However, because of the requirement of enhanced

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scrutiny, forensic psychologists have additional obligations in this regard. Forensic psychologists have an obligation to document and be prepared to make available . . . all data that form the basis of their evidence or services. The standard to be applied to such documentation or recording anticipates that the detail and quality of such documentation will be subject to reasonable judicial scrutiny; this standard is higher than the normative standard for general clinical practice [and forensic psychologists] . . . incur a special responsibility to provide the best documentation possible under the circumstances. (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI.B) This requirement sets a very high bar, but it is there for a reason. Case Example 12 Slow As Molasses was court ordered to contact Dr. I. M. Persnickety for an independent medical examination by a specific date. At the last possible moment, Molasses contacted Dr. Persnickety, who noted the date of contact in Molasses’s record. Clinicians seldom need to keep records at this level of detail, but Dr. Persnickety knew that if Molasses had not made the contact by the date ordered, he risked being held in contempt of court. Now, if Dr. Persnickety were ever asked if Molasses had contacted her as ordered, she would be able to assert that he had and that she had made a contemporaneous note to support her assertion. This example may seem trivial to some, but it focuses on the fact that one never knows what data will be important in a legal matter. Similarly, when forensic psychologists become involved in a legal matter, they can reasonably anticipate that at some point their records will be subpoenaed and thoroughly evaluated by the opposing party for any flaw, error, or omission that can possibly be

found. No one keeps perfect records, but forensic psychologists remain mindful of the reasonably foreseeable uses of them and are well aware of the need to maintain as complete and well-organized a record as possible CONTEMPORARY DEVELOPMENTS AND CONTROVERSIES Forensic psychology is a relatively new specialty, has developed at a rapid rate, and is not without its own controversies. In this section, we selectively highlight some recent developments and areas of controversy.

Emerging Scholarship One of the hallmarks of forensic psychology is its fidelity to science. We have noted that no one can remain current in all areas of forensic practice because the field is so broad. Furthermore, each of these areas is the subject of active scientific research by scholars. As a result, new science is being produced at a rapid rate, and a large number of scholarly journals publish articles with forensic implications. Some areas of active scholarship include the following: false confessions (e.g., Kassin et al., 2010), the effects of alcohol on memory (e.g., Soderlund, Grady, Easdon, & Tulving, 2007), juror decision making (e.g., Salerno & Bottoms, 2009), children’s memory (e.g., Melinder et al., 2010), eyewitness testimony (e.g., Leippe, Eisenstadt, & Rauch, 2009), the effects of social stereotypes (e.g., Espinoza & Willis-Esqueda, 2008), examiner bias (Schlesinger, 2003), malingering (e.g., Rogers, 2008), evolving conceptions of psychopathy (e.g., Boccardi et al., 2010), risk of future dangerousness (e.g., Quinsey, Harris, Rice, & Cormier, 2006), and intimate partner violence (e.g., Sheridan & Nash, 2007).

Alternative Dispute Resolution Alternative dispute resolution is an umbrella for a number of procedures designed to avoid litigation of civil and family matters. One of the best known and well established is that of mediation (for general reading, see Mosten, 1997). For example, when civil matters or child custody are to be litigated, many

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states require that the parties make good faith efforts to resolve their differences before going to trial. The idea of mediation is not new, but recent research has demonstrated that it can be quite effective not only at finding resolution of disputes but also reducing cost and leading to better outcomes for the parties involved (e.g., Emery et al., 2005). More recently, a movement referred to as collaborative law (CL; Abney, 2009) has offered another fascinating dispute resolution alternative. This model diverges from that of traditional mediation in a fundamental way. Mediation is legally protected such that, if it fails, the discussions, negotiations, and offers of settlement are never revealed. But mediation remains part of the adversarial process; CL is novel because it is nonadversarial. In this model, discovery is open, all information is shared, and the goal is to find a solution that will be in everyone’s best interest. This model had its beginnings in family law, but it also is expanding into the civil arena. In CL, the attorneys are trained in and committed to resolving disputes directly and openly, and if the parties eventually choose to litigate, the lawyers are required to withdraw and the parties must find new lawyers. Also, if the process fails, everything said is protected and cannot be used in later court proceedings. Forensic psychologists can play a number of roles in CL. Those who are trained mediators may play that role themselves. Sometimes they are considered part of the team and serve as a source of general professional knowledge, assisting the parties in resolving their differences. In other cases, they may serve as expert consultants regarding particular issues in dispute. For example, in a family law matter, the forensic consultant could advise parents regarding an optimal visitation schedule for very young children. Finally, they may serve as coaches to the parties or consultants to the attorneys. To our knowledge, participating in such procedures does not produce unique or problematic ethical issues so long as professional roles are clarified and the parties are provided with appropriate informed consent. Helping parties resolve their differences without litigation can be of great benefit and is a good example of working from the perspective of positive ethics. 114

Presence of Third Parties At times, forensic psychologists are asked if a third party can observe an evaluation. Such requests often come from attorneys who are concerned about preserving the rights of their clients. Such practices may be permitted under various state statutes, and when they are, ethical issues may arise. The first is whether the presence of a third party will in some way alter the process, thereby leading to results that are less sound. This is a reasonable assumption because interview and test data historically have been collected in a one-on-one format, and some research has supported this assumption (Binder & JohnsonGreene, 1995). Therefore, forensic psychologists would seem to be on solid ground by refusing such requests. Others seem to have little difficulty with such requests, noting that they are confident in their procedures and that the process would be the same regardless of whether an observer was present. An alternative proposed by some is to record interviews using video or audio. This seems to be an appealing alternative, but it has not been universally adopted and seems to be based on reasoning similar to those given for including third parties. A second and far more vexing issue arises in those cases in which neuropsychological testing is performed. The presence of observers during interviews poses no risk to the copyright of published test material, but observing the administration of various tests risks exposing test items to those who do not have an obligation to protect them. Such exposure could lead to misuse and ultimately to the test items being compromised. At this time, the standard is that “neuropsychologists should strive to minimize all influences that may compromise accuracy of assessment and should make every effort to exclude observers from the evaluation” (National Academy of Clinical Neuropsychology, 2000, p. 380; for further reading, also see Victor & Abeles, 2004).

Ultimate Issue Testimony When psychologists testify, they are qualified as experts, and this designation allows them to offer a variety of opinions based on the data they collected. As we have noted, they must offer such opinions based on good science and within their boundaries of competence. But since the inception of forensic

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psychology, questions continue regarding whether testifying experts should testify regarding the ultimate issue. In this regard, forensic psychologists often find themselves on the horns of a very difficult ethical dilemma because, with certain exceptions, doing so is allowed by the Opinion on Ultimate Issue (1984, pts. (a) and (b)). The ultimate issue is the one that finally must be answered by the trier of fact, either a judge or a jury. For example, is the criminal defendant guilty or not? Is the civil defendant liable or not? Some scholars have suggested that psychologists should not testify regarding the ultimate issue because doing so invades the province of the trier of fact and exceeds the competence of psychologists who are not qualified to make decisions regarding legal matters For example, Melton et al. (2007) advised that “mental health professionals ordinarily should refrain from giving opinions as to ultimate legal issues” (p. 17). At the same time, there is a concern among many that courts may wish to abdicate their responsibilities to forensic psychologists rather than making such decisions themselves (e.g., Melton et al., 2007, p. 135). Hence, many forensic psychologists find themselves in the position of feeling pressure to offer ultimate opinions, even when they might prefer not to do so, because failing to offer them could displease the court and have a significant impact on their livelihood. But things are not so simple. For example, there seems little controversy over forensic psychologists rendering opinions regarding competency to stand trial. This may be the case because the statutory language in a given state may be clear enough that the examiner can directly answer the question. On the other hand, decisions regarding custodial issues in family law matters are scientifically questionable, and some have suggested that custody evaluators resist the needs of the court and confine themselves to the data they collected, rather than opining regarding the ultimate issue (e.g., Tippins & Wittmann, 2005). At the same time, there are other situations in which there are clear prohibitions to testifying regarding the ultimate issue, such as whether a defendant did or did not have “mental state or condition constituting an element of the crime charged. . . . Such ultimate issues are matters

for the trier of fact alone” (Opinion on Ultimate Issue, 1984, pt. (b)).

Performing Competency and Sanity Evaluations Simultaneously After being arrested, defendants who exhibit signs of serious mental illness often are evaluated regarding their competency to stand trial. When they are judged to not be competent, they generally are sent for treatment so that their competency can be “restored.” In those cases in which an attorney might consider raising an insanity defense to the charged crime, it would be advantageous to him or her for the forensic psychologist to perform a sanity evaluation at the same time. This is desirable as the forensic psychologist would evaluate the defendant as close in time as possible to the alleged crime and be in the best position possible to evaluate the defendant’s condition as opposed to doing so retrospectively, often long after the events in question. Therefore, performing both evaluations would seem to be an appealing option, but an ethical dilemma arises if the defendant is not competent to consent to the sanity evaluation, even though doing so could be in his or her best interest. If the forensic psychologist is working for a defense lawyer, this issue may not be problematic because, if the two evaluations are performed and written separately, the attorney can protect an unfavorable insanity evaluation based on his or her work product privilege. On the other hand, if an evaluation is court appointed, some states do not allow a sanity evaluation if the defendant is not competent (e.g., Texas). In other states, such orders may be issued at the same time (e.g., Washington and Louisiana), whereas in other states, the law is silent on the issue (e.g., Oregon). (For further reading, see Packer, 2009.) Because it does not appear that a national standard regarding this matter will emerge in the near future, those who perform such evaluations are wise to determine the law in their local jurisdictions. RISK MANAGEMENT As the reader may surmise from what we have written, risk management for forensic psychologists in 115

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many ways does not differ from that of other professional psychologists (for further reading, see Bennett et al., 2006), but forensic psychologists take on additional obligations. Providing timely informed consent, maintaining competency, being professionally responsible, adhering to professional boundaries, keeping good records, consulting when needed, and being transparent are the sine qua non of this work. Nevertheless, some specific issues that may arise deserve attention. For example, is not unusual for attorneys to call forensic psychologists with little notice. Regardless of the reason that they do so, it is tempting to accept these assignments, especially when the lawyer offers a financial premium for responding quickly; but such temptations often should be resisted. On one hand, if the work is straightforward, the amount of time required to do it is fairly predictable, and the forensic psychologist has the time to complete it, accepting the assignment may be reasonable. However, forensic work is often highly labor-intensive and time-consuming, especially in cases that require consideration and substantiation of rival hypotheses. In our experience, the quality of one’s work suffers when sufficient time is not available to do a good job. Therefore, although it is appealing to accept these assignments, one must make a brutally realistic assessment of the nature of the task and the resources needed to complete it before agreeing to accept it as great harm can come from hasty decisions. A second area of risk entails fee arrangements. Generally, forensic psychologists work on a retainer basis, and this is well understood by the attorneys for whom they work. Unfortunately, things do not always work out as planned. In some cases, those forensic psychologists, whose skills do not lie in bookkeeping, will lose track of the fact that they are no longer working from the retainer and neglect to notify the lawyer. Generally, this is not problematic because the lawyer can replenish the retainer, and the work can go on. But if, unbeknownst to the forensic psychologist, the lawyer’s client does not have adequate funds to replenish the retainer, and it is time for trial, the attorney may try to persuade the forensic psychologist to accept a payment plan over some longer period of time. Even if this is done in good faith, it is imprudent for the forensic psychologist to do so 116

for two reasons. First, if the litigant does not prevail, the psychologist may not be paid. Second, testifying experts are invariably asked how much they have been paid for their work in a case. If they are owed money, the appearance of a conflict of interest inevitably arises. Such practices do not reflect well on the profession or the expert. A related problem surrounds contingency fees. The Ethics Code does not address this issue specifically (Standard 6.04, Fees and Financial Arrangements), but the Specialty Guidelines for Forensic Psychologists do: Forensic psychologists do not provide professional services to parties to a legal proceeding on the basis of contingent fees, when those services involve the offering of expert testimony to a court or administrative body, or when they call upon the psychologist to make affirmations or representations intended to be relied upon by third parties. (Committee on Ethical Guidelines for Forensic Psychologists, 1991, IV(B)) This language is unambiguous, yet we are aware of colleagues who accept various types of delayed payment. Regardless of the financial merits of doing so, making such agreements reflect poorly on the profession. Third, at times, forensic psychologists will be asked to testify about persons they have not evaluated. The Specialty Guidelines for Forensic Psychologists states, Forensic psychologists avoid giving written or oral evidence about the psychological characteristics of particular individuals when they have not had an opportunity to conduct an examination of the individual adequate to the scope of the statements, opinions, or conclusions to be issued. Forensic psychologists make every reasonable effort to conduct such examinations. When it is not possible or feasible to do so, they make clear the impact of such limitations on the reliability and validity of their professional

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products, evidence, or testimony. (Committee on Ethical Guidelines for Forensic Psychologists, 1991, VI(B)) Also see Standard 9.01(b), Bases for Assessments, for similar language in the Ethics Code. Although this standard appears to be fairly clearcut, at least two issues arise. First, how is one to define “reasonable effort“? We know of no ethical standard, rule, or case law that can provide us guidance regarding this question. Hence, the forensic psychologist must decide when the efforts they have made have been sufficient to meet this standard. Because the guideline allows for forensic psychologists to testify about persons that have not been evaluated, so long as they disclose that fact and appropriately limit their testimony, some may be tempted to hastily retreat to this position rather than making the reasonable efforts required. In a spirit of positive ethics, however, we find doing so undesirable. Providing testimony in this manner raises an additional potential problem. We do not know what the impact of making appropriate disclosures and stating the limitations of one’s testimony is on the trier of fact. Logically, such disclosures would prompt jurors or the court to place less weight on the expert’s testimony. But, this may not necessarily be the case as preliminary data suggest that making such disclosures actually may enhance the credibility of the witness (Cain, Loewenstein, & Moore, 2005). Our view is that most forensic psychologists generally practice good risk management and seldom are sued or have their licenses attacked. But, there appear to be two situations in which this is not the case. The first involves those who become involved in legal matters and are inexperienced or untrained, such as Dr. Agenda in Case Example 3. Such persons may err based on good intentions, but they can cause a great deal of harm, and when they do, license complaints often follow. (More information on professional liability and risk management can be found in Volume 1, Chapter 19, this handbook.) The second area of vulnerability arises in the context of child custody evaluations in which one party is likely to be upset with the evaluator’s findings. Although it is true that this role generates the most complaints to licensing

boards for forensic psychologists, the frequency of findings of violation is rather low (for further reading see Bow, Gottlieb, Siegel, & Noble, 2010). WHAT IF I’M NOT A FORENSIC PSYCHOLOGIST? The majority of this chapter has been devoted to the work of forensic psychologists, but most psychologists do not make this career choice and generally prefer to avoid becoming involved in legal disputes. Unfortunately, this is not always possible. In the 21st century, it is not uncommon for a variety of practitioners from different specialties (e.g., clinical neuropsychology, health psychology, rehabilitation psychology, family psychology, and individual therapists who specialize in certain areas such as trauma and children) to become involved in legal issues despite their preference to avoid them. In this section, we address some of the most common issues that may arise and explain how practitioners may respond in ways that maintain good clinical care, are ethically appropriate, and represent good risk management. First, we review the process for responding to subpoenas and then address the issues involved in compelled testimony. (For further reading, see Committee on Legal Issues, 1996; Gottlieb, Lasser, & Simpson, 2008.)

Responding to Subpoenas Sooner or later, most clinicians are likely to receive subpoenas for their records or to appear in court regarding a patient who is involved in a legal dispute. Perhaps the most important issue for those who receive subpoenas is to remember that releasing information without a patient’s permission may expose them to both licensing board complaints and civil suits for violating their confidentiality (Standard 4.01, Maintaining Confidentiality). What we discuss next should be considered general advice; because laws can vary widely across states, the reader is well advised to consult a local attorney familiar with the rules under which psychologists function. Upon receipt of a subpoena, the first thing to determine is whether the patient has signed a release (or what in legal terms is referred to as a waiver) giving the clinician permission to release the information 117

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to the person who has subpoenaed them. Even when such a release is enclosed, it is prudent for the clinician to call the patient, explain the nature and content of the information to be released, and seek his or her permission to provide it. In this way, the clinician ensures that the patient has been fully informed regarding the advantages and disadvantages of doing so consistent with principles of informed consent (Standard 3.10, Informed Consent). When no release is included, the practitioner should contact the sender of the subpoena, who usually is a lawyer, and respectfully decline to release the information, explaining that no release was attached to the subpoena. Making a note of this communication in the record is needed, and it is wise to follow up with a letter to the requesting attorney, reminding him or her of the telephone conversation and restating the reason for refusing to release the records. For those who are reluctant to deal with attorneys directly, mailing or faxing a letter to that effect is also acceptable. One way or another, without a release, the practitioner should provide no information to the attorney. For example, one might say, “I’m sorry, but absent a competent waiver [the legal term for a release], I am unable to tell you whether the person named in the subpoena is or ever was a client of mine” (Gottlieb et al., 2008, p. 712). Or, one might respond, “Please be advised I cannot release patient information without a release from the patient or a court order.” The attorney generally will understand that refusal represents adherence to the practitioner’s confidentiality obligation and accept the explanation. If enclosing the release was an oversight, it soon will follow. If not, the clinician should do nothing further, other than notifying the patient of the action taken. If permission is received, and the patient also has given the practitioner verbal permission to speak with the attorney, the psychologist should call the attorney and offer his or her cooperation as the patient requested. Before simply sending the entire record, it is advisable to determine what information the lawyer seeks. For example, he or she may want only certain information that the clinician can easily provide verbally. In this situation, it may not be necessary to send the entire record, and the patient’s 118

privacy can be respected to the maximum degree possible. If the attorney requests the entire file, the clinician should make the lawyer aware that compliance with this request may present certain risks to the patient. For example, the record may contain personal or sensitive information that is not relevant to the legal matter. In such cases, the attorney should be made aware of such information in the hope that it can be protected. Sometimes attorneys may ask for a simple letter summarizing the treatment. If the practitioner agrees to provide it, she or he should do so under the assumptions that, at some point, the opposing counsel will request the entire record. Finally, lawyers often ask questions that clinicians cannot answer. For example, the lawyer may ask an individual therapist whether he or she thinks that the lawyer’s client is the better parent. Unfortunately, some clinicians, such as Dr. Agenda in Case Example 3, out of a boundless desire to help or ignorance, answer such questions, even though they should not do so (Standard, 2.01, Boundaries of Competence).

Compelled Testimony We contend that it is rarely if ever helpful, and potentially harmful, for a clinician to testify regarding a psychotherapy patient even when given permission to do so. (For an opposing view see Heltzel, 2007.) The chances for harm only increase when testimony is compelled. This is so for at least three reasons. First, the clinician will most certainly be asked to provide sensitive and personal information about the patient in a public forum that was disclosed in confidence. At a minimum, doing so can be embarrassing if not humiliating for the patient. Second, clinicians do not simply record what patients tell them. Rather, they are inclined to record various things such as diagnostic impressions, theoretical assumptions, rule-out diagnoses, and alternative treatment plans. Patients often are unaware of this information, and sometimes clinicians judge that providing it will not be helpful to them. Unfortunately, this information is most likely to be revealed in a court proceeding, and we cannot imagine how doing so would be helpful to patients or the therapeutic alliance. Third, a patient may

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want the psychologist to testify even if she or he has nothing material to offer. When lawyers accede to their client’s request to subpoena the practitioner, risk can arise. This is especially so if the clinician has information that, even if only slightly, contradicts certain facts that are already in evidence. We should note at least one exception to our caution. For example, in a personal injury case, a practitioner may have seen a plaintiff before the alleged injury and could testify that she or he was discharged and was doing well before the events in question. Such testimony would bolster the plaintiff’s claim that the damages were cause by the defendant. When a clinician is required to testify regarding a patient, we recommend the following steps in an effort to minimize the potential damage to the therapeutic relationship. First, determine from the lawyer what questions are going to be asked both on direct and cross-examination. Second, meet with the patient beforehand and review the potential testimony with him or her. Third, no matter how sensitive or caring a clinician may be on the witness stand, we have every reason to believe that patients will be distressed by their testimony. Therefore, we recommend that the clinician schedule a debriefing with the patient as soon as is practically possible to discuss what was said and to repair potential breaches in the relationship (for further reading see Gottlieb et al., 2008). Finally, clinicians should be clear with patients about fees as early as is feasible in this process. Clearly explaining costs, how they will be assessed, and receiving payment in advance are necessary. Because of these vexing dilemmas, many practitioners ask whether they can stay out of court altogether. The answer is probably not, but this does not mean that one cannot significantly reduce the likelihood of having to do so. Careful patient selection is a must, but even the most thorough screening will not be sufficient to preclude such eventualities. As part of the intake or initial screening, one should ask every new patient if she or he currently is or anticipates becoming involved in litigation. An additional strategy would be to include language in one’s informed consent noting that the clinician does not offer expert testimony. Having patients sign such a

document raises the question of whether they may waive such future rights. Whether this ultimately will be the case in any given situation remains to be seen, but for those who wish to add such language, we recommend they consult with a local attorney knowledgeable regarding these issues. In other situations, patients may arrive claiming that the court has ordered the clinician to be their therapist. While this may be technically correct, the clinician is not bound by such an order and is free to accept or reject the case. If the psychologist refuses to accept the case, it is prudent to respectfully inform the person’s lawyer or the court of this decision and why the referral was rejected. CONCLUSION We believe that Professor Munsterberg would be pleased to know that courts have come to rely on knowledge from psychological science to a degree that he never could have imagined. Forensic psychology is now in a position to be extraordinarily beneficial to the legal system by bringing the best contemporary psychological science to the process of resolving legal disputes. At the same time, the vast majority of professional psychologists are not trained to do this work. Many find it unappealing and avoid becoming involved in legal issues whenever possible. A recent article that addressed this issue was entitled “Playing in Their Sandbox” (Greenberg, Gottlieb, & GouldSaltman, 2008). Although the title may be lighthearted, the point is unmistakable. Forensic psychology is a well-established specialty within the profession and requires extensive training and experience. Those who become involved simply because they feel the need to do the right thing, correct an injustice, or inappropriately advocate for a therapy patient do so at the risk of causing more problems than they solve. Despite the fact that these feelings are based on good intentions, they should be resisted; when they are, everyone benefits. On the other hand, forensic psychology can benefit from a thoughtful consideration of positive ethics (Handelsman et al., 2002). It is easy to simply do as an attorney or the court asks without considering the wider implications of our actions. But, forensic 119

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psychology represents the profession in a public forum, and we are judged by what is said in court and afterward to the press. In our view, forensic psychologists have a particular obligation to put their best foot forward in such situations. In this regard, remaining mindful of positive ethics would be most helpful.

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CHAPTER 7

SCHOOL PSYCHOLOGY Susan Jacob and Megan M. Kleinheksel

School psychologists are professionals who provide educational and mental health services to children and youth, as well as work with parents, educators, and other professionals, to help youth succeed academically, socially, behaviorally, and emotionally, and who work to foster supportive learning environments for all schoolchildren (National Association of School Psychologists [NASP], 2010, Introduction). As of 2008, there were approximately 35,400 credentialed school psychologists in the United States (Charvat, 2008). Most are employed by the public schools (about 80%), but some work in private schools, mental health agencies, correctional facilities, hospitals, private practice, or other settings. The majority of school-based practitioners were trained at the specialist-degree level; about 24% hold a doctoral degree (Curtis et al., 2008). This chapter addresses professional ethics in the field of school psychology, with a focus on the special challenges associated with school-based practice. We first discuss codes of ethics that provide guidance to school psychologists. Because public education is highly regulated by law, we next summarize the legal underpinnings of schoolbased practice and the ethical–legal issues associated with consent, confidentiality, privilege, record keeping, and assessment and intervention in the schools. Examples of ethically challenging situations experienced by school-based practitioners are then discussed. Throughout the chapter, differences between school-based practice and the delivery of psychological services in nonschool settings

(e.g., private practice) are noted, with the goal of promoting positive collaboration between schooland community-based mental health providers. CODES OF ETHICS Two professional associations, the American Psychological Association (APA) and the NASP, have shaped the development of the field of school psychology. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) was developed for psychologists with training in diverse specialty areas. In contrast, NASP’s Principles for Professional Ethics (the NASP-PPE; NASP, 2010) was developed specifically to address ethical issues associated with the provision of school psychological services. Because our focus is on school-based practice, greater attention is given in this chapter to the standards outlined in NASP’s code of ethics than APA’s code. School-based practice is defined as “the provision of school psychological services under the authority of a state, regional, or local educational agency” whether the school psychologist “is an employee of the schools or contracted by the schools on a per-case or consultative basis” (NASP, 2010, Definitions). However, school psychologists should be thoroughly familiar with the NASP-PPE and the Ethics Code, whether or not they are members of a professional association. A psychologist with a broad knowledge base of ethical principles and standards may be able to anticipate and prevent ethical

The authors are not attorneys, and the information provided should not be construed as legal advice. DOI: 10.1037/13272-007 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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dilemmas from occurring and is better prepared to make sound choices when challenging situations arise. In addition, regardless of association membership or level of training, trainees and practitioners may be expected to know and abide by both the Ethics Code and NASP-PPE in their work setting (Flanagan, Miller, & Jacob, 2005). Finally, state licensing boards may require adherence to a professional code of ethics as part of their regulatory standards, and in those states, ethics code violations can result in denial or loss of practice credentials (Koocher & Keith-Spiegel, 2008). School psychologists also face possible denial or loss of the National Certificate in School Psychology for violations of the NASP-PPE (NASP, 2007). NASP-PPE was first adopted in 1974 and revised in 1984, 1992, 1997, 2000, and 2010 (see Williams, Armistead, & Jacob, 2008, for a history of the code). The NASP-PPE emphasizes protecting the rights and interests of schoolchildren. The code is organized around four broad aspirational themes: “Respecting the Dignity and Rights of All Persons”; “Professional Competence and Responsibility”; “Honesty and Integrity in Professional Relationships”; and “Responsibility to Schools, Families, Communities, the Profession, and Society.” These themes were derived from the literature on ethical principles (e.g., Bersoff & Koeppl, 1993; Prilleltensky, 1997; Ross, 1930) and other codes of ethics, especially that of the Canadian Psychological Association (CPA, 2000). The four broad themes subsume 17 ethical principles, and each principle is then further articulated by specific standards of conduct. The “broad themes, corollary principles, and ethical standards are to be considered in ethical decision making” (NASP, 2010, Introduction). However, the broad theme statements are aspirational; NASP will seek to enforce only the 17 ethical principles and associated standards of conduct (NASP, 2010, Introduction). FOUR BROAD ASPIRATIONAL THEMES School psychologists “are committed to the application of their professional expertise for the purpose of promoting improvement in the quality of life for students, families, and the school community” (NASP, 126

2010, Introduction) and they pursue this objective only in ways that protect the dignity and rights of all persons (NASP, 2010, Introduction; also APA, 2010, General Principle A). The interests and rights of children and youth are considered to be the highest priority in decision making (NASP, 2010, Introduction).

Respecting the Dignity and Rights of All Persons NASP’s first broad theme states, “In their words and actions, school psychologists demonstrate respect for the autonomy of persons and their right to self-determination, respect for privacy, and a commitment to just and fair treatment of all persons.” Under this theme, NASP’s code has specific principles and standards for respecting autonomy and self-determination (consent and assent; NASP, 2010, I.1), privacy and confidentiality (NASP, 2010, I.2), and fairness and justice (NASP, 2010, I.3). This portion of the code also addresses several emerging ethical issues, such as providing consultative services in the classroom (not within the context of a psychologist– client relationship), respecting privacy rights with regard to sensitive student health information and sexual orientation and transgender status, and providing effective services for all persons regardless of their cultural and experiential background and individual characteristics.

Professional Responsibility and Competence Beneficence, or responsible caring, means that psychologists engage in actions that are likely to benefit others, or at least will do no harm (CPA, 2000; Kitchener, 2000; also see APA, 2010, General Principle A; NASP, 2010, II). According to the NASP, “to do this, school psychologists must practice within the boundaries of their competence, use scientific knowledge from psychology and education to help clients and others make informed choices, and accept responsibility for their work” (NASP, 2010, II). Under the second aspirational theme, NASP’s code has specific principles and standards pertaining to professional competence and maintaining competence (NASP, 2010, II.1) and accepting responsibility for actions (NASP, 2010, II.2), including the obligation to monitor the effectiveness of services

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provided and to take steps to correct any ineffective recommendations. Responsible assessment and intervention practices (NASP, 2010, II.3), schoolbased record keeping (NASP, 2010, II.4), and ensuring the proper use of assessment and intervention materials (NASP, 2010, II.5) also are addressed under the second broad theme.

Honesty and Integrity in Professional Relationships A psychologist–client relationship is a fiduciary relationship, that is, one based on trust. The third broad theme in NASP’s code states, To foster and maintain trust, school psychologists must be faithful to the truth and adhere to their professional promises. They are forthright about their qualifications, competencies, and roles; work in full cooperation with other professional disciplines to meet the needs of students and families; and avoid multiple relationships that diminish their professional effectiveness. (NASP, 2010, II) Four enforceable principles (NASP, 2010, III.1–III.4) are nested under the third broad theme, along with specific standards that clarify how the four principles apply to professional practices.

Responsibility to Schools, Families, Communities, the Profession, and Society School psychologists have a responsibility to foster the well-being of individual students, but also to use their professional knowledge to help create healthy, safe, and caring environments for children and families (Prilleltensky, 1991; also see CPA, 2000; APA, 2010, General Principle B). NASP’s fourth broad theme (NASP, 2010, IV) includes principles and standards for promoting healthy school, family, and community environments (NASP, 2010, IV.1); respecting law and the relationship of law and ethics (NASP, 2010, IV.2); maintaining public trust by self-monitoring and peer monitoring (NASP, 2010, IV.3); advancing the profession by mentoring, teaching, and supervision (NASP, 2010, IV.4); and contributing to the school psychology knowledge base (NASP, 2010, IV.5; also see Jacob, Decker, & Hartshorne, 2011).

LEGAL REGULATION OF SCHOOL-BASED PRACTICE For school-based practitioners, knowledge of school law pertinent to the provision of school psychological services “is one way to enhance opportunities for implementing best professional practices” (Reschly & Bersoff, 1999, p. 1077; also see Case Examples 1 and 2). For psychologists employed in nonschool settings, understanding the legal regulation of school-based practice hopefully can improve communication and collaboration between school- and community-based practitioners (see Table 7.1). The 10th Amendment of the U.S. Constitution is interpreted as prohibiting Congress from establishing a nationalized education system. State governments have assumed the duty to educate children and the power to do so (Hubsch, 1989). The primary mission of public schools is to educate children, maintain order, and ensure pupil safety (Burnside v. Byars, 1966; NASP, 2010, Introduction). The authority to educate children and ensure pupil safety is further delegated by state governments to local school boards. When school psychologists employed by a school board make decisions in their official roles, such acts are seen as an extension of the authority of state government; in legal parlance, school-based practitioners are considered to be state actors. As state actors, school-based practitioners must know and respect the legal rights of schoolchildren and their parents. Furthermore, as employees of a school board, school-based practitioners have a legal obligation to protect all students from reasonably foreseeable risk of harm (Russo, 2006).

U.S. Constitution The three basic sources of public school law are the U.S. Constitution, statutes and regulations, and case law (Russo, 2006). No fundamental right to an education is guaranteed to citizens in the U.S. Constitution (San Antonio Independent School District v. Rodriguez, 1973). However, state public education laws and school district policies are subject to the provisions of the Constitution. For this reason, the Constitution has been the foundation for many decisions affecting education, including the right to equal educational opportunity for all children and 127

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TABLE 7.1 Improving Communication and Collaboration Between School-Based School Psychologists and Nonschool Mental Health Professionals School-based practice of school psychology

Practice in community-based mental health care settings

Primary mission of schools is to educate students.

Primary mission is improved mental health.

FERPA safeguards the privacy of elementary and secondary student education records, including school psychological records, and ensures parent access to the education records of their own child. Student education records are accessible to school staff with “legitimate educational interest” in the child and are not privileged. Confidential communications within the context of a school psychologist–client established relationship may or may not be privileged under state law.

HIPAA protects the privacy of patient health and mental health records and includes rules addressing electronic storage and transmission of private health information. Communications within an established professional relationship between a licensed doctoral-level psychologist and client are privileged under state laws. Unlike FERPA, HIPAA requires training of staff members who manage protected health information.

School-based psychologists conduct psychoeducational evaluations to assist in determining whether a student has a disability as defined by IDEA or Section 504/ADAA. A student’s eligibility, disability classification under IDEA, and educational interventions are determined by a team of persons that includes the parents.

Community-based psychologists typically assess and diagnose youth using the DSM–IV–TR and may render a diagnosis based solely on their own assessment findings.

To be eligible for special education and related services under IDEA Part B, a student must have a disability as defined in 1 of 13 categories and he or she must need special education and related services because of that disability.

Under federal law, a DSM–IV–TR diagnosis is neither necessary nor sufficient to determine eligibility under IDEA.

The IDEA Part B definition of emotional disturbance focuses on overt and observable characteristics, resulting in a need for data based on classroom observations and behavior rating scales or checklists.

Findings from projective techniques may support a diagnosis rendered by a psychologist or psychiatrist. However, projective test results alone do not provide sufficient documentation of student eligibility for special education under the IDEA Part B definition of emotional disturbance.

A public school may not label a child as “emotionally disturbed” without some sort of fair decision-making procedure that includes parent notice of the proposed classification and the right to challenge the classification.

Psychologists in private practice may render a diagnosis of a child as having a mental disorder without providing his or her parents prior notice of the proposed diagnosis and a right to challenge the diagnosis.

To receive IDEA funds, states must prohibit school personnel from requiring parents to obtain a prescription for a controlled substance as a condition of attending school (34 C.F.R. 300.174). For this reason, some school districts prohibit employees from suggesting psychopharmacological treatment of a student to a parent.

Psychologists in community-based practice are not restricted from recommending psychopharmacological treatment of a child to the parent.

As school employees, school-based practitioners have a duty to protect all students from reasonably foreseeable risk of harm to self or others. Schools must contact parents if it is suspected that a student is suicidal and adhere to district protocols for determining whether a student poses a threat to others.

Community-based mental health providers likely have more professional discretion in duty to protect situations. Some, but not all, states have enacted laws requiring psychologists to make reasonable efforts to warn potential victims of violent crimes.

Under FERPA, parents have access to the school psychological education records of their own high school student after he or she reaches the age of majority as long as the student is a dependent as defined by tax laws. For this reason, school-based practitioners may need to refer students seeking treatment on their own (without parent consent) to community-based sources of assistance.

Depending on the state where they practice, community-based health and mental health providers may be permitted to treat minors for certain conditions independent of parent notice or consent, with the minor’s treatment records considered to be privileged and under his or her own control.

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TABLE 7.1 ( Continued ) Improving Communication and Collaboration Between School-Based School Psychologists and Nonschool Mental Health Professionals School-based practice of school psychology

Practice in community-based mental health care settings

Community-based mental health providers are usually Because they are employed under the authority of the state’s credentialed by a state licensing board. Licensure department of education, school-based practitioners usually are requirements typically include supervised experience in a credentialed by the state’s department of education. Certification health or mental health care setting. or licensure requirements typically include supervised experience in a school setting. Depending on the state where he or she is employed, schoolbased practitioners may be immune from civil liability under state law during the performance of their duties within the scope of their employment. Malpractice suits against schoolbased psychologists are rare. However, they often are required to defend their assessment and intervention practices in administrative hearings under IDEA or Section 504.

Under state statutory or common law, professional malpractice suits may be filed by clients against private practitioners.

Note. FERPA = Family Education and Rehabilitation Act of 1974; HIPAA = Health Insurance Portability and Accountability Act of 1996; DSM–IV–TR = Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision); IDEA = Individuals With Disabilities Education Improvement Act of 2004; Section 504/ADAA = Section 504 of the Rehabilitation Act of 1973/Americans With Disabilities Act Amendments (2008).

student rights in the school setting (e.g., freedom of speech, privacy rights). The equal protection clause of the 14th Amendment provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.” Beginning in the 1950s, this clause has been interpreted to mean that a state may not make a free public education available to some children but not to others in the state, and that state governments must provide equal educational opportunity to all schoolchildren within its jurisdiction regardless of race, color, national origin, gender, or disability (e.g., Brown v. Board of Education, 1954; Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 1971, 1972). The 14th Amendment also provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Substantive due process applies to the content of a law. In the public schools, substantive due process has been interpreted to mean that school rules restricting student constitutional freedoms must be reasonably related to the purpose of schools (e.g., Tinker v. Des Moines Independent Community School District, 1969). Procedural due process means that a state may not take

away life, a liberty interest, or a property right without some sort of procedural fairness to safeguard citizens from unfair or wrongful infringement of rights by the government (Reschly & Bersoff, 1999). In Goss v. Lopez (1975), the Supreme Court held that education is a property right protected by the 14th Amendment, and that schools may not suspend or expel children from school (and therefore deprive them of their property interest) without some sort of fair, impartial due process procedures that include notice and the opportunity to be heard. The due process clause also protects citizens from unwarranted stigmatization by the state that could interfere with the ability to acquire property (Wisconsin v. Constantineau, 1971). A public school may not label a child as “emotionally disturbed” or “mentally retarded” without due process, that is, some sort of fair decision-making procedure that includes parent notice of the proposed classification and the right to challenge the classification.

Federal Statutory Law Because education is a duty left to state governments, most public school laws are enacted at the state level. However, the U.S. Congress has the power to shape 129

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education policy and practices by offering monies to states contingent on compliance with federal law. Some federal education legislation is grant legislation; that is, funds are provided to states on the condition that schools comply with certain education policies. The Individuals With Disabilities Education Improvement Act of 2004 (IDEA, 2004) is an important example of this type of legislation. Other federal education legislation stipulates that no federal funds will be made available to schools unless they adhere to specific policies outlined in the law. The Family Educational Rights and Privacy Act of 1974 (FERPA, 1974) is an example of this type of legislation. Congress also has enacted civil rights legislation that prohibits state and school authorities from discriminating against individuals on the basis of race, color, or national origin; gender; or disability in any program or activity receiving any federal funding. These laws also protect students from harassment on the basis of those characteristics. Schools must comply with antidiscrimination legislation if they receive any federal funds for any purpose. Section 504 of the Rehabilitation Act of 1973 (Section 504) is an example of antidiscrimination legislation. School-based practitioners also must be familiar with Section 1983 of the Civil Rights Act of 1871. Under Section 1983, any person whose constitutional rights (or rights under federal law) have been violated by a government officials (including state actors, such as public school principals and school psychologists), may be held personally liable for damages in federal court. INFORMED CONSENT, CONFIDENTIALITY, PRIVILEGE, AND RECORD KEEPING Ethical issues pertaining to a school psychologist’s many roles include respecting and safeguarding privacy rights, ensuring that students and others with whom they work have a voice in decisions that affect them, and engaging in responsible record keeping.

Informed Consent Codes of ethics and law show agreement that, with the exception of urgent situations, informed 1

consent should be obtained to establish a school psychologist–client professional relationship. In the school setting, consent to establish a professional relationship typically is sought from the parent1 or guardian of a minor child or from the student if an adult. Like nonschool practice settings, the individual providing consent must be given sufficient information to make an informed choice about whether to accept the services offered, consent must be voluntary, and the parent must be allowed to withdraw consent at any time without negative repercussions. Also, practitioners recognize that consent is an ongoing process, requiring additional discussion with the individual who provided consent if there is a significant change in the previously agreed on assessment or intervention goals or procedures (APA, 2010, General Principle E; Standard 3.10, Informed Consent; Standard 3.11, Psychological Services Delivered to or Through Organizations; also see IDEA, 2004; Jacob et al., 2011; NASP, 2010, I.1). For school-based practitioners, the decision whether to allow a child the opportunity to choose (or refuse) school psychological services independent of the parent’s wishes can be ethically challenging. The NASP-PPE states, “Ordinarily, school psychologists seek the student’s assent to services; however, it is ethically permissible to by-pass student assent to services if the service is considered to be of direct benefit to the student and/or is required by law” (NASP, 2010, I.1.4). If a student’s assent for services is not solicited, school psychologists nevertheless inform students about the nature and scope of services to be provided. Also, when a child is given a choice regarding whether to accept or refuse services, the school psychologist ensures the student understands what is being offered, honors the student’s stated choice, and guards against overwhelming the student with choices he or she does not wish or is not able to make. (NASP, 2010, I.1.4; also see Jacob et al., 2011)

Hereafter the term parent will be used to refer to the individual who has the authority to make decisions and can include the natural or adoptive parent, an individual acting in the place of a parent such as a stepparent or domestic partner, or an adult student acting on his or her own behalf.

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School psychologists “encourage and promote parent participation in school decisions affecting their children” (NASP, 2010, I.1.1). However, as one of the members of a school’s instructional support staff, school-based practitioners also provide consultative services to student assistance teams and in classrooms that do not fall within the scope of a psychologist–client professional relationship. Ethically and legally, school-based consultative services do not require informed parent consent if the resulting interventions are under the authority of the teacher, within the scope of typical classroom interventions, and are not intrusive of pupil or family privacy beyond what might be expected in the course of ordinary school activities (Burns, Jacob, & Wagner, 2008; Corrao & Melton, 1988; IDEA, 2004; NASP, 2010, I.1.1). In addition, many school districts have policies that allow children to be seen by school health or mental health professionals without parent consent for one or several meetings to ensure that the student is not in danger (e.g., child abuse) or a danger to self or others. However, in schools, when minors self-refer for assistance, parent consent typically is sought to provide continuing psychological services to a child after it is determined that the student is not in danger (NASP, 2010, I.1.2). In contrast, under federal and state law, community-based providers may be permitted to treat minors for certain health and mental health conditions (e.g., mental illness, drug and alcohol abuse, pregnancy management, treatment of sexually transmitted diseases) independent of parent notice or consent, with the minor’s treatment records considered to be under his or her own control (Boonstra & Nash, 2000). For this reason, school-based practitioners at times may need to refer students who desire assistance without parent involvement to community-based providers.

Confidentiality Confidentiality is “an explicit promise or contract to reveal nothing about an individual except under conditions agreed to by the source or subject” (Siegel, 1979, p. 251). Although primarily a matter of professional ethics, in some states, psychologists can be held civilly liable under state law for impermissible

breach of client confidentiality. With the exception of urgent situations, school psychologists define the parameters of confidentiality at the outset of establishing a school psychologist–client professional relationship (APA, 2010, General Principle E; Standard 4.02, Discussing the Limits of Confidentiality; also see NASP, 2010, I.2.3). When working with students, the parameters of the promise of confidentiality will vary depending on the age and maturity of the student, the reason for referral, and the nature of the services offered (e.g., individual counseling, assessment, and intervention for learning or behavioral problems; Jacob et al., 2011). Whatever the parameters, the circumstances under which the school psychologist might share confidences with others must be clear (Fisher, 2008; Koocher & Keith-Spiegel, 2008). If information learned within a school psychologist–client relationship is shared with third parties, such information is disclosed only on a need-to-know basis (NASP, 2010, I.2.5). Furthermore, only information necessary for communicating and resolving a student’s difficulties in the school setting is disclosed internally to other school staff (Fisher, 2008; also APA, 2010, General Principle E; Standard 4.04, Minimizing Intrusions on Privacy; Standard 4.05, Disclosures; NASP, 2010, I.2; Schwab & Gelfman, 2005). It is critically important for school-based psychologists to discuss confidentiality and its limits with parents when seeking consent to provide ongoing counseling to a minor. Because parents have access to all school psychological records of their child as defined by FERPA (1974), they also may feel entitled to know everything their child discloses to the school psychologist. The practitioner must explain to parents why a promise of confidentiality to the child can be essential to an effective helping relationship and seek parent understanding and agreement that the school psychologist will not disclose specific confidences shared by the child to the parent without the child’s assent to do so. Parents need to be reassured, however, that the practitioner will let them know what they can do to help their child and that he or she will inform them immediately if there is a serious situation, such as one suggesting their child is in danger (Jacob et al., 2011; NASP, 2010, I.2.4). 131

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When school psychological services are provided within the context of an established psychologist– client relationship, there are several situations in which a school psychologist may be obligated to share confidential communications revealed in that relationship with third parties. Like psychologists in nonschool settings, school-based practitioners have a mandatory duty to report suspected child abuse to a child protection agency. Depending on state law, psychologists in nonschool settings may, or may not, have a legal duty to breach confidentiality to protect a client or others from danger. In contrast, in school-based practice, confidential information must be disclosed to others as a necessary to safeguard schoolchildren from reasonably foreseeable risk of harm2 (NASP, 2010, Introduction; Russo, 2006; Schill, 1993). Reasonably foreseeable risk of harm is a less stringent standard for breach of confidentiality than clear or imminent danger, terms often used in state laws regulating mental health providers. In addition, courts have ruled that schools must contact parents if it is suspected that a student may be suicidal (e.g., Eisel v. Board of Education of Montgomery County, 1991; Jacob, 2009). School-based practitioners also are required to adhere to district procedures for determining whether a student poses a threat to others and for warning potential victims of targeted violence. (More information on responding to threats of harm can be found in Volume 1, Chapter 14, this handbook.) In a survey of NASP school psychology practitioners, Dailor and Jacob (in press) found that within the previous year, about one fourth of 208 respondents had experienced the dilemma of deciding what information to disclose to the parents of a minor who is engaging in risky behavior. Although limited research is available, school psychologists’ decisions to report a minor student’s risky behavior to a parent is likely influenced by the age and maturity of the child; the frequency, duration, and intensity of the behavior (e.g., limited experimentation with alcohol use versus frequently consuming multiple alcoholic drinks); and the dangerousness of the risky behavior

(e.g., experimentation with marihuana versus cocaine; Rae, Sullivan, Peña Razo, & Garcia de Alba, 2009). If it becomes apparent in working with a student that confidentiality must be broken, the decision to divulge information also should be discussed with the student. Taylor and Adelman (1989) have suggested three steps: (a) explaining to the pupil the reason for disclosure, (b) exploring with the pupil the likely repercussions in and outside the student– psychologist relationship, and (c) discussing with the student how to proceed in a manner that will minimize negative consequences and maximize potential benefits (also see Fisher, 2008).

Privileged Communication The term evidentiary privilege refers to the legal right of the client (the parent of a minor child) to prevent disclosure in court (in some circumstances) of information revealed in an established psychologist–client relationship. In the years since the 1996 Jaffee v. Redmond Supreme Court decision, many, but not all, states broadened the scope of their laws governing privilege to include nondoctoral school psychologists. The general rules of privilege for mental health providers and common exceptions are summarized in Aronson (2001) and Jacob and Powers (2009). School psychologists are ethically obligated to be familiar with the laws governing privilege in the state where they practice (NASP, 2010, I.2.2). (More information on these issues can be found in Volume 1, Chapter 13, this handbook.)

School-Based Record Keeping Under FERPA FERPA (1974) was passed to protect the privacy of student education records and to ensure parent access to the education records of their own child. No federal funds will be made available to schools unless they adhere to the record-keeping policies outlined in FERPA.3 The U.S. Department of Health and Human Services (HSS) together with the Department of Education (DOE) determined that the Health Insurance Portability and Accountability Act of 1996 (HIPAA,

2

This standard emerged from civil lawsuits against school districts in cases involving foreseeable injury to a student.

3

The summary of FERPA (1974) focuses on the law as it applies to elementary and secondary schools and is based on the 2009 electronic Code of Federal Regulations (C.F.R.) and revisions published in the Federal Register on December 9, 2008.

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1996) privacy rule generally does not apply to elementary and secondary education records protected by FERPA (see HHS & DOE, 2008, for a detailed discussion of this issue, including implications of HIPAA for Medicaid billing, school-operated health clinics, and contracted health services). In accordance with FERPA (1974), parents have access to all official school education records of their child, the right to challenge the accuracy of those records, and the right to an impartial hearing regarding their accuracy. The rights of the parent transfer to the student when he or she reaches the age of majority, but parents continue to have access to their high school student’s education records as long as their son or daughter is a dependent as defined by tax law. Aside from parents, education records are to be disclosed only to those in the school setting with a “legitimate educational interest” in the student, and parent consent generally must be obtained before personally identifiable student education records are released to persons or agencies outside of the school. Parents may file a complaint about FERPA violations with the DOE’s Family Compliance Office. FERPA does not confer a personal right to enforcement by means of Section 1983 lawsuits against schools. Under FERPA (1974), education records are defined as any records maintained by the schools (or agencies or consultants to whom a school has outsourced services) that are directly related to the student (34 C.F.R. § 99.3; 99.35). At the elementary and secondary level, the term education records includes records maintained by a school health or mental health professional (HHS & DOE, 2008); no distinction is made between the records of a school psychologist and other types of student education records. Information included in the student’s school psychological record as defined by FERPA is not considered privileged because it is accessible to parties outside of an established school psychologist–client professional relationship (J. N. v. Bellingham School District No. 501, 1994). The definition of education record under FERPA (1974) excludes sole possession records, described as “records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person

except a temporary substitute for the maker of the record” (34 C.F.R. § 99.3). Under FERPA, it is thus permissible for a school-based psychologist to keep private notes about their contacts with clients that are separate from student education records. Under FERPA (1974), IDEA (2004), and Section 504 (Rehabilitation Act of 1973), however, parents must have access to the data that forms the basis of education decisions regarding their child, and consequently information that the school practitioner discloses or makes available to others in the school setting must be placed in the student’s education record (Martin, 1979). In some circumstances, a school-based practitioner may wish to keep private notes regarding communications by a client. For example, if a parent asked for a referral to a community-based drug or alcohol treatment specialist, the practitioner might make a note to him or herself (sole possession record) to follow up this request to ensure that the parent was able to locate a satisfactory treatment option. If a school-based practitioner believes that it is necessary to keep private notes regarding certain communications by a client, such information should not shared with anyone including a substitute, and should be kept separately in a secure file not accessible to anyone but the school psychologist. The private notes of a nondoctoral school psychologist may, or may not, be privileged under state law; however, if a school psychologist’s records are subpoenaed, a client will more likely be successful in asserting that the psychologist’s “sole possession records” are privileged communications if the notes were not shared with anyone. ASSESSMENT AND INTERVENTION UNDER IDEA This discussion focuses on assessment and intervention under IDEA Part B (2004), the portion of IDEA that provides funds to states that offer special education and related services to students with disabilities ages 6 through 18 (or ages 3 through 21 as determined by state law). To receive funds, each state educational agency (SEA) must have on file with the DOE a plan to offer a free and appropriate education to all students ages 6 through 18 with disabilities residing within the state. DOE monitors compliance 133

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with IDEA at the state level and only indirectly (through review of the state plan). The SEA is responsible for ensuring compliance within the state. It is important to recognize that IDEA is not a fully funded mandate; it funds only a modest portion of the extra expenses that schools incur in providing special education to students with disabilities. IDEA (2004) has a child find requirement. The SEA must implement procedures to locate, identify, and evaluate all children with suspected disabilities within the state (34 C.F.R. § 300.111[a]). If a student is suspected of having a disability under IDEA and may need special education, then the school is required to conduct an individual evaluation of the child in accordance with IDEA procedures and timelines unless the parents do not consent to the evaluation. Schools are not required to evaluate students only on the basis of parental suspicion of a disability. However, when parents request a special education eligibility evaluation of their child and the school decides not to evaluate the child, the school must provide the parent with written notice of the refusal to evaluate along with information describing parent rights to challenge that decision (see Burns et al., 2008). IDEA Part B (2004) funds are earmarked to provide special education and related services only for students with a disability as defined by the law. A child with a disability means a child evaluated in accordance with the procedures in the law and who is found to qualify as having a disability in 1 of 13 categories: intellectual disability, hearing impairment, deafness, speech or language impairment, visual impairment, blindness, deaf-blindness, serious emotional disturbance, orthopedic impairment, autism, traumatic brain injury, other health impairment, or specific learning disability; and who, for that reason, needs special education and related services (34 C.F.R. § 300.8[a]). Identification of a pupil as eligible for special education is a twopronged determination: (a) a disability must be documented and (b) a need for special education must be established. Furthermore, a child is not eligible for special education and related services if his or her academic difficulties are due to a lack of appropriate instruction in reading or math, or limited English proficiency (34 C.F.R. § 300.306[b]). 134

School-based practitioners are ethically obligated to conduct psychoeducational evaluations consistent with an ecological model of assessment, taking into account the multiple factors that affect school learning and behavior, including instructional variables, the characteristics of the referred student, and support available from home for school achievement (NASP, 2010, II.3; Ysseldyke & Christenson, 1988). Under IDEA Part B (2004), children must be assessed on the basis of testing and evaluation procedures that are multifaceted (based on a variety of assessment tools and strategies), comprehensive (the child is assessed in all areas related to the suspected disability), technically adequate and valid for the purpose used, fair (nondiscriminatory), and useful (provide information that directly assists in determining educational needs; IDEA, 2004, 34 C.F.R. § 300.304; also NASP, 2010, II.3). The IDEA Part B (2004) definitions of a child with a disability (34 C.F.R. § 300.8), along with the criteria for determining eligibility (34 C.F.R. §§ 300.306–311), have been the source of many parent–school disagreements regarding whether a child is eligible for special education within the meaning of the law. Considerable disagreement exists among experts regarding how to operationalize the federal definitions of autism, specific learning disability, other health impairment (which includes attention deficit disorders), and emotional disturbance; and differing criteria for eligibility under those definitions are used in different states, a situation that Weber (2009) aptly called “the IDEA eligibility mess.” For example, IDEA allows states to identify a child as having a specific learning disability if a significant and unusual discrepancy exists between aptitude (intelligence quotient) and achievement scores, the child is found to have an information-processing deficit, or on the basis of the child’s failure to respond to school interventions that were implemented with integrity (called responsiveness to intervention; see Burns et al., 2008). In addition, confusion sometimes arises because nonschool mental health professionals are trained to use a system for classifying childhood disorders that differs from IDEA (2004), namely the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text

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revision; DSM–IV–TR; American Psychiatric Association, 2000). To add to the confusion, DSM–IV–TR criteria often are used in the schools to identify students with certain impairments such as attention disorders or autism. Although a DSM–IV–TR diagnosis may assist in determining eligibility under IDEA, it is not required by federal law, and it alone is not sufficient to determine whether a student is eligible for special education under IDEA Part B (Zirkel, 2009d). For example, under IDEA Part B (2004), the term emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: (a) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (c) inappropriate types of behavior or feelings under normal circumstances; (d) a general pervasive mood of unhappiness or depression; (e) a tendency to develop physical symptoms or fears associated with personal or school problems. The definition goes on to say that “emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance” (34 C.F.R. § 300.8). The IDEA definition of emotional disturbance has been controversial since it was adopted in 1975. Generally, however, to qualify as a child with a disability within the category of emotional disturbance, the disturbance must be observable to school personnel. The definition “avoids presumptions about the child’s intrapsychic condition, psychiatric nosology, or clinical designation” (Slenkovich, 1988, p. 57). When a child is found to be eligible for special education because he or she meets IDEA criteria for emotional disturbance, the label is an education classification not a diagnosis. The determination of whether a student is a child with a disability under IDEA Part B (2004) is made

by a group of persons (the Individualized Education Program [IEP] team) that includes, among others, the child’s parents, an individual qualified to interpret evaluation data, a current or potential future teacher of the child, and an individual qualified to provide or supervise special education (see 34 C.F.R. § 300.321[a]). Consistent with the ethical obligations of school psychologists, IDEA requires schools to promote parent participation in the decisionmaking process (34 C.F.R. § 300.501[b]). Under IDEA Part B (2004), parents have the right to obtain an independent educational evaluation (IEE) of their child, and those findings must be considered by the school “in any decision made with respect to the provision of [a free appropriate public education] to the child.” An IEE is an evaluation conducted by a qualified examiner who is not an employee of the district responsible for the education of the child in question. The school, on request, must provide parents with information about the district’s criteria for an IEE and where one may be obtained (34 C.F.R. § 300.502), and IEE examiners must be allowed to observe the child in question in his or her classroom. Depending on the circumstances, an IEE may be conducted at parent or school expense. If the parent disagrees with the evaluation done by the school, the district is required, with no unnecessary delay, to either ensure that an IEE is conducted at district expense or initiate a due process hearing if it believes its evaluation was appropriate. If the hearing officer determines that the evaluation was appropriate, parents may proceed with an IEE, but at their own expense (see 34 C.F.R. § 300.502; also Zirkel, 2009b). If a child is determined to be eligible for special education and related services, the student must be offered an appropriate education as outlined in his or her IEP. Decisions regarding the content of the child’s IEP are made by a group of persons (the IEP team) that includes the parents. The required components of an IEP are outlined in the law (34 C.F.R. § 300.320) and include a description of the child’s current levels of educational performance, annual goals, how his or her progress will be measured, the extent to which the child will participate in classes and activities with nondisabled children, and the 135

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specific special education and related services to be provided. The U.S. Supreme Court interpreted the meaning of appropriate education in its 1982 Board of Education of the Hendrick Hudson Central School District v. Rowley decision, and set forth a two-pronged test: “Were IDEA procedures followed in developing the IEP?” and “Is the program reasonably designed to benefit the child?” Rowley and subsequent decisions indicate that IDEA (2004) ensures only an education reasonably designed to confer benefit to the individual student, and not the best possible or most perfect education. Also, schools, not parents, have the authority to select specific instructional methodologies as long as the methods chosen are considered to be acceptable evidence-based practices. A child who is eligible for special education under IDEA Part B (2004) also is eligible for related services but only if those services are required to assist a child with a disability to benefit from special education. Related services include school psychological services, such as counseling and individualized behavioral interventions (34 C.F.R. § 300.34[a]). However, schools are not required to provide medical, including psychiatric, treatment. In accordance with IDEA (2004), a student with a disability must be educated in the least restrictive environment (LRE) appropriate to the child. This means that, as much as feasible, children with disabilities are educated with children who are nondisabled, and special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 C.F.R. § 300.114[a][2]) Congress intended the SEA to make available a continuum of alterative placements to meet the needs of students with disabilities, including placement in the general education classroom with supplementary services, special classes, and residential facilities 136

(34 C.F.R. § 300.15). In developing the IEP, placement in the general education classroom with supplementary services is considered to be “the rebuttable presumption.” This means that decision making by the IEP team begins with the assumption that a child with a disability can be educated satisfactorily in the general education classroom when provided supplementary services, but the team may determine that child requires a more restrictive setting. In Sacramento City Unified School District, Board of Education v. Rachel H. (1994) the court indicated that the following factors should be considered in determining the LRE appropriate for the student: (a) the educational benefits available in a general education classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom or other setting; (b) the nonacademic benefits of interaction with children who are not disabled; (c) the effect of the child’s presence (e.g., disruptive behavior) on the teacher’s ability to teach and on the learning of other children in the class; and (d) the cost of educating the child in a general education classroom. However, the cost must be significantly more expensive than alternative placements to justify an exclusion from the general education classroom on the basis of cost. Daniel R.R. v. Texas State Board of Education (1989) and Brillon v. Klein Independent School District (2004) suggested that a fifth factor also can be considered in making placement decisions, namely, whether the child can benefit from the general education curriculum without substantial and burdensome curricular modifications. Under IDEA Part B (2004), the SEA must ensure that each school district implements procedures to safeguard the parent’s right to confidentiality of records and right to examine their child’s records (including their child’s answers as recorded on psychological test protocols); right to participate in meetings with respect to the identification, evaluation, and placement of their child; right to consent to the initial evaluation and placement of their student and right to withdraw him or her from special education; right to written prior notice before changes are made in identification, evaluation, placement, and special services; right to present findings from an IEE; right to resolution of complaints by mediation; right to resolution of complaints by an impartial

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hearing officer; and right to bring civil action in court. Parents (and schools) generally must exhaust administrative remedies (e.g., mediation) before filing a civil action in court. Courts, at their discretion, may award reasonable attorney fees to the parents if they are the prevailing party in a civil action (34 C.F.R. §§ 300.506–518; also see Rooker, 2005, 2008, on parent rights to review their child’s answers on test protocols). ASSESSMENT AND INTERVENTION UNDER SECTION 504/ADAA As noted, Section 504 of the Rehabilitation Act of 1973 is civil rights legislation that prohibits discrimination against pupils with disabilities in school systems receiving federal financial assistance. The Act states, No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (29 U.S.C. § 794) Unlike IDEA (2004), Section 504 provides no funds to schools. Section 504 does not require states to develop a written plan to meet the requirements of the law, but every school district must designate at least one person to coordinate its efforts to comply with the law and adopt grievance procedures for the prompt and equitable resolution of complaints alleging violations of 504 (34 C.F.R. § 104.7). The Section 504 definition of handicapped was amended by the Americans With Disabilities Amendments Act of 2008 (ADAA, 2008) and hereafter the term 504/ADAA disability will be used. Section 504/ADAA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of the individual (Sec. 12102).4 Major life activities include, but are not limited to, functions such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, speaking, walking, breathing, learning,

concentrating, thinking, and communicating. Furthermore, the determination of whether a physical or mental impairment substantially limits a major life activity is made without regard to the “ameliorative effects of mitigating measures,” such as medication, assistive technology, or aids or services (Sec. 12102 [4][E]). The term disability does not apply to impairments that are transitory (actual or expected duration of 6 months or less) and minor (Sec. 12102 [3][B]), but an impairment that is “episodic or in remission” is a disability if it would substantially limit a major life activity when active (Sec. 12102 [4][D]). The definition of disability under 504/ADAA (2008) is thus broader and more open ended than IDEA (2004; Zirkel, 2009a). Students who are disabled under IDEA are considered to have a disability under 504/ADAA. Contemporary interpretations suggest that schools receiving federal funds must attend to three types of potential discrimination prohibited by Section 504: schools are prohibited from excluding students from participating in school programs and activities solely on the basis of a disability, are required to take reasonable steps to prevent harassment on the basis of disability, and are required to make accommodations to ensure that pupils with disabilities have equal opportunity to benefit from its programs and activities as their peers without disabilities. An evaluation of a student is required if it is believed that the student may qualify as having a disability as defined by 504/ADAA (2008) and may need special school services or accommodations. Schools must notify parents of their rights regarding the identification, evaluation, and placement of children with suspected disabilities before initiating a Section 504 evaluation (34 C.F.R. § 104.32). Like IDEA (2004), schools are not required to evaluate children only on the basis of parental suspicion of a 504/ADAA impairment. When a school does not agree with a parental request for evaluation, it must inform parents of their right to contest that decision. A child who is evaluated because of a suspected disability under IDEA Part B but found not eligible

4

The ADAA (2008) language quoted in this chapter is based on the text of U.S. Code as amended by ADAA and was retrieved from the Americans With Disabilities Act website (http://www.ada.gov/pubs/adastatute08mark.htm).

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should be considered for possible eligibility under 504/ADAA. When a student is not eligible for special education under IDEA (2004), but it is suspected that he or she may have a 504/ADAA (2008) disability, the Section 504 evaluation regulations require determination of the following: (a) Is there a physical or mental impairment? (b) Does that impairment substantially limit a major life activity? and (c) What kind of accommodations would be needed so that the student will be able to enjoy the benefits of the school program (Martin, 1992)? Section 504 does not require a specific categorical diagnosis, only the determination of a condition that substantially impairs one or more major life activities at school and that requires special accommodation by the school. Under Section 504, schools are required to establish standards and procedures for the evaluation of pupils who, because of a suspected impairment, are believed to need special school accommodations. The 504 regulations regarding evaluation procedures (34 C.F.R. § 104.35) are almost identical to those in IDEA Part B (2004). Like IDEA, a DSM–IV–TR diagnosis may assist in determining eligibility under 504/ADAA (2008), but it is neither legally required nor sufficient to make a 504/ADAA eligibility determination under federal law (Zirkel, 2009d). Appropriate education is defined in Section 504 as the provision of regular or special education and related aids and services: “(a) that are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (b) are based on adherence to procedural safeguards” outlined in the law (34 C.F.R. § 104.33). Section 504, like IDEA (2004), also requires schools to educate student who have disabilities with students who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability (34 C.F.R. § 104.34). The law itself does not specifically require a written 504 accommodation plan for students with 504/ADAA (2008) disabilities; however, education experts recommend a written plan be developed (Zirkel, 2009c). The 504/ADAA accommodation plan must be developed by a group of persons, including the child’s parents and persons knowledgeable of the evaluation data. 138

DOE memoranda, court cases, and administrative hearings under Section 504 have addressed the nature of accommodations required for students with mental impairments who do not also qualify as having a disability under IDEA (2004). Accommodations for a student with a mental impairment under 504/ADAA (2008) must be made on the basis of individual need and must, at a minimum, provide assistance to ensure educational opportunity equal to peers without disabilities. The kinds of accommodations identified as acceptable by the DOE and in court cases typically have been classroom or school modifications that a teacher or school psychologist might recommend, such as preferential seating, repeating and simplifying instructions, additional time for test taking, shortened homework assignments with extended due dates, interventions based on applied behavior analysis, individual or group counseling at school, and adult assistance with the administration or monitoring of medications (e.g., DOE, 1991). Procedural safeguards in Section 504 regulations are stated in more general terms than those in IDEA Part B (2004) and must include “notice, an opportunity for the parents or guardian to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure” (34 C.F.R. § 104.36). The Office for Civil Rights (OCR) is charged with investigating Section 504 complaints pertaining to DOE programs or activities. The OCR investigates individual complaints and a parent may trigger an investigation of school district compliance with 504 by filing a complaint with OCR. In addition, parents have the right to initiate a court action against the school on behalf of a child with 504/ADAA (2008) impairments if they believe the school has violated the provisions of Section 504 with respect to their child. The courts may award reasonable attorney fees as part of the costs to parents when they are the prevailing party in a Section 504 lawsuit. In summary, under IDEA (2004), schools must offer a child with a disability an individualized education program reasonably designed to confer benefit, not the best possible or most perfect program. Section 504 only ensures educational opportunities for students with disabilities that are equal to their peers

School Psychology

without disabilities. Every child with a disability must be offered an education in the LRE where his or her schooling can be satisfactorily achieved. Fortunately, changes in federal law (e.g., IDEA, 2004) have resulted in expanded opportunities for school psychologists to plan and monitor scientifically based academic and behavior interventions for general education students who are struggling to be successful. These early intervening services can prevent student failure and reduce unnecessary eligibility testing and misclassification under IDEA (e.g., Burns et al., 2008). ETHICALLY CHALLENGING SITUATIONS IN SCHOOL-BASED PRACTICE Regardless of their specialty area, most psychologists encounter ethical dilemmas in their careers that involve competing ethical principles, conflicts between ethics and law, or difficulties in determining how broad ethics code statements apply to a particular situation. In school-based practice, practitioners also must “balance the authority of parents to make decisions about their children with the needs and rights of those children, and the purposes and authority of schools” (NASP, 2010, Introduction). Thus, school-based practitioners often are required to manage the conflicting interests of multiple parties (children, parents, teachers, school administrators, and systems) in decision making as well as the dilemmas inherent in the dual roles of school employee and pupil advocate (Dailor & Jacob, in press; Jacob-Timm, 1999).

Conflicts Between the Ethical Obligations of School Psychologists and the Culture of the Public Schools In the following paragraphs, we discuss examples of conflicts between the ethical obligations of school psychologists and “the culture” of the public schools in the areas of managing sensitive student information, pressure from school administrators to make recommendations based on the interests of the district rather than the rights and needs of students, and the fine line between advocacy and insubordination. Protecting sensitive student health and mental health information. School-based practitioners

face complex challenges regarding how to protect sensitive student information because, as noted, FERPA (1974) does not make a distinction between school psychological and other types of student education records at the elementary- and secondaryschool level. In some school districts (particularly those with itinerant service providers), school psychologists do not have the authority to control who has access to school psychological education records, and unlike HIPAA (1996), FERPA does not mandate training for school staff on safeguarding sensitive student information (Schwab et al., 2005). Also, it is important to recognize that ethical obligations such as safeguarding confidential client disclosures and sharing sensitive student information only on a need-to-know basis are part of the professional duties and training of health and mental health professionals, but not school administrators. The terms need-to-know and privileged communication typically do not appear in the topic index of textbooks on public school law (e.g., Russo, 2006). Sensitive health or mental health information might be received by a school psychologist in a report written by a physician or community-based mental health provider that was released by the parents to the school or that was communicated orally by the parent or student. Additionally, as in Case Example 1, a practitioner might uncover sensitive information as a result of the assessment process (Jacob et al., 2011). Two issues are addressed here: (a) the exchange of sensitive student information between schools and community-based mental health providers and (b) the disclosure of sensitive information within the school setting. It is likely that tension always will exist between a school’s perceived need for personal information about students and the right of students and their parents to be free from unnecessary intrusions on their privacy (e.g., Merriken v. Cressman, 1973). School administrators may demand that parents release their child’s complete medical or mental health records to the school, particularly if the child is suspected of having a disability under IDEA (2004) or Section 504 (e.g., Shelby by Kathleen T. v. Conroe Independent School District, 2006). Schwab et al. (2005), however, recommended the use of HIPAA-compliant authorization forms when schools request health or 139

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mental health information from outside providers or agencies. This form should identify the names of the certified or licensed school professionals (e.g., school nurse, school psychologist) who are being given permission to receive and use the information. The form also should identify the specific types of information requested, why the information has been requested and how it will be used (e.g., eligibility under IDEA or Section 504, educational program planning, ensuring appropriate school health care services). As Schwab et al. (2005) noted, it is rarely necessary or appropriate for a school to request release of a child’s complete medical or mental health records. It also is critically important that communitybased providers discuss with parents and adult students the content of the records to be released to the schools, and advise them against disclosing information “not germane to the request” (VandeCreek, 2008, p. 373). As VandeCreek wrote, “The most complete way to fully inform clients is to share the record (or the information to be shared) with the client before sending it on” (p. 373). Parents may not understand that sensitive information filed by the school in their child’s education record is not protected by HIPAA (1996), is not privileged, can be accessed by the student at the age of majority, and may be available to school staff who have not received formal training on how to handle sensitive information. FERPA (1974) generally requires written consent of the parent (or adult student) before disclosure of personally identifiable student information to external (nonschool) providers and agencies. FERPA regulations, however, provide little guidance regarding what, if any, sensitive student information to share with others who have “legitimate educational interests” within the school setting (Schwab & Gelfman, 2005). Case Example 1 Maria Delgado, PhD, is a licensed psychologist as well as a certified school psychologist. After completing a doctoral internship in a pediatric health care setting and her licensure requirements, she accepted a position as a school psychologist in a public school system. 140

She received a referral to evaluate Tara, age 11, whose achievement in math is well below grade expectations, even after multiple small-group interventions were attempted in the general education classroom. Tara’s parents signed a consent form providing permission for a school evaluation to determine whether their daughter might be a child with a disability under IDEA (2004). During her assessment, Dr. Delgado observed that Tara is an anxious child. She also observed that Tara frequently counted on her fingers while working on addition problems and, when given multiplication problems, made tally marks on the side of the answer sheet. Further informal assessment confirmed that Tara had not mastered basic addition or multiplication facts; simple math calculations were not automatic, making it difficult for her to tackle the challenges of fifth-grade math. Dr. Delgado also found that Tara’s school records showed many absences due to illness, that Tara often goes home early from school because of complaints of a headache or upset stomach, and that their family doctor has not found a medical cause for these recurring symptoms. On the basis of her assessment findings, Dr. Delgado determined that in addition to possible eligibility under IDEA, Tara met the diagnostic criteria for somatoform disorder, a diagnosis based on the DSM–IV–TR. At her doctoral internship site, Dr. Delgado was required to prepare comprehensive psychological reports, incorporating child medical and developmental history; extensive family background information; and her assessment findings, including, when appropriate, a DSM–IV–TR diagnosis. Dr. Delgado is unsure whether to include Tara’s DSM–IV–TR diagnosis in the psychological report she is preparing for the IEP meeting to determine whether Tara is a student with a disability. (Jacob et al., 2011)

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Although Dr. Delgado in Case Example 1 had parent consent to conduct a psychoeducational assessment of Tara to determine possible eligibility under IDEA (2004), she had not sought permission to render a DSM–IV–TR diagnosis. Consistent with her ethical obligations to ensure parent consent for services and to assist them in making informed decisions, she arranged to meet with Tara’s parents in private to discuss her findings, including the benefits of including the somatoform disorder diagnosis in her report to the IEP team (e.g., possibly assisting instructional staff in understanding Tara’s emotional functioning) and the disadvantages (the diagnosis could be misunderstood by instructional staff; the diagnosis will appear in educational records not managed by the school psychologist). As a result of the meeting, Tara’s parents requested that Dr. Delgado’s report for the IEP team focus on providing only the information necessary to make decisions regarding eligibility under IDEA and on identifying individualized interventions that are likely to assist Tara, especially in math. They also agreed that Tara is an anxious child who would benefit academically and emotionally from counseling to learn better strategies to cope with stress—findings that should be shared with the IEP team. Dr. Delgado discussed community- and school-based counseling and psychotherapeutic treatment options for their daughter (NASP, 2010, II.3.10) and identified the possible financial costs of various options. She also provided them with a list of strategies developed by pediatric experts for parents and teachers explaining how to help children learn to participate in school and other daily activities even if the child is experiencing physical discomforts. Dr. Delgado offered to coordinate implementation of the strategies at school and at home, and Tara’s parents readily agreed. Finally, Dr. Delgado reviewed the decisions that will be made at the upcoming IEP team meeting and encouraged Tara’s parents to express their opinions at the meeting. Consistent with the need-to-know principle that appears in our ethics codes, Schwab and Gelfman (2005) advised school-based health and mental

health professionals to disclose private student information to others within the school setting only “when necessary in order to benefit the student” (p. 267). Information disclosure should focus on communicating the student’s functional health, academic, and behavioral difficulties and explain how to respond. In keeping with emerging standards for the management of sensitive student information in the pubic schools (e.g., Schwab et al., 2005), it is appropriate to have a credentialed school-based health or mental health professional review, in collaboration with the parents, any sensitive medical or mental health information obtained about their child, to determine what information should be shared with others in the school setting to assist the student (see Pine-Richland [PA] School District, 2009). Some medical and DSM–IV–TR diagnoses can be stigmatizing and misunderstood by school staff. Furthermore, when sensitive student information is shared with school staff, the school psychologist and parents lose control over its redisclosure (Fisher, 2008).5 Perhaps because of HIPAA (1996), many parents now have a greater expectation of ownership and control of health information about their child in the school setting, and a few states have passed legislation to better protect the privacy of student health information maintained by public schools. We believe that school-based health and mental health providers should be allowed to serve as custodians and gatekeepers who, in partnership with parents, control disclosure of sensitive information about a student to others within the school setting. In addition, staff training in the management of sensitive student information should be required in all schools (see Schwab et al., 2005). The rights and needs of students and parents versus school administrative pressures. Although school administrators share a commitment to promoting the welfare of all students, they face pressures to base decisions on “the good of the whole” rather than the needs of an individual student and

5

Unfortunately, in some schools, private health information about students is shared internally without consideration of the “need-to-know” principle, family privacy rights, or the obligation to ensure nondiscriminatory treatment of students with physical or mental impairments. The Office for Civil Rights investigation of the Pine-Richland (PA) School District (2009) was initiated after school staff required a child (without prior parent permission) to stand up and talk about her health condition (confidential health information) in front of her second-grade classmates.

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to carefully manage limited resources (Denig & Quinn, 2001). Not surprisingly, in several studies, school-based psychologists reported pressure from their supervisors to put the administrative needs of the district (e.g., contain costs) ahead of the rights and needs of students, especially students with suspected or known disabilities (Dailor & Jacob, in press; Jacob-Timm, 1999). Case Example 2 Joshua, a student with a disability under IDEA (2004), was placed at a private school after the district’s IEP team, including his parents, the school psychologist, and the director of special education, unanimously agreed that the private school’s program was the least restrictive setting available to meet Joshua’s complex special education needs. The school district’s superintendent, concerned about the expense of the private school, convened an IEP meeting at the end of the school year with the stated purpose of discussing Joshua’s fall placement. The superintendent knew that Joshua’s parents wished their son to continue at the private school because of his excellent progress there and that the school psychologist likely agreed with them. Before the IEP meeting, the superintendent left a voicemail message for Mrs. Bronson, the school psychologist, informing her that “the district” had no intention of allowing Joshua’s private school placement to continue and that she expected Mrs. Bronson’s “full cooperation” in the matter. Mrs. Bronson and the district’s director of special education typically began each IEP team meeting with a review of the issues the team should consider in making eligibility, classification, and placement decisions; statements encouraging the parents to participate in the decision-making process; and queries to ensure that the parents are aware of their legal rights under IDEA. To their surprise, the school district superintendent 142

not only attended but also took charge of the IEP meeting regarding Joshua’s future placement. The superintendent began by stating that the purpose of the IEP meeting was to discuss Joshua’s “transition” from the private school to the district’s own special education program in the fall. Given the superintendent’s introductory comments, how can Mrs. Bronson ensure that Joshua’s parents will feel comfortable voicing their opinions during the meeting regarding an appropriate placement for their son? How can she speak up for the legal rights of the parents and the needs of the student and at the same time maintain a positive working relationship with her employer? Some district administrators treat parents, students, and staff with respect and fairness, including them as much as feasible in school decisions that affect them. Other administrators, however, expect unquestioned deference to their decision-making authority. Unlike teachers and other instructional staff, the school psychologist’s obligation “to speak up for the rights and welfare of students and families, and to provide a voice to clients who cannot or do not wish to speak for themselves” is codified in their code of ethics and emphasized in their training (NASP, 2010, Definitions). As Miller (2009) wrote, school psychologists “must, in a quiet and yet determined fashion,” help administrators understand that in protecting the rights of students with disabilities, we also are “protecting the school district, and we are protecting them” (pp. 17–18). Consistent with the principle of respect for the dignity of persons, school psychology practitioners must ensure that clients have a voice in decisions that affect them. Furthermore, in keeping with the principles of honesty and integrity in professional relationships and responsibility to families (NASP, 2010, III, IV), Mrs. Bronson has an obligation to ensure that Joshua’s parents have a clear understanding of the purposes of the meeting (i.e., to determine an appropriate fall placement), the process of decision making (what issues the team is legally required to consider), and their role in that process. To achieve this, Mrs. Bronson must reframe

School Psychology

the meeting in a way that not only is respectful of the district superintendent, but also fosters a collaborative partnership between parents and school professionals, with the goal of developing an IEP that is reasonably designed to confer benefit in the LRE appropriate to Joshua’s individual needs. Although Case Example 2 is fictitious, in H. Berry by Berry v. Virgenes Unified School District (2010), the 9th circuit held that a school district’s IEP proceedings violated IDEA (2004) because the district predetermined a child’s placement. More specifically, the school district superintendent’s introductory statements at an IEP meeting (as in Case Example 2) indicated that she already had decided to remove the child from a private school before the IEP meeting with the parents. Furthermore, the parents were not afforded a meaningful opportunity to participate in the IEP meeting, including the placement decision. In addition to the legal costs to the school district of defending its administrator’s inappropriate actions, the court’s ruling likely will allow the parents to receive reimbursement for their attorney fees from the school district.

Advocacy Versus Insubordination The 2006 U.S. Supreme Court Garcetti v. Ceballos decision suggested that school-based practitioners, as state actors, could be disciplined or dismissed for publically criticizing the practices of the school districts where they are employed if speaking in their official job role rather than as private citizens. School-based practitioners have whistleblower protection, however, if they expose unlawful actions by their employer. NASP-PPE obligates practitioners to advocate for the rights and interests of students and families, but its definition of advocacy goes on to state: “Nothing in this code of ethics . . . should be construed as requiring school psychologists to engage in insubordination (willful disregard of an employer’s lawful instructions) . . . as part of their advocacy efforts” (NASP, 2010, IV.2.3; emphasis added). Regardless of the situation, however, school psychologists do not participate in school actions that violate basic human rights.6 Jacob (2008) encouraged school-based practitioners to discuss concerns about problematic school

policies or actions using within-school venues, to emphasize the positive potential effects of alternative practices rather than simply criticizing existing ones, and to clearly identify when they are speaking as an employee versus speaking as a private citizen (also see NASP, 2010, IV.2.4; Zirkel, 2008). (More information on institutional conflicts can be found in Volume 1, Chapter 5, this handbook.) RESOLVING ETHICAL DILEMMAS Like psychologists in other specialty areas, school psychologists are encouraged to take a proactive stance to avoid ethical dilemmas and to use a systematic problem-solving model when difficult situations arise (Koocher & Keith-Spiegel, 2008; McNamara, 2008; Williams et al., 2008;). They also are encouraged to “strive for excellence” (Knapp & VandeCreek, 2006) rather than simply meeting the minimum ethical obligations outlined in codes of ethics and to “engage in the lifelong learning that is necessary to achieve and maintain expertise in applied professional ethics” (NASP, 2010, Introduction). Jacob (2008) also has provided suggestions for school-based practitioners on developing an ethical practice.

Collaboration Between School-Based Practitioners and Psychologists in Other Settings Federal laws such as FERPA (1974), IDEA (2004), and Section 504 (1973) are complex and amended periodically, and the regulations implementing them frequently are revised. Furthermore, various courts have issued differing interpretations of their language and meaning. Finally, the majority of statutes and rules that directly affect school district policies are enacted at the state level. School attorneys, administrators, instructional staff, school psychologists, and parents all may have reasonable but differing interpretations of what FERPA, IDEA, and Section 504 require, prohibit, and permit. School personnel struggle to keep abreast of changing education laws and regulations, and they may falter in their interpretation or implementation

6

The basic human rights of students in the school setting were discussed in Jacob et al. (2011) under the topics of behavioral interventions and corporal punishment.

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of what is legally required. On the other hand, parents may be frustrated or discouraged by their child’s difficulties at school; angry and mistrusting of school personnel; and, understandably, have their own beliefs about their child’s needs and what the school should do to address those needs. School psychologists are obligated to explain, as clearly as feasible, the school’s responsibilities as well as parent and student rights under IDEA (2004), Section 504 (1973), and FERPA (1974). The ethical practice of school psychology “involves continuously working to foster open and honest communication” with parents (Dailor, 2007, p. 33). Unfortunately, many school–parent disagreements escalate, resulting in due process hearings and lawsuits. Between 1995 and 2003, special education litigation alone resulted in more than 1,500 judicial decisions in the United States (Norlin, 2004). This number is just the tip of the iceberg because informal and administrative remedies typically must be exhausted before a lawsuit is filed, and some lawsuits are settled before a judicial decision is rendered. The NASP-PPE states the following: To best meet the needs of children and other clients, school psychologists cooperate with other psychologists and professionals from other disciplines in relationships based on mutual respect. They encourage and support the use of all resources to best serve the interests of students. (NASP, 2010, III.3.1) School–community collaboration can result in improved health, mental health, and educational outcomes for youth (see Eagle, Dowd-Eagle, & Sheridan, 2008). Collaborative efforts between school- and community-based mental health providers are most likely to benefit students when such collaborations are formed on the basis of effective communication and positive cooperation, including respect for and understanding of differing professional roles and employment contexts; a shared commitment to empowering parents to make informed choices about their child’s education and mental health needs; and a shared commitment to preventing misunderstandings among parents, schools, and community-based providers. 144

However, because unhappy parents often seek IEEs or expert testimony from nonschool psychologists or psychiatrists while pursuing the dispute resolution remedies available under IDEA (2004) or Section 504 (1973), school- and community-based practitioners may find themselves in adversarial rather than collaborate roles. In Table 7.1 we identify some of the ways in which school-based practice may differ from the provision of psychological services in nonschool settings. Although the table only offers a simplistic summary, this information highlights some of the subtle but important differences between school-based and non-school-based practice. Improved communication across settings might increase the likelihood that parent–school disagreements regarding a child’s education needs and rights can be resolved informally, without triggering adversarial due process hearings and lawsuits under IDEA or Section 504. It is our belief that effective and positive collaboration among school-based psychologists, community-based providers, and parents can keep the best interests of the child at center stage.

References American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders. (4th ed., text revision). Washington, DC: Author. American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx Americans With Disabilities Act Amendments, Pub. Law No. 110-325 (2008). Aronson, R. H. (2001). Symposium: The uniform rules of evidence (1999): The mental health provider privilege in the wake of Jaffee v. Redmond. Oklahoma Law Review, 54, 591–612. Bersoff, D. N., & Koeppl, P. M. (1993). The relation between ethical codes and moral principles. Ethics and Behavior, 3, 345–357. doi:10.1207/s15327019eb0303&4_8 Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982). Boonstra, H., & Nash, E. (2000). Minors and the right to consent to health care. Retrieved from http://www. guttmacher.org/pubs/tgr/03/4/gr03404.pdf Brillon v. Klein Independent School District, 100 Fed. App. 309, 2004 U.S. App. LEXIS 11235 (5th Cir. 2004).

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Brown v. Board of Education, 347 U.S. 483 (1954).

Flanagan, R., Miller, J. A., & Jacob, S. (2005). The 2002 revision of APA’s ethics code: Implications for school psychologists. Psychology in the Schools, 42, 433–445. doi:10.1002/pits.20097

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Garcetti v. Ceballos, 126 S. Ct. 1951, 2006 U.S. LEXIS 4341 (2006).

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H. Berry by Berry v. Las Virgenes Unified School District, 110 LRP 15671 (9th Cir. 2010). Retrieved from http:www.specialedconnection.com

Charvat, J. L. (2008). Estimates of the school psychology workforce. Retrieved from http:www/nasponline.org/ advocacy/SP_Workforce_Estimates_9.08.pdf

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Corrao, J., & Melton, G. B. (1988). Legal issues in schoolbased behavior therapy. In J. C. Witt, S. N. Elliot, & F. M. Gresham (Eds.), Handbook of behavior therapy in education (pp. 377–399). New York, NY: Plenum Press. Curtis, M. J., Lopez, A. D., Castillo, J. M., Batsche, G. M., Minch, D., & Smith, J. C. (2008). The status of school psychology: Demographic characteristics, employment conditions, professional practices, and continuing professional development. Communiqué, 36, 27–29. Dailor, A. N. (2007). A national study of ethical transgressions and dilemmas reported by school psychology practitioners. Unpublished master’s thesis, Central Michigan University, Mt. Pleasant. Dailor, A. N., & Jacob, S. (in press). Ethically challenging situations reported by school psychologists: Implications for training. Psychology in the Schools. Daniel R. R. v. Texas State Board of Education, El Paso Independent School District, 874 F. 2d 1036 (5th Cir. 1989).

Individuals With Disabilities Education Improvement Act of 2004, Pub. L. No. 108-46620, 20 U.S.C. §§ 1400 et seq. (2006). Regulations appear at 34 C.F.R. Part 300. J. N. v. Bellingham School District No. 501, 74 Wn. App. 49, 871 P. 2d. 1106, 1994 Wash. App. LEXIS 197 (Wash. App. 1994). Jacob, S. (2008). Best practices in developing ethical school psychological practice. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology V (pp. 1921–1932). Bethesda, MD: National Association of School Psychologists. Jacob, S. (2009). Putting it all together: Implications for school psychology. School Psychology Review, 38, 239–243. Jacob, S., Decker, D. M., & Hartshorne, T. S. (2011). Ethics and law for school psychologists (6th ed.). Hoboken, NJ: Wiley.

Denig, S. J., & Quinn, T. (2001). Ethical dilemmas for school administrators. High School Journal, 84(4), 43–49. doi:10.1353/hsj.2001.0009

Jacob, S., & Powers, K. E. (2009). Privileged communication in the school psychologist–client relationship. Psychology in the Schools, 46, 307–318. doi:10.1002/ pits.20377

Eagle, J. W., Dowd-Eagle, S. E., & Sheridan, S. M. (2008). Best practices in school–community partnerships. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology V (pp. 953–967). Bethesda, MD: National Association of School Psychologists.

Jacob-Timm, S. (1999). Ethical dilemmas encountered by members of the National Association of School Psychologists. Psychology in the Schools, 36, 205–217. doi:10.1002/(SICI)15206807(199905)36:33.0.CO;2-A

Eisel v. Board of Education Montgomery County, 597 A. 2d 447 (Md. 1991).

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Kitchener, K. S. (2000). Foundations of ethical practice, research, and teaching. Mahwah, NJ: Erlbaum. Knapp, S., & VandeCreek, L. (2006). Practical ethics for psychologists: A positive approach. Washington, 145

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DC: American Psychological Association. doi:10.1037/11331-000 Koocher, G. P., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press. Martin, R. (1979). Educating handicapped children: The legal mandate. Champaign, IL: Research Press. Martin, R. (1992). Continuing challenges in special education law [Looseleaf notebook]. Carle Media, Urbana, IL. McNamara, K. (2008). Best practices in the application of professional ethics. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology V (pp. 1933–1941). Bethesda, MD: National Association of School Psychologists. Merriken v. Cressman, 364 F. Supp. 913 (E. D. Pa 1973). Miller, F. L. (2009). Advocacy: The risks and rewards. Communiqué, 38, 17–18. National Association of School Psychologists. (2007). Ethical and Professional Practices Committee procedures. Retrieved from http://www.nasponline.org National Association of School Psychologists. (2010). Principles for professional ethics. Bethesda, MD: Author. Retrieved from http://www.naspweb.org Norlin, J. (2004). New York is top of the heap in special ed litigation. Retrieved from http://www. specialedconnection.com/LrpSecStoryTool/servet/ GetStory?docid=1962963 Pennsylvania Association for Retarded Citizens (P.A.R.C.) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972). Pine-Richland (PA) School District. (2009, June 19). 53 IDELR 200, 13 FAB 2, 40 NDLR 151, 109 LRP 69515, Office for Civil Rights, Eastern Division, Philadelphia (Pennsylvania). Retrieved from http:// www.specialedconnection.com Prilleltensky, I. (1991). The social ethics of school psychology: A priority for the 1990s. School Psychology Quarterly, 6, 200–222. doi:10.1037/h0088814 Prilleltensky, I. (1997). Values, assumptions, and practices: Assessing the moral implications of psychological discourse and action. American Psychologist, 52, 517–535. doi:10.1037/0003-066X.52.5.517 Rae, W. A., Sullivan, J. R., Peña Razo, N., & Garcia de Alba, R. (2009). Breaking confidentiality to report adolescent risk-taking behavior by school psychologists. Ethics and Behavior, 19, 449–460. doi:10.1080/10508420903274930 Rehabilitation Act of 1973 (Section 504), Pub. Law No. 93-11229, 29 U.S.C. § 794 (2006). Regulations implementing Section 504 appear at 34 C.F.R. Part 104. Reschly, D. J., & Bersoff, D. N. (1999). Law and school psychology. In C. R. Reynolds & T. B. Gutkin (Eds.), 146

Handbook of school psychology (3rd ed., pp. 1077–1112). New York, NY: Wiley. Rooker, L. S. (2005, September 13). Letter to Mr. Gary S. Mathews (FERPA Online Library). Retrieved from http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/ carrollisd09305.html Rooker, L. S. (2008, June 30). Response to “Letter to Anonymous” (Family Policy Compliance Office, 12 FAB 27; 109 LRP 7789). Horsham, PA: LRP Publications. Ross, W. D. (1930). The right and the good. Oxford, England: Clarendon Press. Russo, C. J. (2006). Reutter’s The law of public education (5th ed.). New York, NY: Foundation Press. Sacramento City Unified School District, Board of Education v. Rachel H., 14 F. 3d 1398 (9th Cir. 1994). San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973). Schill, K. (1993, Fall). Violence among students: Schools’ liability under Section 1983. School Law Bulletin, 1–11. Schwab, N. C., & Gelfman, M. H. B. (2005). Confidentiality: Principles and practice issues. In N. C. Schwab & M. H. B. Gelfman (Eds.), Legal issues in school health services: A resource for school administrators, school attorneys, school nurses (pp. 261–295). New York, NY: Authors Choice. Schwab, N. C., Rubin, M., Maire, J. A., Gelfman, M. H. B., Bergren, M. D., Mazyck, D., & Hine, B. (2005). Protecting and disclosing student health information: How to develop school district policies and procedures. Kent, OH: American School Health Association. Shelby by Kathleen T. v. Conroe Independent School District, 454 F. 3d 450; 2006 U.S. App. LEXUS 16067 (5th Cir. 2006). Siegel, M. (1979). Privacy, ethics, and confidentiality. Professional Psychology, 10, 249–258. doi:10.1037/0735-7028.10.2.249 Slenkovich, J. E. (1988, February). The seriously emotionally disturbed definition. Schools’ Advocate (Boston, Mass.), 153–164. Taylor, L., & Adelman, H. S. (1989). Reframing the confidentiality dilemma to work in children’s best interests. Professional Psychology: Research and Practice, 20, 79–83. doi:10.1037/0735-7028.20.2.79 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733 (1969). U.S. Department of Education. (1991). Joint policy memorandum. Individuals with Disabilities Education Law Report, 18, 116–119. U.S. Department of Health and Human Services & U.S. Department of Education. (2008, November). Joint guidance on the application of the Family Educational

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CHAPTER 8

ETHICS IN INDUSTRIAL– ORGANIZATIONAL PSYCHOLOGY Joel Lefkowitz

Industrial–organizational (I/O) psychology can be defined generally as the study of human behavior in work settings and other social organizations, and the application of the knowledge gained to improve the effectiveness of those organizations and the wellbeing of the people within. There are two dualities contained in that definition, and they both are relevant to the consideration of ethical issues. First, there is the duality of psychological science (“the study of human behavior”) and professional practice (“application of the knowledge gained”), and hence the relevance and concern for the adequacy of the scientist-practitioner model as a values orientation and guide to training in the field (Lefkowitz, 1990). The second duality is indicated by I/O psychology’s concern for the effectiveness and well-being both of the organization and of its employees (and, arguably, other stakeholders). Some of the professional and ethical challenges and conflicts faced by I/O psychologists in professional practice relate to situations in which the interests of the organization and of at least some of its workers or other stakeholders are not entirely the same. Both of these dualities are echoed in the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010): “Psychologists are committed to increasing scientific and professional knowledge of behavior . . . and to the use of such knowledge to improve the condition of individuals, organizations, and society” (Preamble). One of the criticisms that can be made of the Ethics Code is that it fails to adequately recognize and provide clear guidance for those, like I/O psychologists, who are

faced with meeting obligations to individuals, organizations, and society when the interests of the three diverge. That is especially unfortunate in the eyes of those who have viewed I/O psychology itself as giving short shrift to the concerns and well-being of employees and society at large in favor of having a one-sided “commitment to management’s goals” (Baritz, 1960, p. 197), being “oriented overwhelmingly to the needs of management” (Katzell & Austin, 1992, p. 823), or “hav[ing] a pronounced pro-management bias” (Lefkowitz, 2008, p. 446). This issue of professional identity and values goes to the heart of some of the ethical issues presented later in this chapter (also see Ryan & Ford, 2010). DEFINITIONAL MATTERS Are there general moral constructs applicable to all domains of ethics and professional practice? What makes a problem or dilemma ethical in nature? How can we define what is morally right and wrong, or good and bad (or evil)? Both philosophers and moral psychologists have contributed to our understanding of such matters and so it is necessary, or at least advisable, to delve into some of this basic scholarship. This section reviews some basic information related to the philosophical foundations of ethical behavior. (More information on these issues can be found in Volume 1, Chapter 1, this handbook.)

Moral Behavior Extending scholarship in moral philosophy, moral psychologists have tended to view human behavior

DOI: 10.1037/13272-008 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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as segmented into three broad domains, or levels, with different motivational bases—although many actions reflect mixed motives from two or all three (Boyd, 1994; Frankena, 1973). First, egoistic behavior is dominated by self-interest. Such behavior is not much influenced by a consideration of others, except as they affect our own strivings and gratifications. Second, and probably the largest category of human behavior, is conventional behavior that reflects adherence to the interpersonal rules and customs under which we were socialized, and which often is expressed relatively automatically. Third, moral behavior refers to intentional, principled adherence to some system of rules regarding interpersonal behavior that goes beyond mere social consensus and sanctions. It is composed of two dimensions: justice issues, with its criteria of fairness and impartiality (Kohlberg, 1981, 1984; Piaget, 1932/1965); and welfare or caring, with its criteria of beneficence, nonmaleficence, altruism, and so on (Gilligan & Wiggins, 1987; Hoffman, 1988). Lefkowitz (2003) has suggested that a third dimension of moral behavior, indicated by labels such as honesty, integrity, or moral virtue be added— although not as an independent category (honesty and integrity may be implicated in expressions of fairness and beneficence). It was proposed because it emphasizes the nidus of morality in the character of the person. The contribution consists of articulating clearly that the domain of ethics and morality extends beyond that of mere decisional considerations (i.e., ethical decision making) to include consistent attributes of the decision maker. By its inclusion the ethical question shifts from a focus entirely on “What shall I do?” to include “Who shall I be?” (p. 147)

Some Metaethical Issues Underlying the variety of normative ethical theories propounded by the famous moral philosophers with which the reader may be familiar are some contentious metatheoretical issues that bear mentioning, with an assertion of the positions taken in this chapter. 150

Objectivism versus subjectivism. Are the answers to such fundamental ethical questions as “What does it mean when we say something is morally right?” potentially verifiable objectively? That is, do morals represent objective truths to be uncovered, or are they entirely subjective? Both views have adherents: For example, some proponents of objectivism adhere to a notion that there exists natural law and hence ethical naturalism; adherents of subjectivism argue that there can only be ethical and cultural relativism. Suffice it to say that there are substantial criticisms to be made of each extreme (cf. Lefkowitz, 2003, Chapter 2, for a review). Contemporary ethicists like Rachels (1993) and Singer (1995), however, have warned against falling into an either–or trap, as if there was no alternative. The alternative they proposed is sound ethical reasoning: “Moral truths are truths of reason; that is, a moral judgment is true if it is backed by better reasons than the alternatives” (Rachels, 1993, p. 40). Egoism versus universalism. Some ethical judgments are based on a consideration of only one’s own interests in deciding what is good or right (Aristotle; Thomas Hobbes; Ayn Rand)—ethical egoism. Most contemporary philosophers and normative ethical theories reject that metatheoretical position in favor of the universalist tradition in which the interests of all those affected by an action are to be considered. According to Singer, “Selfinterested acts must be shown to be compatible with more broadly based ethical principles if they are to be ethically defensible, for the notion of ethics carries with it the idea of something bigger than the individual” (1995, p. 10). In fact, an empirical review of the impact of organizational–ethical climates reveals that the climate dimension of instrumentality (self-interest is what guides behavior) is related to dysfunctional organizational outcomes whereas the other four dimensions (involving caring and morality) are associated inversely with dysfunction (Martin & Cullen, 2006). The principle I recommend in these pages is that in arriving at ethically appropriate judgments, no one’s interests and concerns—especially one’s own—is to be given greater a priori consideration than anyone else’s. (The qualifier a priori means that

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in any given situation, there may be legitimate reasons for affording greater consideration to some, e.g., recognizing prior obligations or fiduciary duties.) We find contemporary manifestations of this position in the business community, as represented by the advocacy of corporate social responsibility (Lefkowitz, 2007a) and multiple stakeholder theory (Donaldson & Preston, 1995) as guides to corporate action.

Two Approaches to Ethical Judgment Some normative ethical theories are based on the assumption that actions may be viewed as inherently ethical (right) or unethical (wrong). They are deontological theories (from the Greek word deon, meaning duty). Absolutist versions are referred to as rule deontology (as in “thou shalt not kill” or “never tell a lie”). In contrast, teleological theories or consequentialist theories such as Utilitarianism do not deal with right and wrong directly, but focus on the good or harm consequent upon alternative actions. The right (most ethical) choice is that which produces the most net good, or minimizes the aggregate harm, to all those affected. Suffice it to say that a mountain of philosophical criticism of both positions exists (cf. Lefkowitz, 2003, Chapters 3–4, for a discussion). Moreover, some dilemmas seem to lend themselves better to one or the other sort of approach. In some instances, we are more concerned with someone potentially being wronged (deontologically) even if they are not particularly harmed (in terms of consequences).

A Moral or Ethical Dilemma? What makes a problem an ethical or a moral one? A problem of any sort generally entails having to make choices. Clearly, however, my difficulty with the New York Times crossword puzzle does not constitute an ethical dilemma, per se, so there must be more involved. What is missing is an interpersonal aspect, especially whether there are any meaningful consequences for others based on my choices. So, what if I am charged with the complicated responsibility of constructing the psychology department’s teaching schedule for the coming term, thus determining individual faculty members’ programs, which will vary considerably in attractiveness and convenience?

Those are real consequences for the faculty, but something still is missing; I still do not have an ethical problem. But what if a faculty colleague who is a personal friend were to come to me confidentially and ask for special consideration to offer his course at a particularly desirable day and time that would, however, inconvenience others and make it difficult for some students to register for the course? Now the problem is an ethical one because the intentional choices I make and their consequences for others entail a possible violation of a moral or ethical principle—in this case, fairness and impartiality (as well as a failure to live up to a legitimate obligation). Therefore, in judging the ethicality of an action (or of potential choices) both the actor’s intentions and the consequences of the act (or the anticipated consequences of the options) are critical.

Ethical Principles The several-thousand-year tradition of moral philosophy, both Western and Eastern versions, has contributed to a contemporary consensus of moral or general ethical principles—for example, as codified in the Ethics Code (APA, 2010), the Canadian Psychological Association (2000) code of ethics, that of the International Association of Applied Psychology (2008), and in the study of professional ethics (Lefkowitz, 2003, 2006, 2007b; Lefkowitz & Lowman, 2010). Following is a brief description of the most widely accepted moral principles or standards that provide the underpinnings for professional ethics. What they have in common is that “moral standards pertain to cooperative solutions to fundamental social dilemmas that affect people’s welfare” (Krebs, 2008, p. 159). I review some paradigmatic forms of such “fundamental social dilemmas” and then note how some of these moral principles are manifested in the several different work roles typically occupied by I/O psychologists. Respect for people. Respecting the dignity, autonomy, and individual rights of others is one of the most widely espoused moral principles in Western thought. (In Eastern philosophies it is more likely to be couched in a communitarian context, i.e., respect for the rights of others, as a collectivity.) It derives from elements of Kant’s categorical imperative, John 151

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Locke’s notions of human rights, Hegelian notions of self-realization, and others. Because these rights are universalizable (equally applicable to all), such respect is composed of a system of reciprocity in which my rights (or yours) do not extend to the point of superseding your rights (or mine). This principle underlies such professional strictures as maintaining the right of potential research participants to decline participation in our studies and protecting the confidentiality of assessment candidates’ test scores. According to Lefkowitz (2006), “This principle is violated when one is deceived or secretly surveilled, a promise is not kept, a duty not met, or one is coerced into taking unwanted action or accepting an unfair agreement” (p. 248). The Ethics Code (Principle E, Respect for People’s Rights and Dignity) notes that special sensitivity may be needed in the exercise of this principle with respect to vulnerable individuals and in recognizing our own potential prejudices concerning particular groups. Fairness and justice. The proverbial “good news” is that notions of fairness, justice, and impartiality are widely accepted ethical principles. The “bad news” concerns the theoretical inconsistency and great interindividual and cross-cultural variability in criteria of what is thought of as fair or just. In the context of formalistic or deontological ethical theories such as Kant’s, fairness may be thought of as each individual or group having an appropriate balance of rights versus duties or responsibilities. From a consequentialist or utilitarian perspective such as that of John Stuart Mill or Peter Singer (1995), it may be thought of as a rationally defensible distribution of the burdens required and benefits provided to its members by a social system such as a team, a work organization, or an entire society. And normative ideas of what is viewed as distributively fair are influenced by the macro social and economic system. In free-market capitalism, especially the quintessential U.S. version, what is fair is equity: being compensated relative to one’s contributions to the economic enterprise—that is, what one has “earned.” Economic and social systems based on criteria of equality or need usually are denigrated: They may not be considered “fair” by most people in the United States. 152

Some of the work of I/O psychologists involves developing the tools—for example, job analysis (assessing the demands of the job), job evaluation (assessing the relative worth of the job), and performance appraisal (assessing the quality of employees’ work performance)—that make up the compensation systems that can be perceived as equitable by the participants. Unfortunately, however, I/O psychologists have had little to say about widespread violations of equitable compensation systems (e.g., in enormous compensation packages or “guaranteed bonuses” for senior executives, irrespective of their performance) or the quite substantial loss in the equity of wages relative to productivity in U.S. businesses over the past 30 years or more. Beneficence and nonmaleficence. Doing good or benefiting others and avoiding unnecessarily harming or preventing harm to others may be viewed as complementary, but they are not alternative versions of the same principle. Unlike the moral principle of nonmaleficence, beneficence generally is viewed as circumscribed—that is, few would propose that we are under a universal obligation to help everyone. No one would be surprised if you cared more and provided more for your family or friends than for some strangers. But we might nevertheless look askance, and charge you with favoritism, if you acted on those feelings in a situation in which you were obliged to be impartial. The principle of beneficence applies particularly to those we owe some special obligation or duty so that they may justifiably make some claim on our concern. For an I/O psychologist, this is likely to include clients, employees, research participants, and students, and it contributes to what generally is meant by being a professional or part of a profession (Kimball, 1992). Nonmaleficence—refraining from unjustifiably causing harm to another, or preventing harm if one can reasonably do so—probably is the most widely accepted moral principle (recall Hippocrates’ “first, do no harm”). And in contrast to beneficence, it generally is viewed as universally legitimately applicable to all, unless special circumstances permit exception. Its primacy is suggested by its prominence in the Ethics Code: Psychologists strive to benefit those with whom they work and take care to do no

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harm. . . . When conflicts occur among psychologists’ obligations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids or minimizes harm. (Principle A, Beneficence and Nonmaleficence) Moral virtue or character. Although not an ethical principle per se, the sources of this attribute are many, including a Kantian sense of duty, classical Greek philosophy, and religious teachings. It encompasses traditional moral virtues like truthfulness and trustworthiness, as well as more recently elucidated attributes from the study of moral psychology like moral sensitivity (Rest, 1994), moral attentiveness (Reynolds, 2008), moral imagination (Werhane, 1999), moral identity (Shao, Aquino, & Freeman, 2008), and moral motivation (Stocker, 1976). A psychologist with a well-developed moral character is sensitive to potential ethical problems; is motivated to avoid them or resolve them fairly if they are unavoidable; is a trustworthy colleague, accepting responsibility for his or her actions; honors commitments made; and promotes the competence and integrity of professional work with which he or she is associated.

Types of Ethical Dilemmas Now that we have some understanding of the domain of moral behavior and the elements of an ethical problem, it is possible to anticipate more specifically the nature of such dilemmas. Despite the wide variety of particular ethical dilemmas that may arise, based largely on the work of Hoffman (1988), a taxonomy of just four or five paradigmatic situations is capable of incorporating the entire domain. Hoffman studied three general types of moral problems in children’s moral development. I added a fourth (Lefkowitz, 2003) and later a fifth (Lefkowitz, 2007b). The fifth paradigm, regarding external pressure to be unethical, could be thought of as a contextual element or antecedent of any of the first four; I have chosen to emphasize it by listing it separately. The situations may overlap so that ethical dilemmas often include combinations of more than one of these paradigms. Paradigm 1. The opportunity to prevent harm: Having foreknowledge of someone to be harmed or

wronged by another. An I/O psychology manager or external consultant may be made aware of an impending but unannounced plan to close a work facility on short notice (cf. Lowman, Lefkowitz, McIntyre, & Tippins, 2006, Case 14). Senior managers are concerned about the potential adverse affects on productivity or personnel turnover in the time remaining until closure if word is leaked early. But clearly, without notice of the closure, employees may suffer more than might otherwise be the case (e.g., some may be acquiring additional financial obligations; all will have less time to cope with the impending unemployment). The I/O psychologist’s dilemma may be that he or she was made privy to this information under conditions of confidentiality. Reflecting a concern for moral character by honoring that commitment will contribute to violations of the principles of nonmaleficence, respect for people, and justice. In light of the potential harm, some states have laws requiring large employers to give at least 60 days’ advance notice to employees of plant closings or mass layoffs. Paradigm 2. Temptation: Contemplating a selfish action that would be deceitful, unjust, or potentially harmful to someone. Does the student who worked with you on that research project deserve more than merely the footnote of gratitude you were planning on providing in your publication (cf. Lowman et al., 2006, Case 40)? Does your former client know that information you acquired while working with them is now being used in some of your marketing promotions with potential new clients? Should you accept a lucrative new consulting opportunity even though you have no particular expertise in the domain of concern by virtue of qualifying education, training, study, or prior supervised experience (cf. Lowman et al., 2006, Case 55; APA, 2010, Standard 2.01[a], Competence)? Ethical conflicts of interest may contain elements of any of the paradigms presented here, but they probably are most likely to involve self-serving temptation. Having a conflict of interest generally means that one has personal interests that conflict with fulfilling one’s fiduciary responsibilities and obligations or prima facie moral duties to others (Carson, 2004). Sometimes, if the pursuit of personal interest is fully 153

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intentional and conscious, we might better speak of organizational corruption, rather than unethical behavior, because of the additional deceit and dishonesty generally incorporated in the attempt to conceal it (see following section). The Ethics Code anticipates the possibility of such conflicts and warns that we should refrain from taking on a professional role when other interests (“personal, scientific, professional, legal, financial, or other”) might reasonably be expected to impair one’s objectivity, competence or effectiveness in performing that role (APA, 2010, Standard 3.06, Conflict of Interest). Paradigm 3. Role conflict: Having competing obligations or responsibilities to the same or to two or more entities. Many, perhaps most, projects engaging the professional life of an I/O psychologist entail responsibilities to a client organization represented by some particular gatekeeper, as well as to other managers and employees on whose cooperation we depend to fulfill the project. Their interests may not all coincide. Indeed, given the history of labor–management relations in some industries and particular organizations, they might even be antagonistic, and the I/O psychologist who is insufficiently sensitive to the issue can unwittingly be misused by one side or the other (cf. Lowman et al., 2006, Case 22). If one adopts a relatively expansive values position regarding our moral responsibilities, then the interests of additional stakeholders may be invoked: for example, the organization’s customers and shareholders, the community in which the organization is located, the general public, as well as colleagues and fellow professionals. Although the Ethics Code cautions us about the potential ethical problems associated with multiple relationships, we are admonished wisely to avoid such relationships only when they could “reasonably be expected to cause impairment or risk exploitation or harm” to the person involved” (Standard 3.05, Multiple Relationships). For example, the proper exercise of one’s role as a faculty member might involve serving simultaneously as an instructor, research advisor, professional mentor, and even informal counselor to the same student(s). Paradigm 4. Values conflict: Having equally important values that are placed in opposition. Suppose 154

an employee survey respondent who has been promised anonymity alleges some serious financial wrongdoing by a senior manager who is putatively damaging the company (cf. Lowman et al., 2006, Case 52). The I/O psychologist may have to choose from among several courses of action (which include the option of doing nothing) that attempt to balance the obligation to protect promised anonymity and encourage legitimate whistleblowing of wrongdoing in the organization, while also seeking to avoid harming a potential victim of mere gossip and preventing further damage to the organization and its shareholders. Paradigm 5. External pressure to violate ethical standards. Each of the preceding four paradigmatic situations may be occasioned or exacerbated by contextual or extrinsic factors such as pressure to violate one’s ethical standards as a function of one’s position, tenure, or work group membership in an organization (Posner & Schmidt, 1987; Victor & Cullen, 1988). Such pressures also may stem from the norms and standards of the organization reflected in its better-or-poorer organizational ethical culture (Douglas, Davidson, & Schwartz, 2001), as communicated by the relative quality of ethical leadership provided by the organization’s top management (Weaver, Treviño, & Cochran, 1999). Managers—who may be the superiors or the clients of an I/O psychologist—can be subject to pressures for productivity, efficiency, speed, and profitability that at times can be at odds with ethical standards. The Ethics Code (Standard 1.03, Conflicts Between Ethics and Organizational Demands) recommends that psychologists facing such a conflict make known to organization decision makers their commitment to the Ethics Code. The 2002 Ethics Code, however, concludes rather half-heartedly and ambiguously (albeit perhaps realistically) that we “to the extent feasible [emphasis added], resolve the conflict in a way that permits adherence to the Ethics Code” (APA, 2002, but see p. 158 for the 2010 revised text). Moreover, a recent modification to Standard 1.03 makes it clear that under no circumstances can a lack of such “feasibility” be used to condone the violation of human rights (APA, 2010).

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Unethical Behavior Versus Other Forms of Misconduct: A Comparison Similarities and differences among various generic forms of misconduct have been discussed (Lefkowitz, 2006, 2009b) and so are reviewed only briefly here. Unethical behavior (UB). It should be emphasized that all five ethical challenges have something very important in common: They are experienced by the person as dilemmas—that is, each assumes at least some motivation on the part of the protagonist to do the right thing, if that can be determined and the obstacles or competing temptations or pressures can be overcome. That assumption has profound implications concerning our conception of the causes of unethical behavior and the likely effectiveness of various strategies and programs designed to discourage it and to encourage ethical compliance. UB consists of a violation of one or more of the traditional ethical principles. Because this conception of UB assumes the transgression to be at least somewhat unavoidable or unintentional in nature and the actor at least somewhat reluctant or ambivalent (Banaji, Bazerman, & Chugh, 2003), it is the form of potential misconduct most likely to be affected favorably by moral prescriptions, ethical codes, and other forms of educative communications and social sanctions. This assumption also accounts for the importance of attributes like one’s personal values and moral sensitivity, and the emphasis on effective ethical reasoning in dealing with ethical dilemmas. So-called intentional unethical behavior is another kettle of fish (see the section Organizational Corruption). Incivility, or rude behavior. Recall the segmentation of behavior by moral psychologists into the three categories of egoistic, conventional, and moral behavior. A clear distinction between the latter two is sometimes difficult to discern, so that it may be difficult to differentiate “mere” unconventional, rude, perhaps even antisocial or hostile behavior that does not sink to the level of being unethical or particularly harmful, from norm-violating behavior that clearly is immoral. Organizational corruption, organizational deviance, organizational misbehavior, and

workplace deviance or counterproductive work behavior. These are somewhat overlapping constructs which, unfortunately, are each represented by rather distinct and separate areas of scholarship (cf. Ashforth, Gioia, Robinson, & Treviño, 2008; and Lefkowitz, 2009b, for discussions of the attendant problems and attempts at integration). Unlike UB and rude behavior, these behaviors all tend to be conceived as intentional or volitional transgressions of specific organizational norms or basic moral standards. THE MULTIPLE ROLES AND WORK ATTRIBUTES OF I/O PSYCHOLOGISTS AND THEIR ETHICAL IMPLICATIONS Until recently, ethics appears to not have been a particularly salient concern of I/O psychologists. In surveys of the membership of the Society for Industrial–Organizational Psychology concerning their areas of interest, ethics ranked in the middle of the pack (Schneider & Smith, 1999; Waclawski & Church, 2000), only 7% of I/O psychologists viewed integrity and ethics as among the most critical competencies (Blakeney et al., 2002), and ethical–privacy issues ranked 44th (tied) among 50 areas of published I/O psychology research from 1963 to 2007 (Cascio & Aguinas, 2008). I/O psychologists variously occupy primary or secondary work roles as (a) member of an academic faculty and instructor of undergraduate and graduate students; (b) researcher, in either an academic or other organizational setting; (c) practitioner, either as an employee of the organization served or as an external consultant to one or more organizations; and (d) administrator, manager, or supervisor within a business, academic, government, research, consulting, or other sort of organization. Each of these roles entails the potential for encountering different sorts of ethical challenges, although some ethical issues apply across the board: for example, issues of maintaining competency in one’s work activities (Standard 2.01, Competence) or conducting oneself with honesty and integrity (Principle B, Fidelity and Responsibility; and Principle C, Integrity). 155

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I/O Psychologist as Educator Some of the potentially salient issues likely to be faced by those of us involved in the education of undergraduate and graduate students are enumerated in the Ethics Code. These issues include ensuring that our courses and programs are designed to provide the appropriate materials and experiences, that these programs live up to our claims, and that our descriptions of course content and program requirements are accurate. (More information on these issues can be found in Chapter 12 of this volume.) As educators of future I/O psychologists or business managers, we bear some responsibility for trying to shape their ethical standards and future behavior (Lefkowitz, 2004). In that context, it is dismaying to note that among a convenience sample of 29 I/O textbooks from the 1960s, 1970s, 1980s, and 1990s reviewed in 2002, the topic of ethics appears in just six indexes—mostly just as a passing mention of the existence of the Ethics Code (Lefkowitz, 2003). The terms morals or morality are not mentioned at all.

I/O Psychologist as Researcher Perhaps the outstanding ethical matter concerning the research activities of I/O psychologists is that most of our research is not conducted with the intention of benefiting directly those who participate in it as research participants. (More information on issues in research in general can be found in Chapters 16–20 of this volume.) Academic researchers may be driven by their intellectual curiosity or by generic organizational issues to investigate constructs of interest to contribute to the general fund of social science knowledge (e.g., what is the role of organizational leadership in promoting prosocial work behavior?). Research-oriented practitioners often are motivated to solve specific organizational problems defined by organizational objectives (e.g., what is the most effective way to select and hire employees from among the candidates for these positions?). Such research projects or employee– selection test validation studies may yield findings of considerable value to the future functioning of the organization, but they rarely benefit directly those from whom the data were obtained. Employees nevertheless may benefit indirectly from the resulting improvements in organizational functioning or 156

working conditions that may be implemented widely throughout the organization. Lefkowitz (2003) elaborated on this issue, including consideration of research intended to benefit those who participate in it. Therefore, it behooves us to be especially respectful and appreciative of the cooperation provided by prospective participants— whether they are students from a psychology department participant pool or employees—as they quite literally enable our research. In particular, and in this context, the foundations of the ethical treatment of research participants are profoundly important: encouraging voluntariness of their participation, ensuring absence of coercion to participate or to continue participating, providing prior informed consent regarding any aspects of the project that might reasonably deter someone from participating, and maintaining their well-being throughout the research enterprise (cf. APA, 2010, Standards 8.02–8.08, Dealing With Research; Lefkowitz, 2007c). But there is an interesting issue to ponder. From a legal standpoint, it has been made abundantly clear by the courts and sometimes by collective bargaining agreements that employees may be required as a condition of their employment to cooperate with and participate in legitimate workrelated organizational research or similar activities. This is reflected in the Ethics Code, which allows dispensing with informed consent in “the study of factors related to job or organization effectiveness conducted in organizational settings for which there is no risk to participants’ employability, and confidentiality is protected” (Standard 8.05, Dispensing With Informed Consent in Research). How does that jibe, then, with the general ethical strictures regarding voluntary participation and absence of coercion? It always has been my practice, and later my recommendation to others, if at all possible to behave as if the requirement obliging employee participation did not exist. In my experience, if a legitimate project is adequately explained and the conditions of participation are fair and reasonable, very few employees will refuse to participate; and for some projects, the meaningfulness of the data that might be obtained from employee–participants who felt forced to contribute might be suspect, in any event. Even more important, do you want to be working in or for an

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organization that coerces (or needs to coerce) participation? Is that coercion even beneficial to the organization in the long term? What does it suggest regarding our metaobjective of always striving to make organizations more gratifying places in which to work? And if you are seen as coercing employee participation in your project, what is your long-term effectiveness in that organization likely to be? A ubiquitous issue in psychological research has been the practice of deceiving potential research participants about some aspect(s) of the study in which they are about to participate (Baumrind, 1985, Lawson, 2001). Deception has been most prevalent in experimental, as opposed to nonexperimental, procedures and in social psychology as opposed to applied psychology in general or I/O psychology in particular (cf. Lefkowitz, 2003, Chapter 14, for a review of the issues). The Ethics Code (Standard 8.07, Deception in Research) appropriately reminds us that the use of deception must be justified by the value of the study to be conducted and only when “effective nondeceptive alternative procedures are not feasible” to investigate the research problem. Unfortunately, however, Standard 8.07 also establishes a rather wide latitude of acceptability for deception, ruling it out absolutely only for “research that is reasonably expected to cause physical pain or severe emotional distress.” Very few psychological studies are that noxious. In my opinion, deception is never appropriate in organizational research with employees except for the most benign forms of deceit. For example, suppose one is interested in investigating the impact of biosocial similarity of supervisor–raters to their subordinate–ratees on their performance appraisal ratings. To avoid sensitizing respondents to the issues and obtaining possibly distorted data, it is arguably necessary and ethically acceptable to omit in one’s informed consent description that the study is about rater bias, or gender, ethnicity, and age issues (i.e., passive deception).

I/O Psychologist as Practitioner1 As noted, research often does not aim to benefit directly the very participants we need for its

implementation. An analogous ethical issue is raised by the observation that our “client” is most often the organization or some substantial unit of it, frequently represented by some managerial gatekeeper(s), whereas the projects or other activities in which we engage often involve working with other employees. Moreover, unlike other helping professionals (e.g., clinical psychologist, social worker, medical personnel, school psychologist), I/O psychologists generally are trained primarily to benefit the organization, not individuals. Although that does not necessarily or always imply a conflict between the two, it does introduce the possibility of such and hence a potential difficulty concerning our goal “to improve the condition of individuals, organizations, and [emphasis added] society” (Ethics Code, Preamble). For example, we have a duty to help our client or employer organization be more effective; we also have a responsibility to better the work lives of employees therein. When we contribute to the redesign of work methods that are likely to yield efficiencies that could result in some people losing their jobs, depending on the details of the situation, the moral calculus may be problematic: Have we benefited the organization at the expense of some individual(s), or might the newly redundant workers be productively reassigned, not terminated? The Ethics Code has anticipated some of these sorts of issues. For example, I earlier noted Standard 3.06, Conflict of Interest, in which we are forewarned against taking on a professional role when other interests or relationships could reasonably be expected to impair our objectivity, competence, or effectiveness. Standard 3.06 goes on to add: “or . . . expose the person or organization with whom the professional relationship exists to harm or exploitation.” In particular, then, the I/O psychologist should be on guard against situations in which we may be called on to comply with inappropriate managerial directives that are detrimental to the wellbeing of employees (cf. Lowman et al., 2006, cases 22, 25). Standard 3.07, Third-Party

1

Many potential ethical issues arise in connection with the process of employee selection, which is a major work activity of I/O psychologists. These were discussed by Lefkowitz and Lowman (2010) at greater length than is possible here.

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Requests for Services, indicates prudently that we should attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist . . . and identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. Special note should be taken of Ethics Code Standards 1.03 and 1.02, which have recently been amended. Both standards are quoted in their entirety, beginning first with Standard 1.03. Standard 1.03, Conflicts Between Ethics and Organizational Demands If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. (APA, 2010) On the one hand, it may readily be observed that how much “clarification” and “commitment to the Ethics Code” is to be expected of the ethically minded psychologist is unspecified. There are even differences between individuals and cultures regarding what constitutes a “human right.” In other words, to the cynical minded, Standard 1.03 still may be seen as providing justification for capitulating on ethical principles when it would be too inconvenient or costly to uphold them. On the other hand, what might be the alternative? Could the Ethics Code reasonably adopt the general position of requiring the I/O psychologist to resign his or her job, if necessary, to be in compliance with the code?

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Clearly, details of the specific situation, including the nature and severity of the contemplated transgression, will be of great importance. Standard 1.02 is even more disturbing, albeit perhaps less salient to the customary work activities of I/O psychologists. Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. (APA, 2010) Until it was amended in early 2010, Standard 1.02 permitted adhering unconditionally to the law, regulations, or other governing legal authority if the conflict seemed unresolvable. This standard became infamous as in effect providing, 60 years after the Nazi war crimes trials, a putative justification for the repudiated Nuremberg defense (“I was just following the law” or “just following orders”; Pope & Gutheil, 2009). And awareness of the prominent role of some psychologists in the U.S. program of so-called enhanced interrogation (i.e., in at least some instances, torture) that was deemed legal by the Bush administration brought a resounding outcry within psychology (e.g., Olson, Soldz, & Davis, 2008) and considerable adverse attention to the profession (e.g., Lewis, 2006; Shane, 2009), leading to the recent modifications of the Ethics Code. (More information on institutional conflicts can be found in Volume 1, Chapter 5, this handbook.) One might provide those psychologists with the benefit of assuming that they were motivated by patriotic zeal and a concern for “national security” following the attacks of September 11, 2001, and

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that they experienced a Paradigm 4 ethical dilemma (i.e., values conflict), which they resolved by actively participating in the interrogation program. To do so, however, meant that they must have subordinated to those patriotic values many of the established universal ethical standards shared by the civilized moral community, in general, or qualified those standards as not applicable to these captured persons, as well as having ignored the particular primary obligations of psychologists to avoid harming others and preventing misuse of their competencies as psychologists. Hence, APA added the deontological prohibition against violating human rights. Before the reader dismisses this topic as not at all relevant to the customary practice of I/O psychology, it should be observed that Standard 1.02’s generalized trumping of ethical principles by compliance with legal authority is not limited to lifeand-death matters of torture and warfare. The moral principles at issue are verities that have for the most part withstood the test of time and cultural applicability, whereas laws, regulations, and governing legal authorities change regularly. For example, before passage of the Voting Rights Act of 1965 in the United States, it would have been entirely legal for an I/O psychologist to have developed for a state government a difficult written examination on esoteric details of that state’s constitution to be used as a qualifying standard to vote in all elections in that state—even though the exam primarily reflected systematic differences in the education level among subgroups of the population. Few, I believe, would now accept the policy as ethical practice.

I/O Psychologist as Manager or Supervisor At some point in their careers many I/O psychologists have considerable managerial responsibilities (e.g., within a large human resources department in the private or public sector, as a principal in a consulting organization, as an educational administrator) as well as, or instead of, their role as professional psychologists, per se. Perhaps the most relevant points for our purposes are that this means that (a) the I/O person’s sphere of legitimate influence and authority over others is larger—often much larger; and (b) she or he is more likely to be looked to as a role model of appro-

priate values, attitudes, and behavior within the organization. With such increased power comes increased responsibility in its just exercise, as recognized by the Ethics Code’s admonition against exploiting persons over which the psychologist has some authority (Standard 3.08, Exploitative Relationships). And the implications of those observations should be viewed in light of the considerable empirical evidence “emphasiz[ing] the salience of managerial leadership in the development, communication and effectiveness of an organization’s goals, policies, practices, and expectations regarding morally relevant matters” (Lefkowitz, 2009b).

The 800-Pound Gorilla in the Room: The Role of Personal and Social Values Even with the existence of widely agreed-upon moral standards, a common legal framework, detailed written ethical codes and case books, treatises such as this one, and similar educational and professional socialization experiences, well-meaning individuals still may come to different conclusions regarding the propriety of particular actions. The reasons (aside from the uneven distribution of requisite factual information and training in ethical thought) frequently have to do with one’s personal and social values. Values can be defined as relatively stable cognitive representations of what the person believes are desirable standards of conduct [instrumental values] or generalized end states [terminal values]. They have affective and evaluative components in that they are experienced in terms of their relative importance in the person’s ideal selfconcept; they have a motivational component in that they serve to initiate and guide people’s evaluations, choices, and actions. (Lefkowitz, 2003, p. 139) That is why, as noted, ethical reasoning is crucial to the enterprise—advancing and defending transparent arguments: “A moral judgment is true if it is backed by better reasons than the alternatives” (Rachels, 1993, p. 40). It is important to recognize that the sort of reasoning referred to is what the

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stoics called right reason—that is, genuinely trying to acknowledge and account for the potential influences of our personal biases. “When reasoning is fully developed, a person attains the capability of acting morally, of doing what is right rather than what is naturally advantageous” (Arrington, 1998, p. 112). I previously have criticized I/O psychology for naively (or disingenuously) propounding that our work is entirely scientific—that is, value free (Lefkowitz, 2003, 2005, 2008, 2009a). As discussed, some indicators of our implicit values positions include the ubiquitous managerial perspective or bias that characterizes the field; the almost exclusive use of economic business criteria by which to evaluate our own work (in addition to statistical meaningfulness); the relative abandonment of the humanist tradition in psychology (Kimble, 1984) as well as the professional ideal of social responsibility (Kimball, 1992); the near absence of I/O psychologists working for or with labor unions and nonprofit organizations; similarly, our relative inattention to the working poor, contingent workers, or the underemployed and unemployed; our silence regarding matters of overt distributional injustice in corporations, and wrongful discharge of employees; and others. However, some welcome changes in this regard can be noted (Carr, 2007, 2008). What accounts for the maintenance of the value-free fiction? Although that is a topic that would take us too far afield, here, I suspect that a variety of antecedents conspire to produce in most I/O psychologists a personal value system that is congruent with prevailing corporate values (cf. Lefkowitz, 2010). People most readily recognize their implicit values when they are discordant with or challenged by competing views. Because the values of our profession to which we mostly subscribe “fit” so well in the corporate world in which we work, they largely go unrecognized and unremarked upon by us. Moreover, such value congruence is amply reinforced. It contributes to our occupational and job satisfaction, our identification with the profession, and with the organizations in which we function (Edwards & Cable, 2009). It facilitates our effectiveness and success in working with those organizations, but it probably also contributes to the astounding misperception that we 160

operate in organizational social systems that have no salient social values. The inescapable role of personal and social values even in supposedly pristine science has long been acknowledged: “The controversy is no longer about whether values influence scientific practice, but rather about how values are embedded in and shape scientific practice” (Howard, 1985, p. 255). And the supposed unambiguous distinction between facts and values that has been challenged as erroneous in the context of objective science versus subjective values similarly has been challenged in terms of a business facts versus ethical values dichotomy (Harris & Freeman, 2008). Moreover, as social scientists, we should not feel apologetic or be resistant to this reconceptualization: “A social science that sought to efface the moral dimension from its descriptions and explanations would simply serve the interest of some other moral conception. It would reflect values foreign to those that animate our conception of ourselves” (Rosenberg, 1995, p. 205). In fact, that is exactly what I have previously criticized I/O psychology for having done. Maintaining the fiction of being value free simply provided a normative space in which the economic business values of the organizations we serve have become dominant, replacing the traditional humanistic values of psychology (Lefkowitz, 2005, 2008, 2010). As noted (Lefkowitz, 2003; Lefkowitz & Lowman, 2010), like it or not, our technical competencies, professional judgments, and ethical deliberations are all inextricably played out within the context of our personal values as these may be manifested by answers to such questions as Whose interests matter? Relatively how much? Who should benefit? and so on. For example, I have spoken with consulting I/O psychologists who have no reservations about accepting as a project from a new client a range of activities all of which are expressly and entirely aimed at preventing employees from achieving union representation. Some others of us would not accept such an enterprise. Or, suppose the reader and I jointly conducted a successful criterionrelated selection test validation study. As part of the study we have appropriately (i.e., scientifically) determined a point estimate for an operational passing score on the predictor tests to be used for

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employee selection. But we have also calculated the standard error of measurement (SEM) associated with that predictor score. Assume that we disagree on our recommendation to the employer. Out of a preponderance of concern for the performance level of those to be hired, as that presumably contributes to the effectiveness of the organization, you prudently recommend setting the cutting score 0.5 SEM above the point estimate. On the other hand, because of an abundance of concern for qualified applicants who inappropriately would be denied employment by your policy (“false negatives” or “false rejects”), I recommend setting the cut-score 0.5 SEM below the point estimate—thus, however, increasing the number of applicants who would be hired inappropriately (“false positives” or “false hires”). (Incidentally, the decline in “false rejects” ordinarily will be larger than the increase in “false hires.”) Is this an ethical issue—that is, is our disagreement one about an intentional choice with significant consequences for people, involving potential harm and benefit? Yes. Is there a way to determine objectively which option is better? No, there is not. In the first place, what is better will vary with people’s value preferences. Hypothetically, we might be able to calculate some (probably not all of) the financial costs and benefits to the organization of each option. But how do we value the costs to those incorrectly denied employment (as well as to their families and to society), to include that in the moral calculus? I/O psychologists typically have been concerned with the costs and benefits only to the organization. Can either the psychologist or the organization legitimately be charged with recommending an unethical course of action? Most decidedly not. So, what does it mean to acknowledge that there is disagreement concerning an ethical issue but that neither side can be justified unequivocally as wrong or right? It means that we differ in our values. In particular, we may differ in how we define the values reflected in ethical principles of fairness, justice, caring, and respect for persons; in the importance we attach to each; and in the

extent to which those principles are to be applied to different constituencies. Hopefully, we then could discuss the matter and ascertain which of our conflicting recommendations is “backed by better reasons than the alternative.” MAKING ETHICAL JUDGMENTS How do people react when faced with an ethical dilemma? That is, how do we (and how should we) go about making the requisite choices? What are the normative standards relied on in making ethical judgments?2 There are, broadly speaking, five (albeit overlapping) alternatives: the legalistic approach, the cookbook approach, being virtuous, the intuitive approach, and ethical reasoning.

The Legalistic Approach Every society codifies its customs in a set, or multiple sets, of laws. One of the narrowest approaches to morality is to view the domain as circumscribed entirely by those laws. People who take this approach hold that “if it’s not against the law, then it’s ethical.” This has the advantage of clarity and precision (although, as we know, legal interpretations do vary). A well-known example of this approach at the organizational level is Milton Friedman’s (1970) passionate arguments against voluntary corporate acts on behalf of society (corporate social responsibility): Because such actions are not legally required, they are morally unjustifiable (or, perhaps, vice versa). Such moral minimalism has a number of drawbacks. First, laws generally focus on what is proscribed and so fail to deal with aspects of the moral domain that involve proactive, prosocial actions as reflected in the ethical principles of beneficence and virtue. And, as noted, laws may not at any given time correspond to society’s notions of morality. Before the passage of the Civil Rights Act in the United States in 1964, many I/O psychologists were engaged in instituting employee selection tests that inappropriately screened out ethnic minorities, with virtually no evidence for the job-relatedness or

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As noted, I refer here to the deliberations of persons trying to be ethical and to avoid UB, not to voluntary and intentional instances of organizational deviance or counterproductive work behavior.

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validity of the examinations. Although unjust, it was perfectly legal to do so, even though that approach failed to reflect best practices for employee selection at the time. Laws also do not necessarily correspond to moral standards of fairness and justice. For example, U.S. Supreme Court Justice Scalia has noted, “This court has never held that the constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent” (Liptak, 2009).

The Cookbook Approach If one is fortunate, one will be able to locate a particular dilemma in applicable ethical codes, case books such as Lowman et al. (2006), or other such treatises and follow the recipe therein to solve the problem. Sometimes that approach is possible, and thus it is worthwhile to become familiar with those materials. But ethical codes tend to be written at some level of generality (to enhance their potential applicability and because the specific variations on any theme are innumerable), and conversely, case books often are limited in scope and the case details may be too specific to correspond to one’s current concern.

Being Virtuous What about simply being virtuous? Certainly, that is always a good thing, right? Well, yes, as far as it goes—except for a number of difficulties (Pence, 1993; Rachels, 1993). Virtue theory often is short on justifying just what qualifies as a moral virtue—and what does not; consequently, different sources tend to promote different lists of virtues. Even those relatively unambiguous virtues (e.g., “honesty”) often fail to be operationalized in a fashion that permits us to know what the requisite behaviors are—that is, how one is to be honest in the particular situation. Not only are there individual differences in the conceptualization and expression of honesty, the appropriate manifestations may vary with the situation—that is, there is also intraindividual variation in displays of honesty (Murphy, 1993). And, last, we may receive little direction when virtues conflict (e.g., honesty and nonmaleficence). What is the proper (likely?) response to one’s spouse, who 162

asks, “Do these trousers make me look fat?” And virtue may be especially difficult to live up to when it conflicts with self-interest—for example, how do you reply to a potential client who asks, “Your competitor guarantees that if we implement their selection test our productivity will increase at least 20%; what can you offer?”

The Intuitive Approach In recent years, the traditional work of moral philosophers and moral (mostly developmental) psychologists has been supplemented by work in evolutionary psychology and neurocognitive psychology, emphasizing the role of inborn emotional responses to morally challenging situations. For example, modern evolutionary theory accommodates well the following findings: the propensity to develop prosocial, altruistic behavior as a consequence of both mindless automatic information processing as well as by controlled rational deliberation guided by conscious moral standards (Krebs, 2008); areas of the brain involved in one or the other sorts of activities are activated in response to different kinds of moral dilemmas (Greene, Sommerville, Nystrom, Darley, & Cohen, 2001); both automatic and controlled processes have been applied to the study of ethical decision making in the business context (Reynolds, 2008); some morally relevant situations elicit immediate emotional reactions that are experienced as automatic moral judgments that precede whatever rational deliberations might follow (Haidt, 2001); and, similarly, emotional reactions to moral value statements that disagree with one’s personal values occur very quickly—prior to evaluative processing (Van Berkum, Holleman, Niewland, Otten, & Murre, 2009); however, those automatic processes may be susceptible to unconscious biases that can be overcome when slower deliberative processes are possible (Kern & Chugh, 2009). However valuable this growing body of research proves to be in furthering our understanding of the evolutionary and developmental history of moral behavior, it offers little at this time for those seeking guidance in how to respond appropriately to difficult ethical challenges. That is, even in those instances in which one might

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experience an immediate involuntary noxious reaction to a morally relevant situation so that one might thereby be motivated to do something (e.g., being pressured to violate the confidentiality promised to survey respondents), what to do and how to arrive at that judgment still remain to be worked out.

Ethical Reasoning Therefore, based on the limitations of the preceding four options, some engagement in the process of right reasoning (even if only as a supplement to one or more of the other approaches) seems inevitable, hence worth systematic consideration. I suggest that we think in terms of a two-stage process: preparation and ethical reasoning per se (cf. Lefkowitz, 2003, Chapter 15, for a fuller exposition). And, as noted, the approach can be useful only to those desirous of doing the right thing; it does not apply to those bent on committing intentionally uncivil, hostile, fraudulent, or corrupt acts. Stage 1. Practicing “moral hygiene.” The prudent professional will have spent some time preparing for the likelihood of an ethical challenge before encountering one, and to the extent feasible, will have taken steps to prevent its occurrence. Pryzwansky and Wendt (1987) have emphasized this cautionary approach; Canter, Bennett, Jones, and Nagy (1994) have helpfully itemized some of the specific steps that can be taken; and I have applied those steps to I/O psychology (Lefkowitz, 2003; Lefkowitz & Lowman, 2010). They are only briefly summarized here: (a) be familiar with applicable ethical codes such as from the APA and other professional organizations (e.g., International Association of Applied Psychology, 2008; International Task Force on Assessment Center Guidelines, 2000); (b) be familiar with applicable laws and regulations, including those governing various aspects of employment practices such as the Uniform Guidelines on Employee Selection Procedures (Equal Employment Opportunity Commission, Civil Service Commission, Department of Labor, Department of Justice 1978); (c) be familiar with the policies, regulations, norms, expectations, and

any ethical code of the organization in which you work as well as any client organizations, which, among other benefits, will alert you to any potential conflicts with broad-based ethical requirements, as anticipated by the Ethics Code, Standard 1.03; (d) continue to educate yourself regarding ethical issues and professional matters that affect competence; (e) maintain a mind-set of “ethical watchfulness” and identify potential ethical problems; and (f) learn and practice some method(s), such as the one presented here, to analyze ethical problems in challenging circumstances. Stage 2. Taking moral action: Ethical decision making. A variety of practical decision-making models of ethical reasoning have been proposed over the years. (More information on ethical decision making can be found in Volume 1, Chapter 4, this handbook.) Some of these have been reviewed by Pryzwansky and Wendt (1999) and by Wittmer (2001), and I have synthesized a model that reflects much of this earlier scholarly work (Lefkowitz, 2003, 2006). The model is presented didactically in Exhibit 8.1 as consisting of 11 steps within four broad phases of analysis: problem identification, information gathering, problem analysis and choice, and follow-through. However, these steps are not necessarily discrete, but often overlapping; and the actual problemsolving process seems often to not follow a linear progression of steps in order. One might automatically begin deliberations in the middle of the sequence and proceed in an iterative and cyclical repetition of some of the steps. Perhaps the major benefit to be garnered from such a model is not its helpfulness in the individual instance, but in a cumulative effect to be had by repeated use, or even mere rehearsal of its use. Koocher and Keith-Spiegel (1998) have written that such procedures may help “fine-tune and shape appropriate responses” (p. 12). The last sentence of the first text written about ethical issues in I/O psychology is probably worth repeating here: “It may be unreasonable to expect an entirely satisfactory resolution of every ethical dilemma, but producing increasingly skilled efforts to do so should be the objective” (Lefkowitz, 2003, p. 412). 163

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Exhibit 8.1 A Model of Ethical Decision Making Problem Identification 1. Is the Problem an Ethical One? Are the consequences of choices to be made likely to affect the well-being of others? Does it involve the potential violation of moral principles? 2. Assess the Structure and Complexity of the Problem. What are the key issues and who are all the stakeholders affected? Can you identify one (or more) of the five paradigmatic forms of ethical dilemmas (see the section “Types of Ethical Dilemmas”)? What, if any, are the personal consequences for you? Information Gathering 3. Get the Facts. How certain are you of the facts of the matter—as distinct from unconfirmed assumptions and conjecture— regarding the causes and nature of the problem, as well as the anticipated consequences? Can you be more certain? 4. Assess the Seriousness of the Problem. Is there the possibility of physical, economic or emotional harm to someone(s)? How many people are likely to be so affected? What is your relationship to them, and how does that affect the dilemma? Are you under pressure to act quickly or can you be more deliberative? Problem Analysis and Choice 5. Restate the Problem in Ethical Terms. Based on the first four steps, state the problem as clearly as possible in ethical terms. What precisely is causing the conflict? What are the ethical stakes at risk? 6. Is There a Readily Available Solution? Perhaps the appropriate action is self-evident, although perhaps distasteful in some respects? Is a compromise feasible (e.g., by accepting one moral value as more important than another with which it conflicts)? Does your advance preparation indicate a published solution in some professional documentation? Do colleagues or other trusted confidantes agree on the appropriate action to be taken? 7. Acknowledge Your Own Values and Self-Serving Biases, as Well as Any External Pressure. What are the internal or extrinsic forces that might serve to distort the quality of your right reasoning? Can you acknowledge their potential role as providing a post hoc “values justification“—that is, rationalization—for a self-serving choice? 8. Enumerate All Options and Their Consequences. Take a “brainstorming” approach in attempting to identify all possible alternatives, no matter how unlikely. Similarly, try to anticipate all the implications of each option for all stakeholders. What do you know about yourself that’s likely to limit or distort your perspective? 9. Evaluate and Choose. Keep in mind the guiding principles for right reasoning: universalism (appropriate consideration of the interests of all) and universalizability (you would accept others making the same choice as you have) so that you are satisfied that the arguments favoring your choice are better than those supporting the other options. In particular, you are sanguine that self-interest has not played a major role in your decision. Follow-Through 10. Implement the Choice. If possible, share your tentative decision beforehand with those affected. Is there something you missed? Bear in mind that implementing a solution, especially in complex social organizations, may be more difficult and require a different skill-set than the ethical decision making per se. So plan carefully; your good intentions may not be the only (or even primary) determinant of actions taken. 11. Evaluation and Review. Did the consequences turn out as expected? If not, why not? Did you misread the situation to begin with? To what extent has the initial problem been resolved? Have the actions taken caused additional difficulties that must be attended to? If so, have you acknowledged your responsibility? What have you learned that will be useful the next time around?

Note. Based on materials from Lefkowitz (2003).

References American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57(12), 1060–1073. doi:10.1037/0003-066X.57.12.1060 American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, 164

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CHAPTER 9

LIFE AND EXECUTIVE COACHING: SOME ETHICAL ISSUES FOR CONSIDERATION Sharon K. Anderson, Patrick Williams, and Allison L. Kramer

Over the past couple of decades, coaching has emerged as a recognized career or proficiency for psychologists. The coaching profession has grown tremendously since 1998, and the number of life and executive coaches within the United States has been estimated in the tens of thousands. As a result of this growth, the coaching profession has become a widespread topic of discussion in the popular press (Hall, Otazo, & Hollenbeck, 1999; Grant, 2003). This chapter addresses some of the major ethical issues facing coaches and the coaching profession. We review issues surrounding competence or retraining for coaching, discuss the issue of creating and maintaining appropriate boundaries (especially how these boundaries may vary from those found in mental health or psychotherapy services), and explore how ethical guidelines for coaches address the issue of when to make referrals. In addition, we discuss the ethical issues of confidentiality, informed consent, and the client–coach–sponsor triad, all of which can influence and complicate the coaching process. As we discuss ethical guidelines and standards in the coaching profession, we draw on the work and ethical codes of two coaching organizations: the International Coaching Federation (ICF) and the International Association of Coaches (IAC). To set the context for our discussion, we begin this chapter with a brief overview of coaching and its history. We follow this overview with a brief discussion of the similarities and distinctions between the practice of coaching and the practice of clinical psychology and psychotherapy, which we then relate to the ethical concerns.

AN OVERVIEW OF COACHING As a basic frame of reference, psychologists who work with people in the capacity of coach are working with individuals, whether in the personal domain or career domain, to help them create new thoughts, emotions, or behaviors that will facilitate positive results (Douglas & McCauley, 1999; Grant, 2003). Ultimately, coaches work with clients to help them expand their choices and awareness of relationships or events in life in which the clients desire personal or professional change. The term coach, which referred to a carriage pulled by a horse, was first used in the 1500s in a small town in Hungary (Smith, 2010). Three hundred years later, the term referred to a person who assisted university students in the United Kingdom in preparing for exams. Here in the United States, around the 1950s, businesses began to hire consultants, who would now be referred to as executive coaches, to provide guidance about ways to increase company productivity. In the 1980s to the mid1990s, the field of coaching expanded to include different specializations, such as personal or life coaching, career coaching, and leadership coaching (Smith, 2010; Williams, 2006). In recent years, more and more research has been done and evidence-based theories have been developed to create the beginnings of a body of knowledge and evidence that coaching can call its own (Stober & Grant, 2006). As the profession of life coaching evolves, it becomes more uniquely defined and described through role clarification

DOI: 10.1037/13272-009 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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and designation (Williams, 2006). Professional coaching organizations and associations have sought this clarification and designation. Early in the 1990s, several training schools for life coaches were launched and professional coaching associations and organizations were created (Williams, 2006). Two of the major organizations were the Professional Coaches and Mentors Association and the ICF. In 1996, these two associations merged under the name of ICF, which soon became a leading international organization to represent the coaching profession. Several other coaching organizations have developed since the mid-1990s. One of these is the IAC, which was launched in 2003. Although various organizations credential life and executive coaches, the two flagship organizations are the ICF and the IAC. For this chapter’s discussion, we draw on the ethical standards and guidelines from these two organizations. Life coaching borrows from and builds on theories and research from related fields, such as psychology and philosophy. As such, coaching is a multidisciplinary, multitheory synthesis and application of applied behavioral change concepts and methods. Although coaching has a unique paradigm, much of what is used in coaching goes back decades and even centuries.

Coaching and Psychotherapy: Similarities and Distinctions Some who write about and research coaching suggest that the worlds of psychotherapy and coaching are not that distinct. For example, the field of counseling psychology, as a discipline and body of knowledge, is close to coaching in the client issues and type of services offered. Possibly this is one reason why Bono, Purvanova, Towler, and Peterson (2009) have suggested that in the end, there are no “clear lines to separate coaching from therapy” (p. 264). Others, such as Grant (2001), have proposed that therapy and coaching might actually represent a type of continuum; on one end are those clients who need psychotherapy because they represent the clinical population, while on the other end are those clients (e.g., business executives) who are psychologically healthy but seek executive coaching to enhance their 170

professional performance. As Spence, Cavanagh, and Grant (2006) have stated, “Coaching is not concerned with treating deep personal problems (the aim of therapy and counseling), but rather to assist healthy people unlock more of their potential and become more effective” (p. 80). The middle of the continuum represents those clients for whom the needed services (therapy or coaching) might be more difficult to delineate clearly. More recently, some have suggested that coaching, and more specifically “coaching psychology,” actually finishes out or addresses a point on the mental health continuum that the field of clinical psychology has left unaddressed. Dr. Anthony Grant at the University of Sydney, Australia, first coined the term coaching psychology. Grant (2006) spoke of coaching psychology as providing a unique niche to help psychologists understand and work beneficently with individuals who are high functioning and mentally healthy. Linley and Harrington (2005) have proposed a connection between coaching psychology and positive psychology. They, too, suggested that coaching picks up where clinical psychology leaves off. They stated that both positive psychology and coaching psychology are explicitly concerned with the enhancement of performance and wellbeing, beginning at the level of the individual. Arguably, one may suggest that this definition applies to the whole of psychology. In practice, however, most psychologists may have traditionally considered their job to be done when the “client” was free of psychological problems and difficulties. To the positive psychologist and the coaching psychologist, that is to stop at only half way. (pp. 2–3) For Linley and Joseph (2004), coaching psychology and positive psychology both work “to promote optimal functioning across the full range of human functioning, from disorder and distress to health and fulfillment” (p. 4). According to Williams (2006), positive psychology looks at the assets of the client and therefore is the theoretical underpinning for the coaching practice.

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In addition to the type of client issues served, there is a difference in context for coaching and psychotherapy. Some of these differences, which have been discussed in the literature (Kilburg, 2000; Levinson, 1996; Richard, 1999; Sperry, 1993, 1996; Tobias, 1996) and summarized by Kampa-Kokesch and Anderson (2001), revolve around the actual practice. Differences include the context in which or the location where the intervention takes place. For example, coaches generally meet clients in a variety of places, the last of which is a clinical office (Williams, 2006). Most coaching with executives occurs at the workplace and continues by regularly scheduled telephone sessions. Other distinctions include the amount of time the professional and client spend working together, and the view of the relationship between the professional and the one receiving the benefit of the professional’s expertise (Williams, 2006). For example, many clients see the coach as a personal consultant, so coaching services do not carry the stigma that seeing a therapist may. An additional difference can be the lens through which professionals view their clients. Filipczak (1998) observed that psychologists, who often lack business experience, are jumping into executive coaching because of the paucity of job opportunities in mental health. At the same time, Filipczak is concerned that psychologists might be unsuccessful as executive coaches because “they see corporate America as another dysfunctional family that needs to be fixed” (p. 34). Even in life coaching, a paradigm shift might be necessary for the psychologist who comes from more of a clinical view that focuses on psychopathology rather than strengths. In coaching, clients are viewed as the real experts of their own life, and they determine the goals for coaching. The coach focuses less, or possibly not at all, on problems, and instead looks for and builds on the client’s strengths and potential. Another important difference or distinction is in the area of professional regulation. Currently, the coaching profession is not monitored or regulated by state legislation or regulatory boards (Williams, 2006). As a result, the practice of coaching is open to all who have the motivation to market themselves as a coach. Coaching associations see this lack of regulation as problematic; at the same

time, however, the coaching profession desires to remain self-governing. In a similar vein, some authors have discussed the pros and cons of regulation for professions. For example, Handelsman and Uhlemann (1998) proposed that regulation is not necessarily the “unqualified wise choice for professions; instead it should be approached with caution” (p. 315). They proposed that one key issue to address is what is best for the public as well as what is best for the profession. The desire for self-governance has not come without battles. For example, between 2001 and 2004, one state regulatory board (the Colorado Department of Regulatory Agencies) encouraged its state legislature to include the coaching profession under psychotherapy legislation. Several coaching associations (the ICF, the IAC, the Worldwide Association of Business Coaches, and the Association of Coach Training Organizations) joined forces with the Colorado Coalition of Coaches to lobby against the effort. The lobby by the coaching associations was successful. (For a more detailed discussion of this event, see Williams, 2006). According to Williams (2004a), the coaching profession is poised to remain a distinct profession with its own training and competencies, credentialing, professional standards, and a growing body of knowledge. Many coaching associations such as ICF have taken a “policy stand for professionalism and selfgovernance in coaching” (Williams, 2004a, p. 34). At the same time, although there are no regulatory boards that govern the profession of coaching, there is some graying of areas. Psychologists who offer both psychotherapy and coaching psychology might find themselves being governed in both arenas because of broadly written legislation that speaks to the application of psychological knowledge when one is using coaching skills and techniques. Along with this gray area comes the question of coaching across state lines. At this time, there are no ethical restrictions regarding this practice. The question of professional liability in coaching is an evolving one, however. Psychologists who also provide coaching services are seeking professional coverage because they realize that the potential for malpractice charges is on the horizon (Sara Oberg, personal communication, May 24, 2010). 171

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ETHICAL ISSUES IN COACHING In this section, we highlight the following ethical issues: competence or retraining for the coaching practice, boundary issues with coaching clients, informed consent, and confidentiality.

Issues of Competence or Retraining As psychologists consider an extension of their practice into the coaching profession, they need to address the ethical obligation to be fully trained and up to date to practice competently (Swenson, 1997). Kaslow et al. (2007) called competence the “cornerstone” of ethics in psychology. It seems that we could use this same analogy for ethical practice in coaching. Some authors say that training in psychology does not automatically prepare one to deliver an ethical coaching practice (Williams, 2006). Coaches come from different backgrounds, such as sports psychology, industrial psychology, and consulting psychology, and thus they approach client issues from various starting points. However, most coaches would unite around one key issue: “Coaching is not therapy” (Spence et al., 2006, p. 80). With coaching and psychotherapy being two different professions, a psychologist should not consider his or her training as a psychologist necessarily sufficient to competently practice coaching. For example, psychologists may have some of the necessary skill sets for executive coaching, but they may lack knowledge about the business world involving issues of organizational performance and change processes (Harris, 1999; Saporito, 1996). In life coaching, some psychologists may have been well trained to recognize psychopathology, but they need retraining to look for growth and normalcy in clients. In a recent review of clinical, industrial– organizational, and counseling psychology graduate programs, as well as ICF-certified training programs, Bono et al. (2009) found what they called “gaps” in training for coaching. For example, industrial–organizational psychology programs focus on motivation, behaviors, attitudes, and performance in the workplace, but they lack in training when it comes to skills and techniques needed for one-on-one coaching. In addition, counseling and clinical psychology programs address human development, but they do not provide training in 172

business law and legal issues that influence employees or the business or organizational environment. There has been a debate in the literature about who can make the better coach: psychologists or nonpsychologists (Bono et al., 2009). On one side is the argument that coaches need clinical psychological training to recognize or be competent to see when clients need services other than coaching (e.g., psychotherapy for depression or anxiety). In addition, some propose that psychologists have the necessary training in assessment and evaluation and therefore can offer competent advice to organizations and businesses about coaching outcomes (Berglas, 2002) and the criteria for selecting a competent executive coach (Brotman, Liberi, & Wasylyshyn, 1998). On the other side of the argument are those who suggest that psychological training might actually work against competent coaching or be “potentially harmful” to the client. In a review of the literature on executive coaching, Garman, Whiton, and Zlatoper (2000) found that 31% of the articles mentioned psychological training in some fashion. Of these articles, 36% proposed that psychological training for coaches could be positive as well as negative and 18% of the articles suggested that psychological training could be negative and “potentially harmful” (Garman et al., 2000, p. 203). Others are less concerned about the competence of psychologists serving in the role of coach but are more concerned about the practice of coaching as a whole. For example, some have waved a caution sign encouraging psychologists to stop and consider the scientific validity of coaching practices: When, as in the case of coaching, practice is considerably ahead of research, there is the danger of self-assuredness and advocacy for particular methods and techniques and argument and experience being used as a basis for action. I argue that to the extent executive coaching is in the domain of psychology at all, its proponents who are psychologists must proceed with caution and must do the necessary work. (Lowman, 2005, p. 93)

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Possibly Lowman’s concern is slightly overstated. Using scientific methods of psychology, studies examining the outcomes of both life coaching and executive coaching suggest evidence for effectiveness. For example, Peterson and Kraiger (2004) studied more than 350 managers who participated in a coaching process to enhance work performance. Participants were rated at three different time periods by three different individuals (themselves, their boss, and their coaches). The ratings from all three perspectives indicated substantial improvement on specific learning and work objectives. Although outcome-based research has begun to build, some practitioners and researchers in the field of coaching are the first to call for more research (Grant & Stober, 2006). Best current knowledge from related fields, integrated with the expertise of the coach, can inform the practice of life coaches and executive coaches. At the same time, the coaching field needs to continue its pursuit of informed practice via research that “incorporates both rigor and the lived experience of practitioners and clients” (Grant & Stober, 2006, p. 6). The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) expresses the importance of psychologists practicing within the boundaries of their competence and performing roles within the limits of their competence, which is indicated by education, experience that is supervised, training, and other additional professional experience (Kitchener & Anderson, 2011). Some have called on the APA to establish standards for psychologists who want to offer services as executive coaches (Brotman et al., 1998). Lowman (2005) suggested that Standard 2.01, Boundaries of Competence, offers appropriate direction at the present time: Standard 2.01, Boundaries of Competence In those emerging areas in which generally recognized standards for preparatory training do not yet exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect clients/patients, students, supervisees, research participants,

organizational clients, and others from harm. (APA, 2010, p. 5) The burden of responsibility for maintaining competence in areas of existing expertise and for developing competence in new or emerging areas always remains with the psychologist (Canter, Bennett, Jones, & Nagy, 1994). Psychologists, struggling with financial downturns in mental health services and perceiving financial gain in coaching, may be tempted to just jump into the coaching profession (Filipczak, 1998) and without adequate retraining, this could result in ethical missteps. To be effective in the role as coach, retraining is a necessary step to consider, and coaching associations hold to this line. For example, ICF offers membership with voting rights to those who have completed training through an ICF accredited program. (More information on issues of competence in general can be found in Volume 1, Chapter 6, this handbook.)

Multiple Relationships and Other Boundary Issues The coach sometimes holds more than just the coaching role with the client. Multiple relationships can be concurrent or sequential (Kitchener, 2000; Lazarus & Zur, 2002; Pope & Vasquez, 1998). A concurrent multiple relationship occurs when coaches are involved in a business relationship, friendship, or any other type of relationship with their clients at the same time that they are engaged in a coaching relationship. A sequential multiple relationship occurs when a coaching relationship ends and a new relationship begins between the coach and the client. Nonsexual, nonexploitative multiple relationships between a coach and a client in and of themselves are not unethical. Within the coaching literature, little discussion has occurred about multiple relationships and professional boundaries (Zur & Anderson, 2006). The mental health literature is quite expansive about multiple relationships. According to Pope and Keith-Spiegel (2008), professional boundaries have been the main focus of more than 1,500 scholarly works since the early 1980s. In the psychotherapy literature, there is a continuum of perspective on the 173

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ethics of nonsexual and nonromantic boundaries with clients (Kitchener & Anderson, 2011). On one end of the continuum are those who see many multiple relationships with clients as beneficial and serving the public in a positive manner (Cottone, 2005; Ebert, 1997; Lazarus & Zur, 2002; Moleski & Kiselica, 2005). At the other end of the continuum are those who encourage psychologists to view multiple-role relationships with more caution (Anderson & Handelsman, 2010; Borys, 1994; Gabbard, 1994; Kitchener, 2000; Pope & Vasquez, 2007; Sonne, 1994). Across the continuum, there is a concerted effort to understand and make a distinction between boundary crossings or extensions and boundary violations. The ethical obligations of coaches when it comes to appropriate boundaries with clients may very well be different from those of psychotherapists providing mental health or psychotherapy services. The coach–client relationship is seen as a “co-creative, equal relationship” (Zur & Anderson, 2006, p. 131). This cocreative, equal relationship may suggest that the power differential between coaches and clients is less than what exists in the psychotherapy relationship, also suggesting that coaches have less opportunity to exploit clients (Zur & Anderson, 2006). In addition, boundaries between coaching and social interactions may be more fluid and flexible and secondary relationships less problematic. When the coach and client do enter into these secondary relationships or social interactions, it also may be the case that role expectations and role obligations in the coaching role are more congruent with those associated with a role as social friend or golf partner. Because of cultural norms within an organization, coaches may find themselves socializing (e.g., playing golf, going to a sporting event) with clients outside of the coaching sessions. Such interactions often are expected in corporate or executive coaching (Zur & Anderson, 2006). However, research on the coach–client relationship, especially from the client’s perspective, is scant at best. The research that does exist suggests that the connection and interaction between the coach and client is a critical component to successful coaching outcomes (Gyllensten & Palmer, 2007). As O’Broin 174

and Palmer (2006) stated, more formal research into the coach–client relationship is absolutely necessary. We would encourage exploration into issues of boundaries and multiple relationships especially from the clients’ perspective. Although the term multiple relationships is not mentioned in the IAC (2003) and the ICF (2008) codes of ethics, both associations address the importance of respect for clients’ dignity, autonomy, and privacy through such terms as conflict of interest, unfair discrimination, exploitation, and misuse of power and influence. Therefore, coaches always should steer clear of secondary relationships with clients that potentiality could undo or negate the gains clients have made and paid for in the coaching relationship (Anderson & Kitchener, 1998; Kitchener, 1992). Conflict of interest. The IAC’s (2003) ethics code includes a conflicts-of-interest section, which states, (a) Whenever feasible, a coach refrains from taking on professional obligations when preexisting relationships would create a risk of conflict of interest. (b) If a coach finds that, due to unforeseen factors, a potentially conflict of interest relationship has arisen, the coach attempts to resolve it with due regard for the best interests of the affected person and compliance with the Ethics Code. (p. 3) The ICF’s (2008) ethics code includes a similar conflicts-of-interest section and discusses three major points. First, coaches should avoid conflicts or potential conflicts of interest; if one should arise, coaches are encouraged to remove themselves from the conflict. Second, coaches are to declare to the client any compensation received or to be received from third parties. Third, coaches are not to take any “personal, professional, or monetary advantage or benefit of the coach-client relationship,” with the exception being the compensation agreed upon in the contract (ICF, 2008, p. 3). Bartering. Ethics codes consider bartering as a form of payment to be potentially problematic; the codes encourage professionals to consider whether services

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could be compromised if a bartering agreement is not reached or if bartering for services could give rise to conflicts of interest. The ICF (2008) code states, “I will only barter for services, goods or other nonmonetary remuneration when it will not impair the coaching relationship” (p. 2). Several psychologists have written about reasons to support the act of bartering. For example, Welfel (2010) has suggested that bartering provides a means for making professional services within the mental health field available to those who do not have financial resources. In addition, some communities and cultural groups see bartering as a social norm. To resist this type of financial arrangement would run counter to the norms of the community (Helbok, 2003). It is likely that these same arguments also apply to the field of coaching. There will be times when coaching is needed and the client is able to compensate the coach only via some type of bartering arrangement. Termination of services and appropriate referral. Coaches are ethically obligated to make arrangements for the end of the services they provide. Toward this end, they respect the client’s right to terminate services, and they even initiate termination of services for their clients when they recognize the clients are no longer benefiting. The ICF code (2008) states that coaches will encourage the client or sponsor to make a change if . . . the client or sponsor would be better served by another coach or by another resource [and] will suggest [the] client seek the services of other professionals when deemed necessary or appropriate. (p. 3) The IAC code (2003) has more to say about appropriate boundaries of competence and referrals when it comes to client mental health issues. Under Standard 3.02, the coach is encouraged to make appropriate mental health referrals when the client is at risk of harm to self or others. For psychologists also trained as coaches, there may be the temptation to provide coaching services as well as therapy to the same client. However,

coaches are ethically obligated to avoid performing overlapping services. According to Jenkins (2008), It would be ethically inappropriate [for coaches] to act as both psychologist and coach with a client, whether concurrently or sequentially. Positive change is difficult enough without having to worry about role confusion. This approach means that if either [coach or client] recognizes a need for therapeutic treatment, [the coach] can assist in referring the client to appropriate resources. (p. 4) The coaching associations offer psychologists little ethical guidance about appropriate referrals or the process to consider. Spence et al. (2006) noted that the ICF code of ethics (2008) provides only vague references to when mental health services might be necessary, or to processes for referrals. Of course, for the clinical or counseling psychologists who have been trained to recognize psychopathology, this lack of direction is probably of little consequence. But for other coaches, such as executive coaches who have training as industrial psychologists and have not been trained to recognize depression, anxiety, or other mental health issues, this lack of direction is possibly a doorway to harm for the client. As psychologists work to understand what services clients need, they need to stay true to the original role established when they initially contracted with clients or completed the informed consent process. As mentioned, there is no research to support the notion that coaching clients experience the coaching relationship as equals to the coach. Therefore, from our lens, we would encourage coaches not to enter multiple relationships with coaching clients casually or carelessly. To do so would ignore the ethical principles of beneficence, nonmaleficence, and fidelity. When entering the professional relationship, coaches are promising to offer a service and expertise (in exchange for money) that will benefit the clients.

Informed Consent Issues Coaching clients purchase professional services, either directly or indirectly. Like consumers of other products, coaching clients have ethical and legal 175

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rights to information about services, and professionals have an obligation to provide that information before they accept clients. This process is known as informed consent. Informed consent has two central aspects: (a) disclosure of relevant information the client needs to make a decision about whether to engage in services and (b) free consent, which means that the client’s decision to engage in services is made without coercion (Welfel, 2010). Ideally, informed consent constitutes a process of shared decision making between mental health professionals and their clients about care (Knapp & VandeCreek, 2008), a partnership in which professionals use their expertise to help clients achieve their own goals. Informed consent contracts should reflect this understanding on the part of both the professionals and the clients they serve. Ethical principles, such as respect for autonomy, provide a foundation for the informed consent process. Having a valid contract for services between professionals and clients actualizes the principle of autonomy because “the contract itself recognizes the autonomy of people to choose what they value, with whom to work, and the manner in which to be ‘in exchange’ with one another by making their agreement” (Garlo, 2006, p. 97). Other ethical principles are attached to informed consent and valid contracts. Fidelity supports enforceable adherence to promises made between the parties. The ethical principles of beneficence and nonmaleficence are interwoven through the real meaning of consent, and they demonstrate that coaches and clients jointly understand the contract or the context of their coaching relationship and that the “agreement is not the result of fraud, deception, duress, undue influence, or coercion” (Garlo, 2006, p. 97). Informed consent and codes of ethics. The ICF code of ethics (2008) requires that a clear contract or business agreement should exist between coaches and clients that define the responsibilities of each party. Section 3, entitled Professional Conduct With Clients, requires that coaches honor all agreements or contracts made in the context of professional coaching 176

relationships . . . carefully explain and strive to ensure that, prior to or at the initial meeting, coaching client and sponsor(s) understand the nature of coaching, the nature and limits of confidentiality, financial arrangements, and any other terms of the coaching agreement or contract . . . respect the client’s right to terminate the coaching relationship at any point during the process, subject to the provisions of the agreement or contract . . . and be alert to indications that the client is no longer benefiting from [the] coaching relationship. (p. 3) The nature of coaching is critical to discuss with each client. For clients to truly understand the parameters of coaching and give “informed consent,” they need to know that the service they will receive is one suited for assisting “healthy people” tap into their potential and obtain specific goals for an effective more productive life (Cavanagh & Grant, 2004; Peltier, 2001; Williams, 2004b) and the limits to confidentiality. Similar to psychotherapy, coaches maintain confidentiality except when they become aware of the client’s harm to self or others (IAC, 2003). As part of the informed consent process, coaches are encouraged to include price structures and payment fees and schedules as part of disclosure of information (Garlo, 2006). Coaches could provide pro bono services to clients who demonstrate financial need. In these cases, an informed consent contract that delineates the pro bono nature of the relationship is an ethical requirement because there is much more to informed consent contracts than fee structures. Third-party payers. In life coaching, coaches typically enter into a contract for services with a single client; however, with executive coaching, third-party payment for services is common. The ICF code (2008) directly addresses this issue: In order to clarify roles in the coaching relationship, it is often necessary to distinguish between the client and the sponsor. In most cases, the client and sponsor

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are the same person and therefore jointly referred to as the client. For purposes of identification, however, the International Coach Federation defines these roles as follows: ■ Client: The “client” is the person(s) being coached. ■ Sponsor: The “sponsor” is the entity (including its representatives) paying for and/or arranging for coaching services to be provided. In all cases, coaching engagement contracts or agreements should clearly establish the rights, roles, and responsibilities for both the client and sponsor if they are not the same persons. (Section 1, p. 1) Similar to psychotherapy, coaches do not disclose information to third-party payers unless the client legally allows this disclosure through a signed contract such as a release-of-information form. Accurate representation of professional qualifications and appropriate services. Therapists and coaches are ethically required to represent their professional qualifications as part of the informed consent contract. Section 1 of the ICF code (2008) requires that coaches “accurately identify coaching qualifications, expertise, experience, certifications and ICF credentials” (p. 1). Sometimes coaches also may possess credentials related to psychotherapy, such as related educational degrees and licenses to practice. When such overlap occurs, it may be beneficial for coaches to explain in the informed consent contract the differences between coaching and psychotherapy services. This explanation is a critical point for the relationship. Clients have the ethical right to understand the difference between the two and need to be clear about which service they are agreeing to. Jenkins (2008) has recommended verbiage similar to the following: Coaching techniques, unlike therapy, move away from diagnosis and instead address a variety of circumstances—e.g., assessing and compassionately handling grief issues, communication and/or conflict; finding ways to overcome certain

stressors; attending to specific personal projects; tackling working toward more balance (as between family and work); finding creative ways to manage life’s struggles; increasing options in managing job-related difficulties and/or general conditions in a client’s life, business or personal. Coaching is about the business of working with a client right where s/he is rather than what diagnosis is required to get the client well. As such, coaching is not a substitute for counseling. (para. 4) Informed consent involves ensuring that all parties, particularly the person who will pay for and receive a service or product, clearly understand what they have agreed to. Good business practice entails detailing, in writing, the terms of the agreement between the parties (essentially a form of consent between them) to be sure it is clearly understood. Coaches agree to provide the client feedback, structure, process, alternative viewpoints, and sometimes suggestions, education, or advice. Coaching clients are expected to share, clarify, and revise their goals; choose a course of action; and then implement their plan to bring those goals to fruition.

Confidentiality Issues In some ways, there appears to be a comfortable overlap between the worlds of coaching and psychotherapy when it comes to confidentiality. In both arenas, confidentiality is critical to the professional relationship. For the psychotherapist, confidentiality is one of the professional issues that is stipulated and watched over by professional organizations (e.g., the APA) and government regulatory agencies (Greenfield & Hengen, 2004). Confidentiality is described as “the cornerstone of therapeutic trust” (Corcoran & Winslade, 1994, p. 354). Confidentiality also might be considered the “cornerstone” in the coaching relationship. Confidentiality, promised by the coach, builds trust and confidence in the relationship and provides a place for the client to “learn, grow, make decisions, and take actions to develop change or create new experiences” (Garlo, 2006, p. 89). For the client and coach to build a solid, close, and understanding working 177

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relationship, trust is the critical foundation (Garlo, 2006). The coaching world or profession recognizes the importance of confidentiality in its different ethics codes. The ICF code (2008) in Section 4 states that the coach will maintain the strictest levels of confidentiality with all client and sponsor information . . . will have a clear agreement or contract before releasing information to another person, unless required by law . . . will have a clear agreement upon how coaching information will be exchanged among coach, client, and sponsor. (p. 3) The IAC ethics code (2003) also addresses confidentiality. The code encourages the coach to consider many issues, such as discussing the meaning of and parameters around confidentiality at the beginning of the relationship. In addition, the IAC code (2003) highlights the issue of limitations to confidentiality, as well as times when confidentiality may be breached to “prevent foreseeable imminent harm” for the client or someone. This provision for coaches to breach confidentiality is similar to ethical obligation for psychologists, which came about from the Tarasoff v. Regents of the University of California (1976) case. For psychologists, the Tarasoff case requires the therapist to break confidentiality to honor the “duty to protect” a third party from a client’s threat of harm. The IAC code (2003) reads as follows: Coaches must notify the appropriate authorities when a client discloses that they are harming or endangering another individual or group. The coach must also attempt to notify the person or group who is being harmed or endangered. The coach does not need to discern if a mental health problem is present or in fact if the current or imminent harm is in fact illegal. (Standard 3.02[c]) One of the unique issues of coaching and confidentiality, and specifically of executive coaching, can be the triad relationship that includes the client, the sponsor, and the coach. In this case, all three parties have a vested interest in how information is gained 178

and used in the coaching relationship. Typically, in life coaching, there is a confidential one-on-one relationship; but with coaching in the organization or business world, this triad or three-way contract between the coach, client, and sponsor (i.e., the client’s organization or business) can prompt blurring lines of confidentiality (e.g., Zeus & Skiffington, 2000). Employers may wish to have information about employees, or chief executive officers may push for information about midlevel managers that coaches have obtained from the coaching relationship. As addressed in the section on informed consent, the coach needs to address the limits of confidentiality for all those involved with as much clarity from the start of the relationship. The IAC code (2003) provides some helpful guidance around confidentiality and the triad relationship in the following two standards: Standard 4.02(a) states, “Coaches are fundamentally prudent in the protection of the confidentiality rights of those with whom they work or consult. Coaches acknowledge that professional relationships, institutional regulations, and/or the law may establish confidentiality.” Standard 4.02(e) continues: In a consultative capacity, coaches do not share confidential information that could lead to the identification of a client with whom they have a confidential relationship. Coaches may only share this information if they have obtained the prior consent of the client, or if the disclosure cannot be avoided. Furthermore, coaches share information only to the extent necessary to achieve the purposes of the consultation. The concept of promising and maintaining confidentiality is built on the ethical principles of autonomy, fidelity, beneficence, and nonmaleficence. Clients promised confidentiality in the coaching relationship decide who will have what information about them when, which addresses the principle of autonomy. Of course, as we already have addressed with the limits of confidentiality, autonomy is not absolute. Should a coaching client indicate harm to self or others, or a plan to commit some type of act against the sponsor (the third party paying for the

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coaching services), the coach would have grounds to breach confidentiality, or at the least, to seek consultation about whether to maintain or break confidentiality. The commitment of confidentiality also is grounded in the ethical principle of fidelity. The promise to keep the client’s information private is at the core of a trusting relationship and even speaks to a type of fiduciary contract. The coach and client enter the relationship with the clear mission of the client reaping benefits from the interaction with the coach. CONCLUSION Parallels as well as distinctions between the professions of coaching and psychology encourage psychologists to consider ethical issues in coaching from a different vantage point. As psychologists move into the coaching profession, we encourage them to recognize that every profession has its own culture (Anderson, Wagoner, & Moore, 2006), and life and executive coaching is no different. This means, as well, that psychologists need to attend to their ethical acculturation journey (Handelsman, Gottlieb, & Knapp, 2005) as they move into the coaching profession. Being aware of and working through the ethical acculturation process will help psychologists recognize their match or mismatch with the profession (Anderson & Handelsman, 2010).

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CHAPTER 10

THE MORE THINGS CHANGE, THE MORE THEY STAY THE SAME: ETHICAL ISSUES IN THE PROVISION OF TELEHEALTH Anthony S. Ragusea

The Internet is changing the world in which we live. The discussion has focused more recently on how the world is changing and whether that change is for the better. As Fisher and Fried (2003) noted, “The use of Internet technology is an exciting opportunity to extend the range of professional services that can be offered to consumers” (p. 110). In contrast, Nie and Erbring (2002) wrote, “The more hours people use the Internet the less time they spend with real human beings” (p. 280). A more recent study by the Pew Internet and American Life Project (2009) concluded that “Americans [who use the Internet] are not as isolated as has been previously reported” (p. 3). With these varied viewpoints, it is understandable that some psychologists might feel confused about whether telecommunications technologies are appropriate media for the application of psychology. This chapter will clarify how the practice of professional psychology changes when the psychologist and the patient are not in the same room together and how psychologists can deliver telehealth services in a manner consistent with the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) and foundational ethical principles. The term telehealth does not necessarily refer to use of the Internet; it actually refers to any delivery of health care services via telecommunications technology. Telehealth could, for example, describe services provided by a psychologist to a client over the telephone. However, the ease with which the Internet permits communication in multiple forms has closely associated the Internet with telehealth.

Examples of telehealth include services delivered by telephone, e-mail, chat room, or video. Applications of telehealth are wide ranging and can include everything from psychotherapy to research to education. Telehealth does not require the presence of a health professional; websites can provide health information and can offer prevention, assessment, and treatment programs in the form of software applications. Popular examples of are found in the proliferation of smoking cessation sites like http:// www.becomeanex.org, http://www.smokefree.gov, or http://www.whyquit.com. Smoking cessation websites usually provide information, links to resources, group support, and self-help programs, all without the live participation of health professionals. As these examples demonstrate, telehealth is diverse and can be categorized in a variety of ways. Synchronous telehealth, for example, occurs when there is little or no gap in time between interactions, such as with video conferencing or the telephone. Asynchronous telehealth occurs when there are significant delays in communications, such as with e-mail. Telehealth can be provided as exclusively audio, exclusively video, exclusively text, or some combination of all three. Another term that is heard more frequently is telemedicine, a more specific term that describes the practice of medicine to treat illnesses using telecommunications technologies. The term is more appropriate to the field of medicine than psychology. Other terms like e-health, online therapy, and e-therapy also are heard from time to time and are

DOI: 10.1037/13272-010 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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synonyms for telehealth, but telehealth will be used throughout this chapter. A BRIEF HISTORY OF TELEHEALTH Serious discussions about the use of technology in the provision of health services began as early as the 1980s, and the 1990s saw the beginning of a trend in various organizations to set standards, offer guidelines, or express opinions about the use of technology. To some degree, it could be argued, the almost frantic pace of rule setting in the 1990s created the impression that services provided via the Internet somehow differed substantially from a similar practice psychologists have engaged in for half a century: the use of the telephone. The telephone has been used routinely by psychologists to do everything from scheduling appointments to providing quick consultations and even conducting full psychotherapy sessions for a patient who typically is seen in face to face treatment. This has been done without much in the way of controversy or concern for possible ethical problems, and certainly without the perceived need to create special guidelines for the professional and ethical use of the telephone in practice. To be fair, the use of the telephone to provide clinical services usually was predicated on the assumption of existing face-to-face (F2F) relationships between psychologists and their clients. A F2F therapist–client relationship was no longer required, however, in the age of the Internet. The Internet enabled long-distance relationships between people that before had not been possible, or at least convenient, because of the time lag in communication. Instant communication through e-mail and instant messaging (IM) encouraged people to not just keep up with old friends and family, but also to start new friendships and even romances with people in different states or even different continents. Deep and complex relationships became possible quite easily without any in-person contact. Another innovation of the Internet was the possibility of relationships formed on the basis of anonymity. In the era of traditional “snail mail,” anonymity was somewhat more difficult and discouraged. At a minimum, the mailing envelope required an address and a return address, requiring 184

the identity of the sender and the recipient to be known. The Internet was fundamentally designed so that the only form of identification required for one person to talk to another was the identity of the computer being used, or its Internet Protocol address. Anonymity encouraged a new kind of relationship experimentation, one in which people could be less inhibited and even explore fantasy identities without fear of their true identity becoming known. Teenagers could pretend to be adults, men could pretend to be women (or vice versa), people who are introverted could pretend to be extroverted. People could initiate conversations and relationships with people with whom they normally would be reluctant to communicate. People also could quietly observe other people’s conversations without their presence ever being known (in listservs and chat rooms this practice is sometimes called lurking). All of this came, of course, with positive and negative consequences. One positive result was that people felt free to explore relationships and express themselves in ways they could not in real life. A negative result was that people could be much less careful and considerate in their self-expression and self-disclosure than they perhaps should have been. Nevertheless, mental health professionals began to see anonymity and the Internet’s culture of open expression as potential tools that could facilitate therapeutic relationships and further increase the level of confidentiality. Practitioners of telehealth argue that technology enables them to meet the needs of clients in ways not possible with traditional care. Clients who live in rural areas, for example, may receive services without having to make long journeys to the nearest specialist. Clients who are agoraphobic, shy, or feel ashamed or embarrassed about their problems potentially can find help from professionals that they otherwise would not seek if it meant having to go to an office and interact with a live person or expose their identity. Professionals potentially can broaden their customer base by treating people who may be hundreds of miles away. Consultation between distant professionals can happen more easily and even more comprehensively because of the ease with which video, pictures, and documents can be transmitted

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using the Internet. Even clients being treated F2F by a professional can continue to receive treatment from the same professional with telehealth technologies if they move out of town or travel. Group treatment potentially can be more successful than traditional groups in the sense that more online groups can pull from a larger population of people, increasing the likelihood of finding enough participants. In addition, because participants do not have to travel to an office or meeting room, scheduling conflicts have the potential to be less problematic. Much recent research has focused on how health-related software can treat or prevent problems without the need for live professionals (e.g., Bewick, Trusler, Barkham, Hill, & Cahill, 2008; Reger & Gahm, 2009). These advantages are only a partial list of the known uses for telehealth. Other advantages perhaps have not yet been discovered. Different fields are using telehealth for different purposes. Psychology has tended to focus on using telehealth to provide treatment, prevention, or education. By contrast, medicine primarily has used telehealth for education and consultation. Psychologists have been able to focus more on treatment in large part because the practice of psychology so often relies on verbal and written communication, as opposed to medicine, which often requires in-person physical examination. Prescribing medication over the Internet has been a particularly controversial practice with serious legal and ethical risks (Jones, 2004), and the American Medical Association currently prohibits it unless the physician already has completed a physical examination. In fact, a physician recently was sentenced to 9 months in prison for prescribing over the Internet an antidepressant to a teenager who lived in a different state and later committed suicide (Sorrel, 2009). Nonetheless, medicine is at the cutting edge of using telehealth for treatment as well. For example, surgeons can consult and even control robotic arms during a surgery live via video, even if the surgeon is hundreds of miles away. The mental health field also has struggled with concerns about the legal and ethical implications of providing services via telehealth technology. Indeed, the late 1990s and early 2000s witnessed a flurry of activity from a variety of authors and organizations

calling for specialized ethical guidelines for Internetbased therapy (e.g., Humphreys, Winzelberg, & Klaw, 2000) and publishing various guidelines and position papers. Such active discussion seemed to reflect a growing anxiety about the risks of telehealth or perhaps just a cultural pendulum swing from open experimentation to an emphasis on responsible practice. Professionals debated more frequently about whether the Internet represented a distinct form of mental health treatment that required its own unique set of rules and standards, or if it was really no different than any other modality. In addition, questions were asked about the effectiveness of telehealth: Was providing Internet services somehow better or worse than traditional F2F services? Were some people more appropriate candidates than others for telehealth? The past 5 to 10 years have witnessed an incredibly rapid evolution of the Internet, both in terms of technical accomplishments as well as cultural sophistication. The early debates about whether telehealth is fundamentally ethical have quieted down in recent years, perhaps reflecting a growing comfort the profession of psychology has with the Internet in general. Technical developments have made the use of video conferencing as easy, cheap, and reliable as e-mailing, partly because of the rapid dissemination of broadband access and the development of more sophisticated video compression methods. Now, anyone can download Skype or Apple’s iChat software free of charge, and with broadband access, can communicate via video with another human being around the globe with fairly high-quality video at reasonably good frame rates. This was not possible 10 years ago, when the most realistic and costeffective way of providing telehealth was using the telephone or using text-based technologies. The nature of telehealth is changing as the technology changes, and the sophistication of users’ understanding about technology is increasing. This, in turn, changes the nature of the discussions about telehealth. The public is becoming increasingly aware of issues like computer viruses, phishing, identity theft, and the difficulty of maintaining privacy on the Internet, which makes obtaining informed consent potentially easier. Larger and larger proportions of the public are also becoming skilled in the use of 185

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e-mail, IM, and video conferencing, which may translate into larger numbers of people who can make greater use of telehealth. The question seems to no longer be, “Should psychologists be doing telehealth?” The question has become, “How can psychologists do telehealth well?” DOING TELEHEALTH WELL In 1997, the APA published a statement on providing services by telephone, teleconferencing, and the Internet (APA, 1997). The statement was a response by the Ethics Committee to the rapid growth of telehealth and confusion about the ethical responsibilities of psychologists, and it attempted to fill a gap between the 1992 Ethics Code, which did not address telehealth at all, and the revised Ethics Code. The statement merely confirmed that no rules explicitly prohibited psychologists from engaging in telehealth services and reminded psychologists to use the existing standards of practice when making decisions. This introduced the position, later affirmed by the 2002 Ethics Code, that the ethical responsibilities when practicing telehealth are not fundamentally different from traditional services, and they are not so difficult to meet to warrant special guidelines for practice. The APA’s decision not to draw major distinctions between telehealth services and F2F services is reflected in how telehealth language was integrated into the 2002 Ethics Code (APA, 2002). The Introduction contains a statement explaining the activities over which the ethics code has authority, including activities “such as in person, postal, telephone, Internet, and other electronic transmissions,” thus establishing an acceptance of telehealth as an appropriate part of a psychologist’s practice. This decision was correct and in keeping with psychology’s foundations. Psychology always has embraced innovation as long as it adheres to the general principles that guide our ethical standards: beneficence and nonmaleficence, fidelity and responsibility, integrity, justice, and respect for people’s rights and dignity. Telehealth can be practiced and meet all of these principles. Telehealth language occurs elsewhere in the Ethics Code. Standard 2.01(c), Boundaries of Competence, 186

states that “psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake relevant education, training, supervised experience, consultation, or study.” This standard regarding boundaries of competence simply folds the responsibilities for practicing telehealth into the same general expectations for any other area of practice. Standard 4.02(c), Disclosing the Limits of Confidentiality, states “psychologists who offer services, products, or information via electronic transmission inform clients/patients of the risks to privacy and limits of confidentiality.” This standard does not explicitly accuse telehealth of being less private or confidential than traditional services, but it does appear to reflect a deliberate decision to acknowledge one of the major concerns routinely expressed by professionals about telehealth, that is, that confidentiality is threatened by it. Many organizations have published guidelines and suggestions for the practice of online therapy and use of health information on the Internet in the last 10 years, including the American Accreditation HealthCare Commission (2001), the American Counseling Association (1999), the American Medical Association (2000), the American Mental Health Counselors Association (2000), the American Medical Informatics Association (Kane & Sands, 1998), the American Psychiatric Association (1998), the American Telemedicine Association (2009), the eHealth Ethics Initiative (Internet Healthcare Coalition, 2000), Health Internet Ethics (2000), the Health On the Net Foundation (1997), the International Society for Mental Health Online (2000), and the National Board for Certified Counselors (2001). Although APA clearly has recognized telehealth to be an acceptable practice for psychologists, there are still many unique challenges and skills for psychologists to understand before they can meet the standards set forth by the Ethics Code. Case examples will illustrate some of these challenges, and when appropriate a risk management (RM) formula will be applied. The formula applied was described by Bennett et al. (2006) as Clinical Risk ⫽

P⫻C⫻D TF

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Risk refers to “the calculation that a particular treatment, intervention, or service will lead to a good or bad outcome and that the outcome will have positive or negative consequences” (Bennett et al., 2006, p. 11). In the RM formula, P = patient risk characteristics; C = context; D = disciplinary consequences; and TF = therapist factors. In other words, the risks generated by the patient, the situational context, and the potential disciplinary consequences can be mitigated by the skills and decisions of the psychologist. The variables are not quantitative but qualitative, and thus do not provide cutoff points for acceptable risk, but rather they are intended to stimulate thoughtful consideration of relevant issues when making clinical decisions.

Confidentiality The first issue to be discussed, and perhaps the most important and uniquely challenging within telehealth, is maintaining a high degree of confidentiality. Case Example 1 A psychologist was contacted by a potential client using e-mail, after viewing the psychologist’s website. The client identified herself as a woman who was seeking marital advice, but she expressed discomfort with meeting the psychologist in person and asked to communicate with the psychologist only by e-mail. The psychologist was an experienced therapist and felt comfortable using e-mail but had no particular knowledge about or experience in telehealth. He agreed to work with the client using e-mail after sending her his intake form, which included his standard explanation about the nature and limits of confidentiality. Quickly it became clear that the woman was in a marriage with significant domestic violence, and she was trying to decide whether to leave her husband. Through their communications, the psychologist worked with the client to develop a safety plan and encouraged her to go to a domestic violence shelter if she felt in danger. After a

few weeks, the client suddenly stopped communicating with the psychologist. Later, he received a release of information from another therapist who was now working with the woman. The psychologist learned through this colleague that the woman had been severely beaten after her husband discovered her e-mail communications with the psychologist, which the client thought she had deleted. The client was hospitalized, the husband was arrested, and the hospital referred the woman to her new therapist. Clearly, the outcome of this case was far from ideal. Although the psychologist did not violate standards of confidentiality by sharing information without authorization, he did arguably violate Standard 4.02(c), which requires the psychologist to inform clients of the risks to privacy and limits of confidentiality when offering services via electronic transmission (e-mail, in this case). He also may have violated Standard 2.01(c), which emphasizes the need to receive education or training when using unfamiliar services. Although he thought he had done his professional duty by explaining confidentiality in his intake paperwork, he did not sufficiently understand the unique risks to privacy inherent in e-mail and consequently did not explain them to the client. Consider the factors of the case following the RM model. 1. Patient Risk Characteristics: The patient, or client, may have been inexperienced in the more technical aspects of e-mail, which could explain why her husband was able to find her communications despite her attempts to hide them. 2. Context: The psychologist did not immediately understand the risks of the situation because the client was guarded about her reasons for seeking treatment. However, his understanding of situational risk changed once he understood that domestic violence was an issue. 3. Therapist Factors: The psychologist in this case may have had sufficient training and experience to competently handle cases involving domestic violence, but the boundaries of his competence did not encompass the practice of telehealth. 187

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Thus, his ignorance about how to maintain privacy with e-mail and his ignorance of the client’s technical sophistication created an opportunity for a very negative outcome. 4. Disciplinary consequences: Once the situation was fully understood, the psychologist would have been able to anticipate the importance of maintaining confidentiality, and he would have understood that violating that standard could result in a negative outcome for the client, as well as potential disciplinary action by the licensing board. It is difficult to predict what the outcome would be in this case were the client to file a complaint against the psychologist, but it is certainly possible that a licensing board could find the psychologist at fault. What could the psychologist have done that may have protected his client better had he been more knowledgeable about telehealth? For example, the client may not have been technologically sophisticated. It is possible that her e-mail account was set up so that a copy of every message was left on the mail server, which easily could have been checked if her husband knew her password. Even though she deleted every message from her e-mail client on her computer, she might not have been deleting every copy that existed. It is also possible that she printed out her e-mails and kept them somewhere she thought was secure but that turned out not to be. The psychologist did not know how the client was protecting the communications, but only because he did not know enough to know that he should have inquired about the client’s level of technical sophistication. Once he understood the potential danger if her husband discovered their communications, he should have discussed with her what additional steps could or should have been taken to protect her privacy. Unfortunately, the psychologist was probably more concerned about how he was protecting the privacy of their communications because that is the most important obligation a therapist has when doing F2F therapy. The psychologist could have taken many steps to better ensure the client’s privacy. The psychologist could have inquired as to how the client was storing or deleting her messages and advised her about the level of security associated with her methods. 188

The psychologist could have created a plan with the client to disguise the subject line of their e-mails with an ambiguous word or phrase, or even modified his e-mail settings so that his real name did not appear on the “From” line. The client could have changed her password to ensure her husband could not check the account. The psychologist even could have insisted that they communicate in a different, more private way, perhaps on the phone or in person. But what were the psychologist’s responsibilities to maintain the confidentiality of records for this, or any, client? What can psychologists do to prevent their computers from being compromised? Again, there are many ways to help ensure privacy of e-mail communications, and the APA dictates no specific practices that a psychologist must follow. The Security Rule of the Health Insurance Portability and Accountability Act (HIPAA; 1996) does offer some requirements and suggestions. It requires a HIPAAcovered provider to analyze the risks of unintentional disclosure of electronic personal health information and then to take appropriate steps to address them. What steps a psychologist takes depends on such factors as the size of the practice, and a great deal of latitude is given in how the psychologist meets certain security standards while other standards require the implementation of certain procedures. For example, each person with access to a computer that holds personal health information must have a unique login name or password that can be used to track activity on the computer, but the precise attributes of the login or password (e.g., length, use of numbers or special characters) may be determined by the psychologist. One source of information about how to implement the Security Rule is Security Standards: Technical Safeguards (Centers for Medicare & Medicaid Services, 2007). In general, though, a psychologist should strive to make electronic communications at least as secure as communications and records in a traditional office environment by applying several strategies to secure data on a computer, as well as data going to and from another computer: 1. Psychologists who own a computer running Windows need to use antivirus software. Viruses, Trojan horses, and worms can damage data or

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even permit another person to steal files. If psychologists own a Macintosh, antivirus software will not hurt, but at present probably is not likely to be necessary because of the fact that the vast majority of viruses target PCs. It is actually highly unlikely that client records will be compromised by a random criminal; it is more likely that a computer will be targeted by someone who has a vested interest in stealing information. Nevertheless, antivirus software is a cheap and easy way to prevent a major problem. Psychologists need to update virus definitions frequently because viruses are usually most dangerous right after they are released onto the Internet. If they receive junk mail on the computer, they should be sure not to open attachments or files from people they do not know. This is the easiest and most common way viruses can be introduced to a computer. 2. Psychologists should consider installing intrusiondetection software. Virus-detection software looks for malicious codes on their computers, but it does not look for more subtle processes that suggest information is going to places it should not be going, which can be an indication that a computer has been compromised by an intruder. IDS software can identify and stop such intrusions. 3. Psychologists should use a firewall. Firewalls can be software or hardware based and are intended to block unauthorized data from entering or leaving their computers. 4. If possible, psychologists should adjust their e-mail account settings to enable Secure Socket Layer so that messages sent and received are encrypted as they travel from their computers to a mail server. Once data reaches a server (and it may pass through several on its journey), the sender no longer has control over the security of the data. This is a major hole in the security plan that psychologists either must live with or use software that can encrypt data along its journey to its destination. Unfortunately, encryption software usually is not user friendly, can be expensive, and also must be run on the computer of the person receiving the data for complete security. The least complicated and expensive

option probably is Hushmail, but even this service requires the recipient to have a Hushmail account if the e-mail is to be completely secure from the point of origin to the point of destination. Regardless, it is unlikely that private communications will be hijacked and misused en route. Mail servers often have their own security features, and given the massive amounts of information that pass through them, it is unlikely that a criminal would have the time or inclination to sift through it all for confidential communications. After all, tapping into a mail server is like drinking water from a fire hydrant. Criminals are more likely to look for specific information, like social security numbers, credit card numbers, and passwords. The most likely time that confidential e-mail will be compromised will be while it sits on the computer of the therapist or the client, when other people either deliberately or by accident see information they should not. 5. Psychologists should ensure that any passwords they use are known only to them and are not easy to guess. Professionals recommend using passwords that have no recognizable words; include a combination of letters, numbers, and special characters; and are not variations of personal information like birthdates and social security numbers. Psychologists should change their passwords from time to time. 6. Psychologists should use software to encrypt files on their computers that have client-identifying information in them. For example, Apple users easily can create an encrypted “disk image” using the Disk Utility software that comes with Operating System X. Files can be placed in the disk image like putting money in a vault, secured by a password. Even if someone steals an encrypted file or folder, unless the person can guess the password, it is unlikely he or she will be able to break the encryption. In a sense, this is a more secure way of storing information than keeping papers in a locked file cabinet, which easily can be pried open with a crowbar. All methods for blocking intrusions through an Internet connection will do no good if someone steals the computer and confidential information is open for anyone to read. This is particularly 189

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important for laptop users to understand because laptops are frequently and easily stolen. 7. Psychologists should be careful with data backups. Backing up confidential data is a good idea in case of theft, fire, or data corruption, but of course, copies mean more opportunities for privacy violations. They should try to keep backups as safe as possible and store computer discs or external hard drives in a bank security box or find a way to keep sensitive data encrypted wherever it is kept. An online service like Mozy will encrypt data and keep it on its servers so it will be there even if an office or home burns down. 8. When disposing of computer files with confidential information or when disposing of hard drives, psychologists should be aware that simply emptying the “Trash can” or “Recycling bin” on their computer does not permanently destroy the data. Typically, doing so means only that the data are marked to be overwritten later. Software is available that can easily and cheaply truly destroy confidential data. For Mac users, simply select “Secure Empty Trash” from the Finder. For Windows users, there are many examples of software that can be used, such as MediaWIPE or Eraser. There are many ways to secure data on a computer and between computers, but a balance must be struck between security, cost, and convenience. For example, firewall software is cheap, but a hardwarebased firewall offers increased protection and security albeit at a greatly increased price. Should a psychologist be expected to use the best security technology available? APA offers no guidelines on what specific technological criteria must be met for telehealth to be considered secure. The Ethics Code merely speaks to the requirement that psychologists take “reasonable precautions” to maintain confidentiality (Standard 4.01, Maintaining Confidentiality). Technology changes too rapidly, as do the threats to security, for any set of guidelines to remain relevant for long. Therefore, the psychologist may decide what security practices should be put into place, and the only practice the psychologist must absolutely avoid is having no security. A heuristic that may be used to help decide what security practices are appropriate is that the security 190

of one’s telehealth communications and electronic records should be at least roughly equivalent to the security of one’s F2F communications and paper records. Office walls often are not completely soundproof, telephones can be tapped, and file cabinets can be broken into. Nevertheless, the public and the profession of psychology, rightly or wrongly, accept these risks and limitations to privacy. Telehealth never can be completely secure even when taking the most extreme measures, but if the public is informed of the risks and accepts them, then telehealth may not have to be. This discussion presumes that all parties involved wish to keep personal health information private. But what if the client does not? Telehealth creates the opportunity for sessions, test data, or other information to be wholly and completely copied, stored, and even publicized by the client. A client can store a video session on a hard drive as a helpful reference to be used when the client needs reassurance or forgets an assignment the therapist gave, or an angry client can post the same video to the Internet with the intent of publicly mocking the therapist or using it as part of an allegation of misconduct against the therapist. This loss of control makes many psychologists understandably uncomfortable, and this is a risk that must be considered and accepted when conducting telehealth. A psychologist cannot control what a client does with e-mails, chat sessions, video sessions, or phone calls if the client chooses to record them. However, this unique capacity to record professional activities exactly as they occurred also can provide a benefit to the psychologist. Assuming that a therapist acted ethically, data from telehealth sessions can be used to defend the therapist if the client charges the therapist with misconduct. Although telehealth does present unique risks of harm to both the psychologist and the client, telehealth is probably not inherently more risky than traditional F2F practice because unique advantages also can help and protect the psychologist and the client.

Technological Competence Case Example 1 demonstrates one way in which the limited technological competence of the client can lead to an unwanted outcome. Limited competence

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on the part of the psychologist also can be a problem. Case Example 2 Dr. X is a psychologist who prides herself on her concise, to-the-point e-mails. During an initial telehealth session using IM software with a client who lived in another state, Dr. X noticed that the client tended to write very lengthy, rambling passages that took her a long time to read and understand. To model more organized thinking, Dr. X made sure to keep her responses simple and brief. Unbeknownst to her, the client interpreted this brevity as coldness. Suddenly, their chat was interrupted by a software error. Dr. X did not know what caused the problem and could not reestablish a connection to the client. Dr. X had no idea whether the problem was with her Internet connection or the client’s or was due to a problem with her computer. She decided to send an e-mail to the client apologizing for the problem and offering to talk with him again once she had figured out what went wrong. Unfortunately, the client did not check e-mail frequently and assumed that this technical glitch, combined with Dr. X’s “coldness,” meant that Dr. X really did not like him and did not want to work with him. The client felt discouraged and decided that talking to a therapist had been a bad idea. We can examine this case using the RM model. Little is known about the contextual risk factors, other than that the client lived in another state from Dr. X. Aside from Dr. X’s problems handling a technical problem when it arose, what also is clear is that a mismatch existed between the writing style of the psychologist and the client. The risk to the psychologist in this case was relatively low because the psychologist did nothing grossly incompetent and the client had no known major risk factors. The outcome was negative in that the client gave up on the treatment, but this outcome was not terrible, and

the psychologist should have little fear of disciplinary consequences. One reason the psychologist should have concern relates to the possibility that she might have violated the law by treating a client who lived outside the state in which she was licensed. This legal issue deserves some mention because it remains an ambiguous area of telehealth. For psychologists, it is unclear where treatment occurs when treating someone in a different state or country, which may determine whether the psychologists are illegally treating outside of the state in which they are licensed to practice. Does the service occur where the psychologist is located or where the client is located? Arguments can be made either way, but case law has not yet addressed the issue. This is a situation in which technology moves faster than the law. Many states, however, have temporary practice provisions that allow psychologists licensed in other states to temporarily practice in their state without getting a notice or, sometimes, without even notifying the licensing board of the state where the service is taking place. Koocher (2007) suggested that the client and psychologist may agree ahead of time which jurisdiction’s laws should apply, in case the client wishes to file a complaint, for example. Consequently, in the interest of cautious risk management, it is not a good idea to treat people who are located in another state if the treatment violates temporary practice provisions of that state. Technological competence relates to the ethical principle of respecting one’s own boundaries of competence and refers to a unique and diverse skill set that is required when engaging in telehealth. Telehealth skills vary. For example, text-based communication requires skills that are not necessarily practiced in F2F therapy. One must understand the nuances of text. Dr. X was not aware that her concise responses were being misinterpreted as terse and judgmental by her client. Although it is always possible to be misinterpreted, in some ways, it is more likely to happen with written communication, as opposed to verbal communication, because of the absence of behavioral cues. People rely heavily on contextual cues like body language, tone of voice, and previous experience to interpret the intent of words. Without them, a reader can more easily project personal biases and insecurities, 191

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resulting in misinterpretations. Sarcasm, for example, relies heavily on tone of voice and body language to be interpreted accurately because the content of the sarcastic comment is precisely the opposite of what the speaker intends to convey. Some writers assume that their emotional state will be conveyed through their written words, but the reality is that people easily can misperceive emotions in text, particularly if they themselves are in a heightened emotional state or prone to cognitive distortions. Not only is the reader more likely to misinterpret intent, but also the writers may have a more difficult time gauging how their words are being received without the benefit of facial cues and body language. It is precisely because of the limitations of textonly communication that psychologists must take extra precautions to be explicit and not assume that the reader can “read between the lines.” This can be accomplished in several ways, from using emoticons (e.g., J, L) that help express the writer’s emotional state, to abbreviations (e.g., LOL = Laughing Out Loud, ? = I don’t understand, OJ = Only Joking), to simply making a greater effort to clearly state one’s feelings and reactions. For example, Dr. X’s conciseness might not have been misinterpreted as judgmental if she had made her intentions clearer: Dr. X: I can see that you have a lot to get off your chest and I want to read all of it, but our session time is limited and I want to ensure that I have time to help you in some specific ways. Can we try to focus in on the area that is of most concern to you today? Just so you know, I tend to be pretty concise when I type to make more efficient use of our time, but if you’d like me to expand on anything I’ve written just say so and I would be happy to. Despite the limitations of text-based communication, there are arguably some advantages of written versus spoken communication. Writing tends to require more thought and provides the nonimpulsive person with an opportunity to review and change words, hopefully resulting in more accurate selfexpression. Also, some people become less inhibited and more verbose in choosing words. Without another live person to focus attention on, it may be that people 192

tend to become more self-focused while writing, resulting in greater self-disclosure and introspection. The disinhibiting effect of writing has the potential to be useful in therapy because it can encourage some people to be more expressive or more honest, but it also can result in impulsiveness that the writer later regrets. Asynchronous communication, like e-mail, allows the writer to respond whenever time is available, and to take as much time as is needed. Not only must the psychologist be competent in the medium of telehealth and understand the technology well enough to be able to troubleshoot and have backup plans in case of major problems, the client’s competence also must be considered. Although younger people tend to be competent in the use of technology, many people use e-mail and IM software with only a superficial understanding of how they work, and when a problem arises, they are likely to ask someone else to fix it for them. In addition, they may not be well versed in the conventions of asynchronous communication, such as the use of abbreviations or emoticons. Psychologists should assess the client’s technological sophistication and be mindful of it on an ongoing basis. Additional questions to be answered include the following: Does the client understand how to start, stop, and use the required software? Can the client troubleshoot software problems, or will someone else need to be designated to help? Does the client understand the risks to privacy inherent in the technology? Does the client understand that some technological problems are unforeseeable and uncontrollable by the psychologist? The psychologist should attempt to anticipate and educate the client on technological issues when possible and should arrange alternative plans to contact the client in case the technology fails.

Client Appropriateness for Telehealth Not every client is an appropriate candidate for telehealth, just as not every client is an appropriate candidate for F2F therapy. There is no uniform agreement on who is appropriate for telehealth, and this appropriateness depends on the modality of telehealth. Obviously, a minimal level of reading and writing skill would be required for e-mail-based therapy or computer-assisted treatment programs. Some people with psychotic or delusional symptoms may

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not be candidates for telehealth depending on their ability to focus and engage with a therapist who is not physically present as well as on their realitytesting ability. It is reasonable to posit that people with personality disorders and impulse control problems may struggle with certain aspects of telehealth. Some clients, for example, may have great difficulty controlling the impulse to write long, rambling e-mails that would be prohibitively time-consuming for the therapist to read. Or, some clients may get excessively frustrated with jittery video, delays in e-mail responses, or other technical problems. Some clients may struggle with not being able to see what their therapist looks like and with the lack of visual and auditory cues, possibly resulting in harmful transference or misinterpretation of the therapist’s intent. Some psychologists have informally expressed concern about children and telehealth. They believe that children need a relationship with a living, present human to benefit from treatment, and they worry that therapists may miss subtle signs of stress or abuse because the child can be observed in only a limited, controlled way. For example, a child treated using live video conferencing can be observed only within the visual field of the camera. If the child leaves the frame, the therapist cannot follow to see what the child is doing, and natural interactions with other people (e.g., parents) outside of the office cannot be witnessed. These would appear to be reasonable concerns, but there is limited research on the subject and there are no guidelines or standards that explicitly discuss the appropriateness of treating children. Age, verbal ability, and the nature of the problem being treated all may be factors that need to be weighed in determining whether telehealth is appropriate. Psychologists would be well advised to inform clients about the experimental nature of telehealth treatment with children and to consider on an ongoing basis whether the needs of the client may best be served by F2F treatment instead. Not every problem may be appropriate for telehealth. As examples, psychological evaluations, forensic evaluations, school evaluations, and neuropsychological evaluations cannot be performed using telehealth exclusively in a comprehensive way that would meet professional standards of practice. Most psychological tests require live interaction

with the psychologist, and tests administered online are not always equivalent to tests administered in person (Buchanan, 2002). It is difficult to envision at present how a child custody evaluation could be accomplished competently without the live administration of psychological tests or live observation of family members. Although telehealth technologies may be helpful as adjunct tools in conducting evaluations, such as in a case in which an out-of-state family member is interviewed by phone or video as a source of collateral information, telehealth technology cannot at this time replace live comprehensive psychological evaluations. Some problems may not be appropriate for treatment via telehealth, but these probably should be identified on a case-by-case basis just as with F2F treatment. Family therapy, for example, may be possible using video conferencing, but some high-conflict families may need the presence of a live person to help them moderate their emotions.

Emergency Resources One of the biggest differences between psychotherapy conducted via telehealth and psychotherapy conducted by traditional means becomes obvious only when handling emergencies. Case Example 3 Dr. X has been providing F2F psychotherapy for client Mr. Y for 3 months, but Mr. Y left the country for 6 months on an extended assignment for his employer. Mr. Y originally sought help for depression and alcoholism. They agreed to continue treatment via live video conference while Mr. Y was away, to avoid the disruption of having Mr. Y start treatment with another therapist. Mr. Y recently relapsed and left a message on Dr. X’s phone suggesting that he was suicidal and canceling the rest of his appointments. Dr. X had reasonable suspicion that Mr. Y intended to harm himself, but he was unfamiliar with the emergency resources in the foreign country, did not speak the native language, and did not know how to contact emergency services. 193

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When Dr. X attempted to contact Mr. Y by e-mail and phone, he got no response. If Mr. Y was not in another country but instead simply in another state, the obstacles for Dr. X to contact emergency services might be lessened, but obstacles could still remain. What if Dr. X had forgotten to ask his client for his temporary address while he was out of town? Dr. X would have no way of knowing where to direct emergency services. If Mr. Y was not suicidal but had seriously relapsed, would Dr. X know where to direct him to reach the nearest detoxification facility? The Ethics Code does not specifically address issues around imminent threats of harm to self or others and establishes no requirement for a psychologist to take precautions in anticipation of suicidal or homicidal threats. Most states, however, have a legal requirement to take action when a client threatens suicide. Sidestepping the legal question regarding whether psychologists must follow these laws as written in their state or in the state or nation where the client resides, in general, it is good risk management practice to err on the side of caution and to take action rather than not. Several authors and organizations have discussed the importance of taking steps to ensure that emergency resources are available if needed while practicing telehealth (e.g., American Mental Health Counselors Association, 2000; Hughes, 2000; International Society for Mental Health Online, 2000). Case Example 2 should make the reasons clear, but doing so can be difficult. In this example, Dr. X could have relatively easily avoided the dilemma he encountered if he had addressed the issue when he began providing telehealth services. He could have required Mr. Y to provide him with his home address in the foreign country; home phone number; e-mail address; and the contact information for the local police, a hospital, or a local psychotherapist. In some situations, it actually may be preferable to identify a local psychotherapist as a backup who is willing to meet with the client to personally assess the level of risk in case of an emergency and to choose the most appropriate action on the basis of their knowledge of local customs and resources. What if the real name or location of the client is unknown? This is not so unlikely a scenario if the 194

psychologist practices telehealth with patients who are never seen in person. There is no research on how often this occurs, but people do take advantage of the anonymity afforded to them by the Internet. A person may attempt to hire a psychologist online and give a false name and address, assuming the psychologist asks for that information, which not all online therapists do. One reason why clients might do this is if they are ashamed of the problem for which they are seeking help. Another reason might be if the client is a minor and wants help without the parents’ knowledge. In the latter example, not only would it be difficult to take action in case of an emergency, but also it may be illegal to provide the treatment without parental consent. How can a psychologist verify a client’s identity? This question presumes the psychologist wants to. Some online therapists might argue that demanding personal identification undermines a unique value of telehealth: the ability to provide services to people who otherwise would not seek it if it meant disclosing their identity. The Ethics Code does not discuss what personal information must be obtained, but state laws may require information to be obtained as part of the minimal standards for record keeping. Identity is harder to verify if the client is never seen in person. One solution is to require that the first session be F2F. The psychologist can ask instead to receive a copy of the client’s picture identification card, which then cam be compared with the credit card or check that the client likely is using for payment. Efforts to verify identification, though, must be weighed against the added time and difficulty that this places on the client. It is a reasonable, though untested, hypothesis that people who initiate treatment online may be more inclined to expect faster service than people seeking F2F treatment, and they may change their mind when treatment is delayed because the psychologist needs proof of identity. Ultimately, how a psychologist plans for emergencies depends on state law and the unique circumstances and needs of the client.

Advertising Many websites include third-party advertising to help pay for business expenses. Typically, the psychologist does not control what businesses are

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advertised but accepts a small payment whenever a visitor clicks on the advertisement. The Ethics Code does not explicitly address the ethics of this form of advertising. Standard 5 focuses on statements made by a psychologist or people the psychologist has hired and not on those made by other businesses that are advertised on the psychologist’s website. Several organizations (e.g., American Accreditation HealthCare Commission, 2001; American Medical Association, 2000; Health Internet Ethics, 2000; Health on the Net Foundation, 1997; Hughes, 2000; Internet Healthcare Coalition, 2000) have cautioned against the carefree use of third-party advertisements, primarily out of concern that the client could construe these advertisements as endorsements made by the psychologist. Psychologists who advertise other businesses on their website should either attempt to make explicitly clear that no endorsement is given or implied, or else they should be prepared to vouch for the third party. This recommendation is consistent with Standard 3.06 of the Ethics Code, Conflicts of Interests, which essentially prohibits psychologists from taking on multiple roles that create conflicts of interest. Psychologists with financial interests in another company advertised on their website must disclose this relationship. Often psychologists post links to other websites as a way to forward visitors to additional resources. This is less ethically problematic because no one pays the psychologist for the links and thus there is no appearance of a conflict of interest. However, it is generally a good idea to explain to the visitor that the psychologist received no reimbursement for the links and is not affiliated with the other website (assuming that is the case). (More information about issues associated with advertising can be found in Volume 1, Chapter 17, this handbook.)

Disclosure Psychologists who plan to provide services with clients exclusively via telehealth need to disclose important policies, procedures, and information to clients just as they would in an office as part of obtaining informed consent. It is not sufficient to simply provide the same information one would provide in an office visit because of the differences in what information is relevant. One of the most practi-

cal and succinct discussions of what information is important to disclose on a website was written by Maheu (2001) and modified in Ragusea and VandeCreek (2003). These are modified suggestions and should not be considered comprehensive: 1. Describe the services provided explicitly. Some may try to avoid legal liability by describing services as psychoeducational or coaching. If psychotherapy is not intended, then psychologists need to be explicit about what differences the client should expect. 2. Acknowledge the experimental nature of online therapy. Although there is limited empirical evidence supporting the effectiveness of online therapy, it is not considered an empirically validated modality. 3. List the degree or degrees the psychologist has earned, whether the psychologist is licensed, and a resource for the potential client to check the therapist’s credentials. Fraud is much easier to commit when protected by the anonymity of virtual reality, and ethical online psychologists should work hard to verify their own identities and credentials if they wish to keep the public’s trust in using online therapy. Again, this is less of an issue when the online therapy is supplemented with F2F therapy. 4. Require the client provide proof of identity and location. Location is necessary (a) because it may not be legal for the therapist to conduct therapy in the client’s state and (b) so the therapist can establish emergency resources. The psychologist should also be prepared to make a statement about whether online therapy is considered legal in his or her state. States vary in how they have addressed online therapy to date (Koocher & Morray, 2000), and the psychologist could contact his or her state attorney’s general office as well as state professional associations for this information. 5. Acknowledge the limits of confidentiality and privacy as well as suggestions for increasing security. If the client chooses to accept low security, do not ask that basic confidentiality and privacy rights be waived. 6. Give the names or circumstances under which someone other than the psychologist may 195

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read the client’s e-mails or may send the client e-mails. 7. Estimate what the client should expect in terms of how quickly the psychologist may respond to e-mails as well as general boundaries for how much time the client may take to respond. Explain to the client how to deal with the situation if the psychologist does not respond within a specific amount of time (i.e., have the client telephone the psychologist). The psychologist may also want to create a backup plan in case the client does not respond in a timely manner. 8. Provide the phone number or address of the appropriate governmental or association office or department in case the client wishes to complain about the services rendered, assuming they are considered psychological services that fall under regulatory authority. These suggestions can and should be tailored and modified to fit the needs of the psychologist. Disclosure may look very different for a psychologist offering clinical services and a research psychologist who is piloting a web-based self-help program, for example. Consistent with Standard 3.10 of the Ethics Code, Informed Consent, disclosure should be easily understandable and ideally should be presented in such a manner as to require the assent of the reader. In other words, important information should not simply be easily available to read but should be required and acknowledged by the reader. This ensures that the telehealth user is informed and protects the psychologist in case the user later claims ignorance of the policies. THE MORE THINGS CHANGE . . . Telecommunications technology does provide exciting opportunities for innovative forms of psychological treatment and assessment, but the ethical standards psychologists must adhere to do not change when practicing telehealth. Psychologists do need to educate themselves about what telehealth practices currently are supported by empirical research, in keeping with the ethical standard of competence. They may have to modify their practices and policies to help ensure confidentiality or 196

that informed consent is obtained. And, just as with any new form of treatment, there are potential risks with telehealth. The therapeutic relationship may be lessened because of the lack of physical presence, or it may become overly idealized in the mind of the client for the same reason. Psychologists should consider utilizing the RM formula when appropriate, to parse out the potential risks of a given action from the potential benefits. A sample informed consent form (see Appendix 10.1) is another tool that addresses several of the ethical issues discussed in this chapter. This document is not intended as legal advice and readers should consult with legal counsel regarding specific requirements of law. Psychologists should not feel obligated to offer telehealth services, and they also should not dismiss telehealth as too risky or too complicated. Building competence in telehealth is no different than building competence in another specialized area of psychology, and when done competently it is arguably no more risky. A simple search of the PsycINFO database reveals a growing body of research that shows telehealth to be effective and that describes innovative strategies for treatment and assessment. Telehealth will become a permanent part of the practice of psychology, not because technology is fashionable but because telehealth offers some unique advantages over F2F treatment, and also because it can be done safely and effectively. Although the evolution of the Internet was driven by innovation, psychologists will continue to discuss and discover ways to ensure that telehealth adheres to the high ethical standards that have always characterized the practice of psychology. APPENDIX 10.1: SAMPLE INFORMED CONSENT FORM FOR TELEHEALTH Thank you for your interest in treatment, I look forward to our work together. Because you have expressed an interest in receiving treatment using telehealth technologies, there are some things you should know first. Although a growing body of research suggests telehealth to be an effective form of treatment, it still is considered an experimental form of treatment. There are other treatment options, such as in-person talk therapy, that are well-established by research and

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proven to be effective. If you ever feel that your treatment needs are not being met through a telehealth modality, please talk to me about other options. Understand that there are certain risks to your privacy that are unavoidable when using telehealth technologies. Maintaining confidentiality is a shared responsibility between you and me. I am happy to discuss what precautions I take to ensure the privacy of your information, and I encourage you to talk with me about steps you can also take to ensure that our work together stays private. I will also provide you with my privacy policies, in compliance with the Health Insurance Portability and Accountability Act and other legal requirements. Sometimes technology malfunctions, and sometimes you may worry that I did not receive a phone call, e-mail, or text message. I guarantee that I will respond to your communication within 24 hours, or else I will let you know when I will be available to respond more thoroughly. If you do not hear from me within 24 hours, please do attempt to contact me again by the same or another means. I guarantee that only I will hear, read, and/or respond to your communications. It is my policy to establish an alternative plan for communication in case of technological malfunction, which we will discuss before beginning treatment. If you are located in another town or state, I do require that we establish a plan for handling emergencies that may occur. Because I cannot be personally present, for example, you may need to provide me with the local number for emergency services or for a local psychotherapist who has agreed to personally handle emergencies, if that becomes necessary, to protect you or someone else. I am licensed to practice psychology in the state I live in. If you live in another state, understand that the law is unclear about whether my license extends to cover work that I do with you in your state. Unless you explicitly request otherwise, I ask that we agree to permit my state’s licensing board to handle any complaints you have about our work, should the need arise. We will discuss fees and payment arrangements before starting treatment. If you are planning on using health insurance, understand that your company may not cover telehealth services, and it is

your responsibility to determine this ahead of time. Payment will still be expected if your insurance company does not cover my fee. _______________________________ Client Signature and Date

References American Accreditation HealthCare Commission. (2001). Health web site standards. Retrieved May 5, 2002, from http://webapps.urac.org/websiteaccreditation/ portal/business/allstandards.asp (this document is no longer available from the website) American Counseling Association. (1999, October). Ethical standards for Internet on-line counseling. Retrieved January 26, 2001, from http://www. counseling.org/gc/cybertx.htm (this website is no longer available) American Medical Association. (2000). Guidelines for medical and health information sites on the Internet. Retrieved April 11, 2002, from http://www.amaassn. org/ama/pub/category/1905.html (this website is no longer available) American Mental Health Counselors Association. (2000). Code of ethics of the American Mental Health Counselors Association. Retrieved from http://www. amhca.org/code/#14 American Psychiatric Association. (1998). APA resource document on telepsychiatry via teleconferencing. Retrieved July 13, 2002, from http://www.psych.org/ pract_of_psych/tp_paper.cfm (this website is no longer available) American Psychological Association. (1997). Services by telephone, teleconferencing, and Internet: A statement by the Ethics Committee of the American Psychological Association. Retrieved from http://apa.org/ethics/ stmnt01.html American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. doi:10.1037/0003-066X.57.12.1060 American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx American Telemedicine Association. (2009). Evidencebased practice for telemental health. Retrieved from http://www.americantelemed.org/files/public/ standards/EvidenceBasedTelementalHealth_ WithCover.pdf Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). 197

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Assessing and managing risk in psychological practice: An individualized approach. Rockville, MD: American Psychological Association Insurance Trust. Bewick, B. M., Trusler, K., Barkham, M., Hill, A., Cahill, J., & Mulhern, B. (2008, July). The effectiveness of web-based interventions designed to decrease alcohol consumption—A systematic review. Preventive Medicine, 47(1), 17–26. Buchanan, T. (2002). Online assessment: Desirable or dangerous? Professional Psychology: Research and Practice, 33, 148–154. doi:10.1037/0735-7028. 33.2.148 Centers for Medicare and Medicaid Services. (2007). Security standards: Technical safeguards. Retrieved from http://www.cms.hhs.gov/EducationMaterials/ Downloads/SecurityStandardsTechnicalSafeguards.pdf Fisher, C. B., & Fried, A. L. (2003). Internet-mediated psychological services and the American Psychological Association Ethics Code. Psychotherapy: Theory, Research, Practice, Training, 40(1–2), 103–111. doi:10.1037/0033-3204.40.1-2.103 Health Insurance Portability and Accountability Act of 1996. Pub L. 104-191. (1996). Health Internet Ethics. (2000). Ethical principles for offering Internet health services to consumers. Retrieved February 27, 2001, from http://www.hiethics.org/ principles/index.asp (this website is no longer available) Health on the Net Foundation. (1997). Principles. Retrieved from http://www.hon.ch/HONcode/ Conduct.html Hughes, R. S. (2000). Cybercounseling and regulations: Quagmire or quest? In J. W. Bloom & G. R. Walz (Eds.), Cybercounseling and cyberlearning: Strategies and resources for the new millennium (pp. 321–338). Alexandria, VA: American Counseling Association. Humphreys, K., Winzelberg, A., & Klaw, E. (2000). Psychologists’ ethical responsibilities in Internetbased groups: Issues, strategies, and a call for dialogue. Professional Psychology: Research and Practice, 31, 493–496. doi:10.1037/0735-7028.31.5.493 International Society for Mental Health Online. (2000). ISMHO/PSI suggested principles for the online provision of mental health services. Retrieved from http://www. ismho.org/suggestions.asp

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Internet Healthcare Coalition. (2000). eHealth code of ethics. Retrieved February 27, 2001, from http://www. ihealthcoalition.org/ethics/ethics.html (this website is no longer available) Jones, J. W. (2004, June). Legal obstacles to Internet prescribing. Physician’s News Digest. Retrieved from http://www.physiciansnews.com/law/604jones.html Kane, B., & Sands, D. (1998). Guidelines for the clinical use of electronic mail with patients. Journal of the American Medical Informatics Association, 5, 104–111. Koocher, G. P. (2007). Twenty-first century ethical challenges for psychology. American Psychologist, 62, 375–384. doi:10.1037/0003-066X.62.5.375 Koocher, G. P., & Morray, E. (2000). Regulation of telepsychology: A survey of state attorneys general. Professional Psychology: Research and Practice, 31, 503–508. doi:10.1037/0735-7028.31.5.503 Maheu, M. (2001). Practicing psychotherapy on the Internet: Risk management challenges and opportunities. The Register Report, 27(1), 23–27. National Board for Certified Counselors. (2001). The practice of Internet counseling. Retrieved from http:// www.nbcc.org/AssetManagerFiles/ethics/internet Counseling.pdf Nie, N. H., & Erbring, L. (2002, Summer). Internet and society: A preliminary report. IT and Society, 1(1), 275–283. Pew Internet and American Life Project. (2009). Social isolation and new technology: How the Internet and mobile phones impact Americans’ social networks. Retrieved from http://www.pewinternet. org/Reports/2009/18–Social-Isolation-and-NewTechnology.aspx Ragusea, A., & VandeCreek, L. (2003). Suggestions for the ethical practice of online therapy. Psychotherapy: Theory, Research, Practice, Training, 40, 94–102. doi:10.1037/0033-3204.40.1-2.94 Reger, M. A., & Gahm, G. A. (2009, January). A metaanalysis of the effects of Internet- and computerbased cognitive-behavioral treatments for anxiety. Journal of Clinical Psychology, 65, 53–75. doi:10.1002/ jclp.20536 Sorrel, A. L. (2009, June 1). Doctor gets jail time for online, out-of-state prescribing. Retrieved from http://www. ama-assn.org/amednews/2009/06/01/prsd0601.htm

CHAPTER 11

POSITIVE ETHICS APPLIED TO PUBLIC EDUCATION THROUGH TRADITIONAL MEDIA AND THE INTERNET David J. Palmiter Jr.

Psychology has a history of ambivalence when it comes to educating the public. On the one hand, there are concerns that complex findings may be simplified to the point of irrelevance, that psychologists working with the media may be seduced into colluding with unethical scenarios, and that psychologists appearing in the media may lose the respect of colleagues. On the other hand, large volumes of people can be reached with little effort, the public can be educated about what psychology has to offer, and the work can be personally gratifying and rewarding (Friedland & Koenig, 1997; Kutner, 1997; McGarrah, Alvord, Martin, & Haldeman, 2009). But, what is public education’s tie-in with ethics? I believe it comes from considering the good that effective public education portends for the public. Kitchener (1984) has identified five principles for guiding ethical decision making in clinical work: beneficence, autonomy, nonmaleficence, justice, and fidelity. Although all five of these principles can be served through effective public education, I focus on beneficence. The overarching ethical value of beneficence—doing good for others—might be realized not only through direct services to individuals, but also through helping educate members of the public with whom psychologists do not have direct professional relationships. Knapp and VandeCreek (2006) broadened the concept of beneficence in a way that is helpful in this context: “Responsibility to the public at large, citizenship, or general beneficence [emphasis added] is a sixth moral virtue that corresponds closely to ‘responsibility to society,’ one of

the principles identified in the Canadian Psychological Association Code of Ethics” (p. 22). How many of us feel energized for our work by reviewing a list of prohibitions? Surely, such lists help to keep us from running afoul, and they therefore protect both the public and us. But how often do they energize our service missions? Would it not be much more uplifting and energizing to consider ethics from a positive perspective? Quoting Knapp and VandeCreek (2006), Ethics could also be viewed as a way to help psychologists fulfill their highest potential as psychologists. It could mean relying on an underlying philosophical system to help psychologists think through complex ethical dilemmas. Ethics should focus not only on how a few psychologists harm patients but also on how all psychologists can do better at helping them. This view of ethics is called positive or active ethics. (p. 10) Thus, positive ethics is less about “don’t do this because that bad thing could happen” and more about “do this so that your mission is more fully realized.” I am arguing that effective public education, in its actualization of general beneficence, is a distilled manifestation of positive ethics. In this context, and as you review this chapter, I would ask you to keep two rhetorical questions in mind: How many societal ills would be significantly reduced if the truth of us was more generally known? Is there a better method for the truth of us to be known than through effective public education?

DOI: 10.1037/13272-011 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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When considering the potential value of public education to more fully realize psychology’s mission, three things seem clear: (a) Most people who might benefit from mental health services do not receive them; (b) most people who need mental health services benefit when they receive them; and (c) the public’s knowledge about mental health issues in general, and regarding the first two points in particular, is poor. Let me focus on these statements in regard to child clinical psychology, the area in which I specialize. Between 13% and 22% of U.S. children appear to meet diagnostic criteria for a mental health disorder (Jellinek et al., 1999; U.S. Department of Health and Human Services & Substance Abuse and Mental Health Services Administration [USDHHS & SAMHSA], 2003). Considering the 2005 U.S. Census data (U.S. Census Bureau, 2009), this suggests that between 10 and 17 million youth meet criteria for a Diagnostic and Statistical Manual of Mental Disorders (DSM–IV; American Psychiatric Association, 1994) condition. However, only about 10% to 20% of these individuals receive effective care (Kataoka, Zhang, & Wells, 2002; Lavigne et al., 1998; Pescosolido et al., 2008), even after they have come into contact with professionals who serve youth (Burns et al., 2004; Bussing, Zima, Perwien, Belin, & Widawski, 1998). Moreover, many youth who get care typically suffer for years before getting it (Chang, Steiner, & Ketter, 2003; Keller et al., 1992), perhaps because adults often do not recognize the signs of psychological disorders in youth (Pescosolido et al., 2008) or underestimate the psychological distress that youth experience (American Psychological Association [APA], 2010b). These problems exist even though meta-analytic studies on evidence-based child psychotherapy have demonstrated impressive effect sizes (e.g., Weisz, Sandler, Durlak, & Anton, 2005). Put briefly: Our children are suffering needlessly. Of course, similar findings course throughout the adult literature (e.g., Alegría et al., 2008). Clearly, effectively educating the public, if it stands to reduce such needless suffering, represents an actualization of general beneficence. In the remainder of this chapter, I review the application of positive ethics to public education, across both traditional media and electronic venues, 200

by reviewing an assortment of case studies. These vignettes are gleaned from personal experience, from the accounts of others, or from extrapolations of such; in each case, I have changed identifiers and unimportant aspects of the context to avoid identifying any particular individuals or media organizations. I also make recommendations at the end of each of the two sections. PUBLIC EDUCATION IN TRADITIONAL MEDIA VENUES By media professionals (MPs), I mean those individuals that collect, organize, and present the offerings of psychologists to the public. The leeriness that many psychologists have about working with MPs brings to mind a truism from child clinical work: Once you’ve seen one family you’ve seen one family. Unlike MPs, however, just about all families wish to be happy, even though their methods for accomplishing happiness may sometimes be misguided. Having worked with hundreds of MPs, and having heard the accounts of hundreds of psychologists who routinely do public education, I have concluded that once you’ve worked with one MP, you’ve worked with one MP. Their verbal ability, organizational skills, psychological mindedness, interviewing skills, preparedness for the interview, and writing skills vary wildly. That said, my judgment is that just about all MPs wish to generate a competent product and to serve the public in a way that is both engaging and informative (i.e., what is sometimes called edutainment). I have dealt a few times with MPs who seemed to be incompetent or nefariously motivated, but this has been rare (estimated at 1%–2%). Thus, the case studies that follow are not designed to suggest that the MP have had a troubled agenda. It is to assume, however, that many MPs are not familiar with the ethical and moral issues that arise when we do public education.

Responding Effectively to Questions You Cannot Answer Case Example 1 Dr. Robinson, an experienced child psychologist, was called by a wellknown CNN reporter, Ms. Smith, and

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asked if he would be willing to comment on the Columbine shootings. The reporter was particularly interested in helping viewers to understand what might have motivated the adolescent perpetrators. Dr. Robinson wonders whether he should speculate about that. I would suggest that Dr. Robinson respond as follows: Many of us are hurting over what happened, so your question is a very important one that deserves to be answered. Unfortunately, it is very difficult for me, not having worked with these teens, to estimate what was in their hearts and minds. However, I can share what our research suggests are some possible causes of school violence and make practical suggestions for reducing the occurrence of these horrible tragedies. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010a) Standard 5.04, Media Presentations, takes us part of the way in discerning how to respond to such a question as it directs us to not act like we have established a professional relationship when we have not. If one were to leave matters there, one simply would decline to answer the question. However, a subscription to the principle of general beneficence would call a psychologist to do more, beginning with trying to empathize with the reporter’s (and by extension, the audience’s) motives in asking such a question. When people do terrible things, it is natural to want to understand how these things could happen. And, more important, we want to avoid repeat traumas. Thus, it is easy to empathize with the reporter’s query. However, one would leave the job half done to only express empathy for the question and then decline to answer it. More helpful would be to press on and to share the best of what psychology has to offer (i.e., a research-based and engaging review of the known causes of school violence and what might be done to reduce such violence). It just takes a little reframing to initiate such a helpful exchange.

But, what if Dr. Robinson answers the question as asked? Obviously, getting a call from an MP from a national news outlet can be exciting. Dr. Robinson might reach millions of people with his helpful words and experience multiple secondary benefits. So, it would be easy to empathize with Dr. Robinson should he answer the question as asked. However, answering the question, unmodified, supports a common cultural myth: Psychologists are like Delphic oracles; just give us a little bit of data, and we can provide you with compelling and helpful truths. This is what Koocher and Keith-Spiegel (2008, p. 293) noted is sometimes referred to as “fast food therapy”; such pronouncements are neither prudent nor helpful. For instance, less psychologically minded members of the public might then expect their local psychologist to be able to understand the nature of their problems in a few moments, creating burdens and complexities for clinicians who wish to be efficient but thorough, helpful but prudent, engaging but nuanced. Alternatively, psychologically minded members of the public might unfairly, but understandably, come to the conclusion that we are arrogant, stupid, or lascivious (e.g., “psychologists think they can read people’s minds,” “psychologists think they can know what motivates someone they’ve never met,” “psychologists are trying to front like they’re all that just to pick us clean”), and stay away from us in droves.

Paying for Media Exposure Case Example 2 Dr. Edgar has just published a book on helping couples to communicate about their finances. That same month a national news story broke about a wellknown celebrity being arrested for battering his wife following a conflict regarding their finances. After several national news outlets turned down his offer to comment on this story, Dr. Edgar offers to pay a producer of a national daytime talk show if the producer will allow him to sit on a panel being assembled to discuss the story and promote his book. As is consistent with the Ethics Code Standard 5.02, Statements by Others, I would not purchase time 201

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in a venue for which purchasing time is not typical or for which the fact that guests have purchased time is not disclosed. Instead, I would spend my energy offering public education through other avenues. I have found that this vignette generates a great deal of discussion in presentations to psychologists. “Is there something wrong with marketing what we offer?” “What is wrong with paying for marketing?” And, “Sometimes we all act like it’s immoral to turn a profit!” Moreover, if you have ever tried to publish or market a self-help book, you can readily empathize with Dr. Edgar’s frustration. There is nothing wrong with ethical marketing or paying for such marketing. And there is nothing wrong with Dr. Edgar’s apparent motivations. I believe an important problem lies in failing to let the viewers know that he has paid for the access and, by failing to share this information, creating the impression that he is on the panel solely because of his professional standing or accomplishments. Standard 5.02 admonishes purchasing coverage in a news item. Given that we live in the era of a 24-hour news cycle, the lines between news, marketing, and entertainment might be difficult to discern, especially given how often the three seem to be fused. If a media product is clearly a news item, and a news item only, it is unethical to pay for the opportunity to contribute. If, however, it is unclear whether the media product is purely a news item, and if the psychologist wishes to pay for the access, I believe the issue is successfully resolved if the paid arrangement is clearly disclosed. For example, if Dr. Edgar paid for commercial time on a station or program, and that was clearly indicated, I believe there would be no problem with proceeding because he had accomplished transparency (and therefore honesty).

Using Clients to Market Case Example 3 Dr. Sue has just published a book on helping high-functioning professionals who are suffering from the early stages of alcoholism to recover. Four years ago she helped a nationally known celebrity begin what proved to be a long-term and successful recovery. Dr. Sue knew that this celebrity had several times discussed 202

being in recovery with national media outlets. She has drafted a letter asking the celebrity if he would be willing to offer a testimonial to be included in her book. She stresses in this letter that she would be “100% okay” with him saying no and encourages him to do so if he feels “even a little bit uncomfortable.” However, Dr. Sue decides to consult with a colleague before sending the letter. The relevant section of the Code of Ethics falls under Standard 5.05, Testimonials. This section admonishes against soliciting testimonials from current clients or former clients who are vulnerable to undue influence. However, experienced therapists realize the power that they hold over their clients often does not end at the point of termination. Such influence often leaves a client less free to say “no” to a request from a current or a previous therapist for a favor. I will elaborate on these issues in regard to Case Example 6. If one is good at what one does, there ought to be plenty of colleagues from whom one could solicit a testimonial. If one really needed or wanted the perspective of a relevantly experienced layperson, one could approach the leadership of a relevant national, regional, or local self-help group and solicit his or her assistance. Consider Case Example 3 again, and imagine instead that a client learns about Dr. Sue’s book from someone else and offers a testimonial for Dr. Sue to use in her book. I need to first distinguish between that which is unethical and that which risky. By risky, I mean acts of commission or omission that place one at a higher risk for being the object of an unwanted external review. All unethical behavior is risky, but not all risky behavior is unethical (Caudill, 2002; Woody, 1988). Let me consider the distinction in this case. Although Dr. Sue is not requesting a testimonial, she is receiving an offer to engage in a multiple relationship (Standard 3.05, Multiple Relationships). Although multiple relationships can be harmless and even indicated (e.g., in rural settings), I would avoid taking the client up on this offer, not because doing so would be inherently unethical but because it would involve risks that I would judge not to be worth the small upside. For instance,

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what if the client later sours on the therapy and asks for a retraction? Or, what if the client tells his spouse about it and his spouse, feeling embarrassed over the fact that her husband made a public disclosure of being in therapy, files a complaint with the state licensing board? Although we all vary regarding how much risk we are willing to endure, most of us prefer to spend our professional time understanding, healing, and helping others, instead of defending ourselves to outside parties.

Communicating About Experimental Approaches Case Example 4 Through his years of practice, Dr. Sullivan had discovered a number of methods for coping with stress. These methods include drinking a juice distilled from herbal extracts, sewing, and acupuncture. Over time Dr. Sullivan has combined these, and a few related techniques, to develop a program for conquering most types of stress. Dr. Sullivan is called by a local television reporter and asked to be an expert for an extended segment on helping executives to overcome performance anxiety. He wonders if it is okay to recommend his program. The Ethics Code Standard 5.04, Media Presentations, asks us to practice on the basis of our “professional knowledge, training, or experience in accord with appropriate psychological literature and practice.” Hence, I would counsel Dr. Sullivan to search the scientific literature to determine which strategies have the most empirical support for alleviating performance anxiety. During the television interview, and assuming he is knowledgeable about these methods, I would suggest that Dr. Sullivan cover those methods in as tight and as an engaging manner as possible. That said, Dr. Sullivan might go on to suggest that there are other experimental methods available in instances in which the established approaches fail or otherwise are contraindicated, and that anyone who is interested in learning about these alternatives could contact him. I also believe Dr. Sullivan might find value in partnering with a

university psychologist to do research on his protocol (i.e., so that specific benefits from his program might be teased out from nonspecific benefits and the passage of time). The realization of a healing mission is exciting, especially when this realization results from one’s original idea(s); it is natural to want to shout such excitement from the rooftops. However, the distance between a creative idea (even one that has been implemented in one’s practice) and a research-supported conclusion is large. One reason our profession emphasizes research is that nonspecific benefits can accrue whenever a nice and organized person tries to be helpful. Let’s say that I developed a roller coaster therapy for treating adolescent depression—the teen completes three roller coaster rides a week for 6 months— and I do all of the things that a nice and organized therapist does (e.g., display caring, explain the rationale for the procedures, flexibly follow the procedures, etc.). I would expect a sizable number of my teen clients to recover (i.e., the combined effect of the passage of time and nonspecific effects). A steely-eyed scientist, however, would appropriately wonder whether I had established a specific benefit from the rides and might challenge thusly: Dr. Palmiter, if you haven’t teased out a specific benefit by comparing your approach with an active psychosocial placebo of the same dosage, why not tell your clients that the treatment is to wear wool socks? This way you could get all the benefits from the nonspecific effects, and the passage of time, without making the family endure the costs and inconvenience of taking three roller coaster rides a week. Today’s experimental approach can be tomorrow’s established cure, but one does well to be cautious and humble in the interim, especially when communicating with the public.

Combining Clinical Work With Public Education Case Example 5 Dr. Johnson agrees to appear on a live call-in show on mood disorders. After 203

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speaking with Bill, a listener, for 2 minutes, Bill asks Dr. Johnson if he thinks he (Bill) might be suffering from bipolar disorder and whether he should get therapy for it. I would say something like this: Bill, if I was in the situation you’ve described I’d have exactly these same questions as they cut to the core of your well-being. That said, I could be doing you a significant disservice to estimate if you are suffering from a bipolar disorder. After all, it takes me about (insert the time it typically takes for the psychologist to do such an evaluation) to become reasonably confident about a question like that, and we’ve just spoken for 2 minutes. However, I have heard enough to suggest that it would probably be a great idea for you to get an evaluation. Not only would a good evaluation give you an informed answer to your important questions, but it also would suggest a plan for healing should the evaluation indicate that you are suffering needlessly, no matter what the cause might be. Let me say a little about what a good evaluation would entail and how to get one. Of course, the APA Ethics Code requires that we practice in accord with Standard 9.01, Bases for Assessment, which makes it clear that we should not explicitly or implicitly create the impression that we can offer a diagnosis after such a brief encounter. But, to only say, “Bill, I’m sorry, but it would not be ethical for me to pretend that I can answer your question” is to accomplish only a letter-of-the-law compliance with the code that falls short of actualizing general beneficence and positive ethics. Such a response also runs the risk of embarrassing Bill and diminishing the probability that he, and those who identify with him, will seek out an evaluation (i.e., unintended maleficence and, so it could be, general maleficence). To practice positive ethics would be to recast the moment into one that increases the odds that the listener, and perhaps those who identify 204

with him, would go for an evaluation. Alternatively, one would want to reduce the odds that the listener would feel endorsed in ruling himself in or out for a diagnosis of bipolar disorder. As I discussed, we are fighting against a well-proliferated cultural view, sometimes facilitated by the underbelly of media psychology, that important issues in people’s lives can be understood in a few moments. The art called for in these moments, and in accord with desires to be both prudent and helpful, is to avoid having the caller feel like (a) he or she has asked a stupid question, (b) is being dodged, and (c) has come away from the discussion none the better. A general script is as follows: 1. Provide empathy for the caller (e.g., the goal, the perspective, the question, etc.). 2. Indicate why it is in the caller’s best interest for you to rephrase the question. 3. Answer the new question as specifically, clearly, and helpfully as possible.

Putting Media Professionals in Touch With Clients Case Example 6 Dr. Robbins, a child psychologist, agrees to be interviewed by an MP for USA Today on a piece regarding attentiondeficit/hyperactivity disorder (ADHD). The context for the piece is a recent report in a major medical journal regarding the potential value of using electroencephalography biofeedback to treat certain types of cases of ADHD. Because this is Dr. Robbins’s first time working with a national media outlet, she works diligently to prepare for the interview. Because she is experienced, a skillful teacher, and prepared, the interview goes very well. Because of that, the MP indicates that he wishes to ask his editor for space to do an expanded piece. In service of that agenda, the MP asks Dr. Robbins if she could put him in touch with one of her patients’ parents so that some specific and real-life examples could be included in the piece.

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I would say something like this to the MP: Yes, I think a real-life example or two would make for a wonderful addition to this story. You are onto something there. That said, my professional ethics suggest that I shouldn’t really ask my clients. I know this can seem counterintuitive, but our experience is that our clients often want to please us and therefore may experience a diminished capacity to say no. However, I can put you in touch with the leadership of a couple of national parent support organizations for ADHD. I bet they could easily find as many families as you’d like to help you with this piece. Would you like that contact information? Although the Ethics Code prohibits us from exploiting clients (Standard 3.05, Multiple Relationships), there is no specific admonishment against asking our clients to participate in this sort of a media project. However, I believe, as do others (e.g., Canter, Bennett, Jones, & Nagy, 1994; McGarrah et al., 2009; Wober, 1978), that the spirit of our code contraindicates such requests. As I have reviewed, we do not allow the solicitation of testimonials, in part, because we are concerned that some of our clients, and even former clients, would not feel free to say no. It may be that our clients would benefit from having a testimonial published on a book jacket (e.g., experiencing “a helper’s high,” enjoying a little bit of fame, etc.). However, the utility that might accrue to a client really cannot be considered because we respect that the risk is too high that the client’s autonomy could be compromised when we make the request (e.g., one would not encourage a person to traverse a rickety bridge to access fruit that might be growing on the other side when alternative and safer means for acquiring fruit are readily available). I believe the same rationale applies here. We can facilitate the media product being enhanced by the participation of real case examples and avoid risking putting any our clients in a situation that diminishes their autonomy. Moreover, we cannot predict how effectively the MP would represent a client’s vulnerabilities or how the

public might respond to the story (e.g., a client regresses secondary to being flamed in the comments section that is attached to an online version of the article). Finally, I think proceeding in this manner diminishes the chances that the psychologist would indulge a human, but nonetheless boastful, motivation to publicly display professional efficacy.

Doing Clinical Work With Subjects of Media Projects Case Example 7 Dr. Warner is contacted by a nationally syndicated talk show producer and asked if he would be willing to treat a young woman suffering from depression following her appearance on the program. The psychologist is told that his name would be listed in the credits of the program and on their website. In exchange, the psychologist would need to agree to provide three free sessions to the guest after the taping of the show. Following the three sessions, it would be up to the psychologist and the guest to decide whether treatment would continue and, if so, under what terms. Should Dr. Warner agree to provide this treatment, the program would announce, during the broadcast, that they had arranged for the guest to get care. I would not accept this contract. I would suggest to the MP that I would be willing to have the program, or the prospective guest, contract with me (perhaps pro bono) to do an evaluation on the person before her appearance on the program to ascertain whether (a) treatment was indicated, (b) I was a good choice to provide any needed treatment, and (c) the guest and I could reach a meeting of the minds regarding how the care would be funded after the three free sessions. Quoting APA’s Ethics Director Stephen Behnke (2008): “In the reality TV context, psychologists may be used in a very particular way, namely, to help demonstrate that a producer has exercised due diligence” (p. 46). Of course, what a well-intended 205

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MP believes it may take to establish due diligence can fall quite short of what is called for by positive ethics. For example, we know that we should not agree to provide care unless we have completed an evaluation. It is easy for us to commit to an evaluation without knowing much about a person, but it usually is not advisable to agree to care up front. A person appearing to present with a simple case of depression may have collateral or alternative primary problems that are not within one’s areas of competence to treat (e.g., a cocaine dependency); so to agree to treat such a person before learning this, or to subsequently renege on a promise to provide care, risks harming the client. (For instance, I know of a case in which a client became angry with an evaluating clinician for not making it very clear that the only thing being promised was an evaluation. Said the client: “But, I never would have opened up as much with you had I known there was a chance you would not be my therapist!”) Or, a prospective client may have an agenda that is not consistent with the sort of care she is requesting (e.g., the person does not believe that she is depressed but is seeking care to keep her spouse from divorcing her), and so to proceed would be to engage the client’s resources in what has a reasonable chance of ending up as a feckless enterprise. Moreover, once we agree to care, we obviously cannot wash our hands of all responsibility for the client’s well-being once the third session is completed.

Additional Recommendations for Working With Media Professionals I have heard it implied, during the question-andanswer session that occurs at media training for psychologists, that working with the media is like walking through a minefield while snipers are firing. After such trainings, I have wondered why anyone new to public education would want to bother with this work. My experience, however, suggests a different metaphor. Working with the media is like walking in a field of beautiful flowers where bees are collecting pollen. If one takes a few precautions, and keeps an eye open for the rare snake that might be slithering about, it can be a mission-enhancing and rewarding experience. The following suggestions are meant to increase your effectiveness (i.e., to more 206

fully realize general beneficence) and reduce your risk should you choose to walk through this field of flowers. Endeavor to be edutaining. We are practicing beneficently when we share the best of our science with the public in a way that is both educational and entertaining. If we entertain but do not educate, our audience may have an enjoyable moment, but they do not receive information that stands to improve the quality of their lives. On the other hand, if we educate in a way that is dry, many in our audience may not encode the information we are offering (e.g., people click on to the next channel or skip ahead in the article), and our access to future opportunities may shrivel up (e.g., MPs conclude that we are boring and not a good candidate for future collaborations). Be clear about your motives. Balter, as cited in Friedland and Koenig (1997), stated the issue well: A cautionary note to others who might become involved with careers in the media: Individuals who appear in the media can be swept up in the “star” mentality. Too many who bask in the glow of the spotlight become spoiled. They develop an exaggerated sense of their worth and abilities. Their careers turn from a focus on being in a helping profession to that of self-aggrandizement. (p. 136) My personal experience doing media work and consulting with others about their media work suggests that many ethical dilemmas seem to evaporate if one stays focused on a service mission (e.g., I’m doing this for the public good and because it gives my life meaning). This is not to call into question enjoying the metaphorical and literal bank that can accrue from doing media work (e.g., referrals to one’s practice, selling more copies of one’s book, adding to the service section in one’s application for tenure, etc.). Nor is it to suggest that most of us can completely evacuate selfish motives from our efforts to educate the public. Instead, I recommend adopting a philosophy that I have found to be common among psychologists who regularly do effective

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public education: money often follows mission, but mission rarely follows money. Moreover, because so many ethical conundrums seem to occur when psychologists ineffectively pursue their own needs (e.g., profit, sexual satisfaction, etc.), this stance also may serve a protective function. Create peer review for your media work. Effective peer review allows us to consider how much our subjectivity colors our judgments about the effectiveness and quality of what we produce. As someone who seeks out peer review on a regular basis, I have found myself most satisfied when I have sought out consultation from colleagues who meet three criteria: They were experienced, kindly, and as likely to agree with me as they were to disagree with me. Do some research on the topic, even if it is one with which you are very familiar. PsycINFO, Google Scholar, and PubMed are examples of electronic resources that you could employ; of course, you may have print products that can be of service as well. And, if you are not familiar with the outlet or the MP, I would check them out as well; this allows you to know whether you have stumbled on the rare snake in the field of flowers. In a gracious and kind fashion, reframe questions you cannot answer into ones that you can. I recently attended a training on working with the media where a forensic psychologist shared a story about an MP asking him to come on a nationally syndicated television program to comment on the profile of a serial killer who had just been arrested. The psychologist said, “I told him that I could not comment on someone I had never evaluated. To which he replied, ‘What good are you?’ and hung up on me.” Perhaps there was no ethical way for the psychologist to have avoided that outcome. However, what good came of that exchange? And, did this outcome not increase the odds that the MP would find a less ethical psychologist to come on the program and deepen the public’s misunderstanding of what we do? I would have wished for the psychologist to have said something like this: Bob, understanding this man’s psychology is a critically important task isn’t it? I know I very much want to understand

him too, so I understand that agenda. That said, I’d be shooting from the lip, and doing your audience a disservice, were I to act like I had examined him, (note the comma and not a period) but I could come on and talk about what our science suggests about people who commit multiple homicides and the policy and treatment implications that flow out of this understanding. Might that be helpful? If an MP subsequently misrepresents what you intended to communicate, take steps to correct the error and to let the MP know about your concerns. This can take multiple forms, from calling the MP, to writing a letter, to asking for a follow-up piece, to being in touch with the MP’s supervisor, and so on. Get training in working with the media. The degree and type of training that would be helpful will vary across psychologists and media venues. Division 46 of APA (Media Psychology) has a plethora of resources available along these lines (see also recommendations from Kutner, 1997). Finally, one also can frequently find such trainings available at state, regional, and national psychology conferences. If embarking on a more elaborate media project (e.g., starting an ongoing column, being a repeat guest on a television program, starting a live call-in show), develop a written contract with the venue’s producers. For a set of helpful guidelines, see DeTrude and Warden’s (2000) suggestions. Developing a contract reduces the odds of experiencing a significant conflict later (e.g., the producer assumes that the psychologist would be willing to bring his own clients onto the radio program because, or so the producer reasons, any intelligent person would realize that such contributions would make the pieces more engaging). Be willing to say, “I don’t know.” And, if the venue or interaction allows, be willing to try to find the answer to answerable questions. It is a paradox that one’s credibility may be enhanced when willing to admit the limits of one’s knowledge. Moreover, I have found that MPs highly value a psychologist who is willing to do some legwork to enhance the final product; this increases the odds that you will 207

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become one of the MPs go-to psychologists and that your mission to practice general beneficence will be more fully realized. PUBLIC EDUCATION THROUGH THE INTERNET I have three introductory points to public education through the Internet. First, the Internet is significantly changing how people receive information. Second, once you have thought through the issues, working ethically with electronic media venues is no more difficult than working ethically with traditional media, and actually it may be easier in some regards. Third, these media offer exciting opportunities for public education. To the first point: It is a fact that the Internet, in general, and social networking sites, in particular, have become deeply woven into the fabric of our culture. For instance, Twitter, which launched in 2006, grew 1,382% from February 2008 to February 2009 and has more than 10 million members (O’Reilly & Milstein, 2009); Facebook has 250 million active registered users and is the fourth most visited site in the world (Schonfeld, 2009); and LinkedIn has more than 45 million members (LinkedIn.com, 2008). About three fourths of all psychology graduate students and early career psychologists use social networking sites for personal reasons (Taylor, McMinn, Bufford, & Chang, 2010). It is also a fact that people routinely use the Internet when making decisions about their health care. For instance, 40% of adult Americans (Baker, Wagner, Singer, & Bundorf, 2003) and 80% of Internet users (Fox, 2005) use the Internet to help them manage their health care. Moreover, when asked whether it would be helpful to be able to review a psychologist’s website before calling her or him for a first appointment, 80% of consumers responded “very helpful,” whereas only 2% responded “not helpful” (Palmiter & Renjilian, 2003). To help make the second point, I will share a vignette. A psychologist doing a call-in program on sex education once had a grandmother ask this: With our culture being so obsessed with sex and offering so many ways for kids 208

to be exposed to sexual themes and images—through websites, iTunes and a whole bunch of other venues that I don’t understand—I don’t know how to educate my granddaughter about healthy sexuality. Do you have any advice for people like me? The psychologist first offered empathy and then said: If your sexuality is healthy, and you understand what it took to get you there, then you probably already have most of what you need to teach your granddaughter what it means to have a healthy sexuality. While the methods through which human sexuality can become unhealthy are expanding, what it takes to accomplish a loving and healthy sexuality has not changed that much. You may just need a book or two to help to guide you in the method of your teaching. Likewise, it may be easy for psychologists to feel overwhelmed by the rapidly emerging Internet technologies and to wonder whether it is possible to do ethical and effective public education through those venues. Although there certainly are cautions to consider (e.g., Zur, Williams, Lehavot, & Knapp, 2009), psychologists who know how to educate the public through traditional venues can find an effective path to educate the public through new technologies once they understand how the technology works and become aware of certain pitfalls that I review in this section. Moreover, as I present additional case studies, note how similar the core issues are to those I already have reviewed. The third point is the simplest to make: Through many of these technologies, we can speak directly to the public and no longer need MPs to be the middleman; having these technologies is like owning your own printing press. Yes, there may be no one with whom to share responsibility for being effective and ethical. Yes, there is a learning curve. And, yes, there is work to be done to ensure that one’s products reach a wide audience. But, it is clear that these technologies offer us a tremendous opportunity to

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practice general beneficence through public education.

relevant for you and your child. Please consult with a qualified professional in order to receive tailored recommendations.”

Professional Versus Educational Services Case Example 8 Dr. Hayfield contacts his state association’s office inquiring about starting a for-fee “information site.” Dr. Hayfield wishes to offer helpful responses to questions that people would send him regarding their problems. I would not offer this kind of service because of the many ethical difficulties. Instead, I might focus on any of the following: developing helpful and practical articles for the website, writing a book on what I had to offer and marketing it through the website, launching a series of talks on these topics for my local community, communicating with my state’s public education coordinator about helping out with a public education campaign, and so on. Although the line between the two can be difficult to discern, it is critical to differentiate educational and professional services. Educational services endeavor to inform the public about findings in psychology without knowledge of a specific individual’s or group’s situation or needs. Alternatively, professional services offer tailored interventions on the basis of unique assessment data. To offer people advice about their unique circumstances is to provide a professional service; such a service would trigger a need for Dr. Hayfield to follow the accepted standards of our field for doing clinical work (see Standard 9.01, Bases of Assessment). One may try to call a cow a horse so as to be able to throw a saddle on it, but it is still a cow. For Dr. Hayfield to offer such a service is akin to diagnosing and treating someone during a television program after having heard just a few minutes worth of their concerns (see Case Example 5 in this chapter). When publishing educational materials, it would be a good idea for psychologists to explicitly distinguish them from professional services. For instance, a psychologist might write, “The information provided in this article about childhood defiance is for general educational purposes only and may not be

Solicitation of Business Case Example 9a Having completed a dissertation and postdoctoral degree focusing on grief interventions, an early career psychologist, Dr. Hart, is considering posting the following to a funeral director’s blog: (a) her credentials, (b) the date and time of a talk she is offering on grief coping, and (c) brief information about a practice she is launching that will focus on grief counseling. Instead of posting this information on the funeral director’s blog, I would let the funeral director know about the scheduled talk. Then the funeral director could decide whether posting this offering on his blog has value. The relevant section of the Ethics Code (Standard 5.06, In-Person Solicitation) prohibits in-person solicitation of vulnerable parties. It seems reasonable to assume that many people reading a funeral director’s blog are coping with loss and grief and therefore are vulnerable. Moreover, such a post would be considered spamming, which in this example would be akin to electronic ambulance chasing. Although this case example does not involve in-person solicitation, I believe it is consistent with the spirit of the code, which does not allow us to force ourselves onto vulnerable parties even when we are confident that we can be helpful. On the other hand, providing public education regarding what psychology has to offer to those suffering from grief, both inside and outside of formal interventions, and marketing this education in an ethical manner, serves the public good and is a beneficent thing to do. Case Example 9b Dr. Hart, on the night of the talk, wonders how much she should mention her qualifications and how much she should emphasize that she is accepting new clients into her practice. 209

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I would keep direct marketing of Dr. Hart’s practice out of her talk. However, I believe it would be fine for her to provide a tight overview of her qualifications in her introduction (whether stated by her or read by another) and include her contact information on the first or last slide indicating that participants can be in touch with her later regarding questions about the talk. I also believe it would be a good idea to have a referral sheet available at the talk for those who become interested in seeking out professional services; Dr. Hart could let her audience know that the sheet is available as an elective handout on some table nearby. To remain in compliance with our well-reasoned code, Dr. Hart should avoid in-person solicitations to her practice. However, there is nothing wrong with letting people know that she is available for follow-up questions (i.e., assuming this occurs on a pro bono basis). Moreover, there is nothing wrong, and it is helpful, to let attendees know where they can find referral information within the room (i.e., instead of forcing the information on them or pressuring them to take it), especially if a range of providers and services is articulated on the sheet.

When Clients Post Online About Clinical Work Case Example 10 A graduate student–clinician is shown a Facebook page where her client writes very unflattering things about her, most of which greatly distort interactions in therapy. The client goes on to lambast psychotherapy in general. The trainee is considering posting a response to clarify matters. She argues that this particular Facebook page has a wide following and she wishes to defend both herself and psychotherapy in general. She is also very confused how to broach this topic with her client. I would not post anything to the page. If discussing the matter with my supervisor did not relieve pressing negative feelings and thoughts, I would consider taking other ethical actions to find peace (e.g., seeking out additional supervision, starting counseling, 210

meditating, etc.). In terms of the clinical work, I would not proceed with the treatment until I had sufficiently coped with my own pain. If I could not manage this quickly, I would consider, together with my supervisor, whether a transfer to a different therapist would be in order. However, assuming I could effectively manage such thoughts and feelings, how I would proceed would depend on the strength or fragility of the client. For fragile clients (i.e., ones who might easily become suicidal, require hospitalization, etc.) I might not bring up the posting at all but would allow the concerns I read about inform how I proceeded. For more stable clients I would try to conceive of the posting as an opportunity to understand important but inadequately expressed thoughts and feelings that the client has about therapy and how such feelings might relate to other problems in the client’s life. I would endeavor to ask open-ended questions about the concerns raised in the post (without referencing the post) and respond to them in a way that facilitated the client’s treatment goals. At some point, I would ask if the client had shared these thoughts and feelings with others. If the client did not mention the post, I would mention that I had seen it and get the client’s reaction—again, with an eye toward providing empathy and facilitating the treatment goals. At the end of the discussion, I would ask the client to both remove the post (if possible) and to refrain from electronic communications like that in the future because strangers might reach unfair conclusions. If the client would not agree, I would consider whether a transfer to another therapist was in order. In instances in which a post cannot be removed, I would not ask the client to post a retraction to the page. But if the client volunteered to do this, I would want the opportunity to discuss the wording. My own preference would be for the post to be very brief and for the client to avoid excessive selfreproach. I might prefer something like, I’ve thought more about my post of [date and time] and decided that it was more reflective of a phase I had to go through in my care than it was of my therapist’s competence and skill. I regret the statements that either directly stated, or indirectly implied, that my therapist is not

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competent or that counseling does not have value. It is a very challenging experience to read public posts that unfairly characterize one’s competence, especially when it regards privileged content and is authored by someone whom one is endeavoring to help. In these instances, the client can characterize what happened, up to the point of libel or slander, to whomever they want, whenever they want, whereas the therapist cannot. At least in the case under review, the therapist learned about what was being said and could develop a plan for responding effectively within the confines of the supervision and treatment. However, trying to resolve this matter publicly creates too many ethical risks. For instance, many types of responses that the therapist might make to the post (e.g., correcting inaccuracies) could be conceived of violating the client’s confidentiality (in violation of Standard 4.05b). Moreover, posts by the therapist could do harm to the therapeutic work and possibly damage the client in other ways as well (in violation of Standard 3.04). Clearly, the therapist must start by taking care of any damage done to her and assess whether the degree of that damage contraindicates her continuing as the client’s therapist. However, this does not mitigate the responsibility of the therapist to not transfer the confidential clinical work into a public venue.

Allowing the Public to Post on One’s Internet Turf Case Example 11 A therapist has a professional Facebook page to do public education on mood disorders. On this page, two people begin debating whether or not suicide should be legal in the United States. As the debate becomes regressed, one of the participants discloses that she is suicidal and has an immediate plan to kill herself this coming weekend. The psychologist comes across this dialogue during a routine weekly review of the page. If the suicidal poster has provided sufficient contact information to allow authorities to find her, the

psychologist should provide the text of the dialogue and the contact information to the poster’s local police station. If the poster has not provided sufficient contact information, the psychologist should be in touch with management at Facebook and ask them to disclose the contact information so that the psychologist can make the relevant phone call(s). If the management at Facebook refuses to provide the information, the psychologist should lobby them to make the call(s) themselves. Of course, consulting with colleagues and documenting both the consultations and the efforts to be helpful are in order. In addition to practicing beneficence, doing so establishes due diligence in case of a subsequent complaint or malpractice action. Case Example 11 raises significant ethical and risk management issues. Ethically, we wish to do well by the public as we pursue effective public education. So if, in our efforts to educate, people come together to do harm to each other, our efforts become compromised (i.e., one could almost say we are trying to avoid general maleficence). Although the relevant section of the Ethics Code (Standard 3.04, Avoiding Harm) does not specifically mention those who consume and interact with our Internet offerings in its listing of those we should avoid harming, I believe this audience is encapsulated by the phrasing “others with whom they work.” In terms of the risk management issue, a metaphor comes to mind: If people set up lawn chairs on the street outside your home and subsequently do hurtful, illegal, or damaging things, that is their responsibility. However, if you put lawn chairs on your lawn with a sign that says “you may rest here” and people do hurtful, illegal, or damaging things, a profit-minded sophist could argue that you are partially responsible for any damages that occur, especially if you are not adequately monitoring the activity on your cyberlawn or do not respond effectively when harmful actions become known to you. This said, I know of no such case law on point. I am merely arguing for a ready position.

Accidental Multiple Relationships Case Example 12 Dr. Fleck is a single heterosexual psychologist who finds life too busy to 211

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go out to places where she might meet prospective mates. Hence, she subscribes to an online dating service. A cautious person, she chooses a site that allows participants to withhold their identities and contact information until both parties have agreed that it is okay to exchange such. Dr. Fleck engages in a lengthy dialogue with a man who seems to share many of her interests. After he suggests that they exchange their contact information she agrees. At this point, she discovers that he is a client. Dr. Fleck would seem to need to assess two things before deciding what course to take in the treatment. First, was the client equally innocent of knowing what was going on? Second, did their dialogue compromise her ability to continue to be his therapist? If the client was not innocent (i.e., either went trolling for her or kept secret that he knew what was going on), she would need to ascertain if his acting out either too much damaged the treatment or suggested he possessed a degree or type of pathology that she was not suited to treat. If so, a referral would be in order. Alternatively, if a required feature of the treatment was a high degree of therapist anonymity, or should the nature of the exchanges prove to be too distracting in treatment, a referral would be in order. Of course, in any eventuality, the personal contact should stop, even if the other person proved to be a former client. It is obvious that a multiple relationship of a romantic nature is inappropriate (Standard 3.05). What can be less obvious is what to do about it once it is discovered that it has been accidently born. In this instance, the intention is to ensure that this development does not contraindicate a continuation of the therapeutic work because doing so would either cause harm to the client (i.e., avoiding maleficence) or significantly reduce the therapist’s clinical effectiveness relative to what another therapist might now accomplish (e.g., the therapist is too rattled by what happened). In this example, one almost certainly would want to seek out effective peer consultation both to tease out the salient ethical and treatment issues and to manage risk. 212

All of this said, the sky is not necessarily falling in a situation like this. For instance, many psychologists working in rural settings experience unintended multiple relationships on a regular basis (e.g., Schank & Skovholt, 1997). For example, when I worked in a rural setting, I once had a client move his gym locker right next to mine as he saw me exiting the shower at the one gym in town. With empathy, compassion (toward oneself too), thoughtfulness, and consultation, clarity regarding how best to proceed usually can be accomplished. Although the technology is new (at least to many of us), most of the issues, after having thought things through, are not. ADDITIONAL RECOMMENDATIONS FOR CONDUCTING PUBLIC EDUCATION THROUGH INTERNET VENUES I offer the following additional recommendations to those psychologists who wish to go online either for professional or personal reasons. Think three times before mixing personal contributions with public education or other professional offerings. Because younger psychologists and graduate students are more likely to be engaged with social networking sites than older psychologists (Taylor et al., 2010), the degree of pinch from this recommendation varies across generations. But I generally would not mix personal and professional agenda online unless (a) you are doing so with intention; (b) you have thought through, together with experienced, kind, and assertive colleagues, the clinical and professional implications; and (c) the risk of harming your clients, limiting your professional effectiveness, and being subject to an unwanted external review seems low. So many potential complex ethical situations can be avoided if one keeps his or her professional and personal lives as separate as the nature of one’s practice and professional life indicates is advisable and possible. Quoting a recent article in the Division 29 bulletin regarding social networking sites, “Although befriending a client online does not necessarily constitute an exploitative multiple relationship . . . it may be the first step in a series of increasingly inappropriate communications or disclosures that are not consistent with anticipated professional roles” (Barnett & Russo, 2009, p. 17).

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When using electronic media for personal purposes, ensure that reasonable safeguards are in place so that those with whom you interact professionally (prospective employers, clients, attorneys, etc.) cannot easily gain access without your express permission. A subordinate recommendation would be to deny access to your posts to anyone who you do not know because you never know who is using a false name. Also, keep in mind that those to whom you grant access typically have the ability to redistribute what you have posted (e.g., pictures, commentary, etc.). Moreover, and quoting an article referencing 2009 data, Breach Security’s most recent Web Hacking Incidents Database (WHID) report found that attacks directed to social networks accounted for 19 percent of all hacking incidents between January and July this year. Social media attacks, the bi-annual report said, were the largest growing in that period. (SFGate, 2009) Do not allow the public to post on electronic real estate under your control unless you plan to be diligent about monitoring it and are empowered to dismantle potentially harmful posts. Moreover, state what you are willing and are not willing to do (e.g., to avoid establishing an implied duty), remind people that they are in a nonconfidential public forum, and make it clear that you reserve the right to remove posts. Do not post anything on the Internet when in a regressed state. We all lose mental capacity when we are angry, tired, or regressed. It is easier to recognize the problem and to avoid responding when sitting in our office, dressed in professional attire, surrounded by our professional accoutrements and dealing with a client. However, when sitting at home, in front of our computer, late at night, in casual attire, perhaps sipping a glass of wine, it is easy to forget that we still could be in a situation in which the ethics of our profession apply. An age-old maxim can be tweaked slightly for this context: Do not post anything on the Internet that you would not wish the world to view. As Taylor et al. (2010) have argued regarding the selfdisclosure of psychologists living in an era of a

prolific Internet, “Full intentionality is a thing of the past” (p. 157). However, we can endeavor to avoid posting anything that could unduly complicate our professional life, either now or in the future (this includes postings on professional listservs). For instance, a 2009 survey of 2,600 hiring managers indicated that 65% of prospective employers search social networking sites to obtain information on job applicants (Haefner, 2009). If there is already information about you on the Internet that you believe could compromise your professional mission, do everything reasonable that you can to have it removed. When in doubt about how to respond to a difficult interaction in an electronic medium, imagine that the interaction is happening during a physically in-person presentation to a lay audience. “What would I do if a person started swearing at me during the Q&A?” “What would I do if a person asked me if I am married?” “What would I do if someone invited me to his house for a get-together he is having with his friends?” Would not a psychologist operating from the framework of positive ethics empathize, reframe or redirect, and respond? In all matters regarding public education through electronic venues, endeavor to (a) teach about scientific findings and the difference between them and pseudoscience; (b) teach about topics that are relevant to current issues in the news or on people’s minds, and how psychology can be of service; (c) endeavor to reframe questions into ones you can ethically address; (d) serve as a link to referrals and resources; and (e) demonstrate empathy, kindness, and evidence-based optimism. I can think of few activities in which a psychologist can engage that possess a greater potential for reducing human suffering and promoting wellness.

References Alegría, M., Chatterji, P., Wells, K., Cao, Z., Chen, C., Takeuchi, D., . . . Meng, X. (2008). Disparity in depression treatment among racial and ethnic minority populations in the United States. Psychiatric Services, 59, 1264–1272. doi:10.1176/appi. ps.59.11.1264 American Psychiatric Association. (1994). Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author. 213

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American Psychological Association. (2010a). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx American Psychological Association. (2010b). Stress in America 2010. Retrieved from http://www.apa.org/ news/press/releases/stress/national-report.pdf Baker, L., Wagner, T. H., Singer, S., & Bundorf, M. K. (2003). Use of the Internet and e-mail for health care information. JAMA, 289, 2400–2406. doi:10.1001/ jama.289.18.2400 Barnett, J., & Russo, A. (2009). Psychotherapy, online social networking, and ethics. Psychotherapy Bulletin, 44(3), 15–20, 63–64. Behnke, S. (2008, April). Ethics rounds: Reflections on media ethics for psychologists. Monitor on Psychology, 39(4), 46–47. Burns, B. J., Phillips, S., Wagner, R. H., Barth, R. P., Kolko, D., Campbell, Y., & Landsverk, J. (2004). Mental health need and access to mental health services by youths involved with child welfare: A national survey. Journal of the American Academy of Child and Adolescent Psychiatry, 43, 960–970. doi:10.1097/01.chi.0000127590.95585.65 Bussing, R., Zima, B. T., Perwien, A. R., Belin, T. R., & Widawski, M. (1998). Children in special education programs: Attention deficit hyperactivity disorder, use of services and unmet needs. American Journal of Public Health, 88, 880–886. doi:10.2105/ AJPH.88.6.880 Canter, M. B., Bennett, B. E., Jones, S. E., & Nagy, T. F. (1994). Ethics for psychologists: A commentary on the APA Ethics Code. Washington, DC: American Psychological Association. doi:10.1037/10162-000

(pp. 121–140). Washington, DC: American Psychological Association. doi:10.1037/10509-005 Haefner, R. (2009, June 10). More employees screening candidates via social networking sites. Retrieved from http://www.careerbuilder.com/Article/ CB-1337-Getting-Hired-More-Employers-ScreeningCandidates-via-Social-NetworkingSites/?ArticleID= 1337&cbRecursionCnt=1&cbsid=e4e123a1b488 4a8c8ad25d8dc896091c-304946402-RQ-4&ns_ siteid=ns_us_g_careerbuilders.com_Mo Jellinek, M. S., Murphy, J. M., Little, M., Pagano, M. E., Comer, D. M., & Kelleher, K. J. (1999). Use of the Pediatric Symptom Checklist to screen for psychosocial problems in pediatric primary care: A national feasibility study. Archives of Pediatrics and Adolescent Medicine, 153, 254–260. Kataoka, S. H., Zhang, L., & Wells, K. B. (2002). Unmet need for mental health care among U.S. children: Variation by ethnicity and insurance status. The American Journal of Psychiatry, 159, 1548–1555. doi:10.1176/appi.ajp.159.9.1548 Keller, M. B., Lavori, P. W., Wunder, J., Beardslee, W. R., Schwartz, C. E., & Roth, J. (1992). Chronic course of anxiety disorders in children and adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 31, 595–599. doi:10.1097/00004583199207000-00003 Kitchener, K. S. (1984). Intuition, critical evaluation and ethical principles: The foundation for ethical decisions in counseling psychology. The Counseling Psychologist, 12, 43–55. doi:10.1177/00110000 84123005 Knapp, S. J., & VandeCreek, L. D. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. doi:10.1037/11331-000

Caudill, O. B. (2002). Risk management for psychotherapists: Avoiding the pitfalls. In L. VandeCreek & T. L. Jackson (Eds.), Innovations in clinical practice: A source book (Vol. 20, pp. 307–323). Sarasota, FL: Professional Resource Press.

Koocher, G. P., & Keith-Spiegel, P. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press.

Chang, K., Steiner, H., & Ketter, T. (2003). Studies of offspring of parents with bipolar disorder. American Journal of Medical Genetics, 123C, 26–35. doi:10.1002/ajmg.c.20011

Kutner, L. (1997). New roles for psychologists in the mass media. In S. Kirschner & D. A. Kirschner (Eds.), Perspectives on psychology and the media (pp. 173–190). Washington, DC: American Psychological Association. doi:10.1037/10509-008

DeTrude, J. A., & Warden, S. G. (2000). Counselors in the broadcast media: Professional and ethical considerations. Journal of Professional Counseling: Practice, Theory, and Research, 28, 114–120. Fox, S. (2005, May 17). Health information online. Retrieved from http://www.pewinternet.org/ Reports/2005/Health-Information-Online.aspx Friedland, L., & Koenig, F. (1997). The pioneers of media psychology. In S. Kirschner & D. A. Kirschner (Eds.), Perspectives on psychology and the media 214

Lavigne, J. V., Arend, R., Rosenbaum, D., Binns, H. J., Christoffel, K. K., Burns, A., & Smith, A. (1998). Mental health service use among young children receiving pediatric primary care. Journal of the American Academy of Child and Adolescent Psychiatry, 37, 1175–1183. doi:10.1097/00004583-199811000-00017 LinkedIn.com. (2008). About us. Retrieved from http:// press.linkedin.com/about McGarrah, N. A., Alvord, M. K., Martin, J. N., & Haldeman, D. (2009). In the public eye: The

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Ethical practice of media psychology. Professional Psychology: Research and Practice, 40, 172–180. doi:10.1037/a0015520 O’Reilly, T., & Milstein, S. (2009). The Twitter book. Sebastopol, CA: O’Reilly Media. Palmiter, D. J., & Renjilian, D. (2003). Clinical web pages: Do they meet expectations? Professional Psychology: Research and Practice, 34, 164–169. doi:10.1037/0735-7028.34.2.164 Pescosolido, B. A., Jensen, P., Martin, J., Perry, B., Olafsdottir, S., & Fettes, D. (2008). Public knowledge and assessment of child mental health problems: Findings from the national stigma study–children. Journal of the American Academy of Child and Adolescent Psychiatry, 47, 339–349. doi:10.1097/ CHI.0b013e318160e3a0 Schank, J. A., & Skovholt, T. M. (1997). Dualrelationship dilemmas of rural and small-community psychologists. Professional Psychology: Research and Practice, 28, 44–49. doi:10.1037/0735-7028.28.1.44 Schonfeld, E. (2009, August 4). Facebook is now the fourth largest site in the world. Retrieved from http://www. techcrunch.com/2009/08/04/facebook-is-now-thefourth-largest-site-in-the-world SFGate. (2009, August 17). Attacks on social networks are on the rise, report says. Retrieved from http://www. sfgate.com/cgibin/blogs/techchron/detail?&entry_ id=45679 Taylor, L., McMinn, M. R., Bufford, R. K., & Chang, K. B. (2010). Psychologists’ attitudes and ethical concerns

regarding the use of social networking web sites. Professional Psychology: Research and Practice, 41, 153–159. doi:10.1037/a0017996 U.S. Census Bureau. (2009). Annual estimates of the resident population by sex and five-year age groups for the United States: April 1, 2000, to July 1, 2008 (NC-EST2008-01). Retrieved from http://www. census.gov/popest/national/asrh/NC-EST2008sa.html U.S. Department of Health and Human Services & Substance Abuse and Mental Health Services Administration. (2003). Understanding children’s mental health. Retrieved from http://www.coloradokids. org/includes/downloads/ntalhealth2003.pdf Wober, M. (1978). Psychologists and the intrusion of broadcast “prygrammes” on personal privacy. Bulletin of the British Psychological Society, 31, 1–2. Weisz, J. R., Sandler, I. N., Durlak, J. A., & Anton, B. S. (2005). Promoting and protecting youth mental health through evidence-based prevention and treatment. American Psychologist, 60, 628–648. doi:10.1037/0003-066X.60.6.628 Woody, R. (1988). Fifty ways to avoid malpractice: A guidebook for mental health professionals. Sarasota, FL: Professional Resource Press. Zur, O., Williams, M. H., Lehavot, K., & Knapp, S. (2009). Psychotherapist self-disclosure and transparency in the Internet age. Professional Psychology: Research and Practice, 40, 22–30. doi:10.1037/ a0014745

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CHAPTER 12

CREATING ETHICAL ACADEMIC CULTURES WITHIN PSYCHOLOGY PROGRAMS Peter A. Keller, J. Dennis Murray, and David S. Hargrove

Act as if what you do makes a difference. It does. —William James This chapter addresses ethics and academic integrity within the broader context of psychologists’ academic roles and responsibilities. Although our discussion is focused on ethics in academic settings, our approach extends beyond the traditional notions of academic integrity or the teaching of ethics to an analysis of the responsibilities of students, faculty, and academic administrators to build positive ethical cultures. In this chapter, we encourage psychologists to consider the impact of their actions on colleagues, academic programs, departments, relationships beyond their departments in the academic setting, and even on the extended communities they serve directly or indirectly. We challenge some of the more traditional notions about academic and professional ethics and emphasize the role of psychologists in creating and supporting positive and sustainable ethical cultures and climates. We start our discussion with a focus on ethical thinking and behavior occurring within the cultural contexts of higher education. Later we highlight the significant challenge of promoting academic integrity, which is an essential subset of ethics for students, faculty, and administrators within academic settings. We also explore other specific ethical concerns encountered in the academy at personal, professional, and systemic levels. We conclude with a framework for psychologists’ self-assessment of ethical practices at various levels within their academic settings.

ETHICS AS A MANIFESTATION OF INSTITUTIONAL CULTURE AND CLIMATE Some definitions and assumptions related to our focus will place the discussion in context. First, we assume that all psychologists are familiar with the fundamental framework for ethical decision making provided by the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010). We rely heavily on these principles to guide our discussion of examples of ethical, questionable, or unethical behavior. Furthermore, we assume that most academic psychologists function within some form of program or department situated within an institution of higher education. This may occur at various levels from community colleges through doctoral or even postdoctoral study. Of course, the missions of institutions as well as the programs or departments within them differ dramatically. However, we assume that each program or department, which represents the primary unit of our analysis, may be characterized by both a culture and a related climate. For consistency throughout the chapter, we will refer to departments even though we understand that a small program with five faculty instructing 50 student majors may differ substantially from a department of 75 faculty instructing more than a thousand majors as may be found at some larger

DOI: 10.1037/13272-012 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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universities. For our purposes we will assume that each has certain characteristics related to its mission and goals, faculty, students, and leadership, as well as the larger organizational context. Schein (2004) has described the importance of understanding the culture of an organization. He noted that culture is both a dynamic phenomenon that surrounds us at all times, being constantly enacted and created by our intentions with others and shaped by leadership behavior, and a set of structures, routines, rules, and norms that guide and constrain behavior. (p. 1) His understanding of culture includes such dimensions as the formal philosophies of an organization, the “observed behavioral regularities” (p. 12) when people interact, and the standards and values that emerge in groups, as well as the persistent habits of thinking and behavior that characterize a setting. For example, if we function in an academic department culture that emphasizes responsible and trustworthy behavior, and colleagues in positions of authority consistently act in accord with such values, we too are more likely to act in trustworthy ways and assume that others will do so as well. By contrast, if we are associated with a department in which expectations for respectful or responsible behavior are lax or inconsistent or where trust in others to act with integrity is low, we ourselves may lose perspective on acting responsibly. Moreover, if individuals within a program emphasize self-interest over shared interests and social responsibility within the unit, we may take certain cues from them without sufficient reflection on the potential impact on colleagues and students. According to Ostroff, Kinicki, and Tamkins (2003), cultures help define why things happen in an organization and are related to employees’ basic assumptions about their work environment, which may be defined by organizational histories as well as by explicit missions and values. By contrast, they defined the climate as “the what of the culture” that emerges from the “espoused values and shared tacit assumptions and reflects the surface organizational experience based on policies, practices, and procedures” (Ostroff et al., 220

2003, p. 566). Put differently, these authors asserted that the climate emerges from the context of the culture and represents the ways in which individuals experience an organization. They also describe the important interrelationship between the values and social cognitive processes of individuals within an organization and at the aggregate level. This interrelationship is influenced by the broader context of the institution as well as the organizational culture, structure and processes, climate, collective attitudes, and behaviors that all contribute to various outcomes, behaviors, and individual experiences of the organization. Whether identified formally or not, we argue that each department has a culture and a climate that influence ethical behavior. The culture is defined by formal expectations, such as in a mission or values statement that may be linked to the Ethics Code. The climate is created on the basis of individuals’ experience of the interrelationships, openness of members to speaking candidly about the nature and quality of the relationships, mutual responsibilities, and other ethical matters, as well as the ways ethics are learned and practiced. Although most psychologists in academic settings generally are aware of the Ethics Code, we believe it would be a mistake to assume that just because a code defines ethical expectations, all individuals within a department consistently demonstrate sensitivity to ethical issues and act accordingly. Treviño and Brown (2004) emphasized the ethical complexity of organizations and observed that ethical behavior is in many ways a consequence of the context in which individuals function. They have suggested the importance of creating a strong ethical culture in which leaders emphasize ethical standards and reward ethical actions. The ways in which formal leaders within an institution model ethics also are important in ensuring ethical behavior. They also emphasized “aligning the multiple formal and informal cultural systems in support of doing the right thing” (Treviño & Brown, 2004, p. 80). Kish-Gephart, Harrison, and Treviño (2010) described a meta-analysis that measured the relationships among (a) individual characteristics, (b) moral issue characteristics, and (c) organizational environment characteristics and the outcomes of unethical intentions and behaviors. They

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concluded that organizational environmental characteristics had an impact on ethical behavior. A strong ethical culture that emphasizes acceptable and unacceptable behaviors is associated with less unethical behavior. Having an ethics code in place did not seem to ensure ethical behavior unless it was accompanied by a culture that clarified ethical and unethical behaviors. For our purposes, culture and climate can be further understood in terms of whether ethics is viewed by members of a department from a rulecentered or remedial perspective, in contrast to a stance of positive ethics as described by Handelsman, Knapp, and Gottlieb (2002, 2009) and Knapp and VandeCreek (2006). Many approaches to teaching ethics traditionally have been based on a regulatory model that faculty and students alike may experience as intimidating and that contributes to a negative climate. For example, participants in such a situation may find themselves on edge waiting for the proverbial “other shoe” to drop as a consequence of some error in judgment, an ethical lapse related to a failure to understand the Ethics Code sufficiently, or perhaps a misinterpretation of the laws or regulations that control research or professional practice. Similar to positive psychology (Lopez & Snyder, 2009; Snyder & Lopez, 2002), which has emerged in recent years as a framework for conceptualizing human behavior, positive ethics is based on the notion that ethics can best be learned within a culture and climate that promote shared learning about ethics as an integral part of professional development and collaborative responsibility for encouraging appropriate behavior. In contrast to a regulatory approach that defines the minimum expectations for ethical behavior, positive ethics promotes a striving for excellence in ethical behavior while recognizing that even the best-prepared students and faculty make decisions or engage in behaviors that on deeper reflection they would not choose to repeat. Kidder (1995, 2009) has emphasized that ethical dilemmas often involve a conflict between competing principles or values, both of which are arguably right. Consider, for example, the situation in which an instructor of psychology must decide whether to inform university authorities about a student who

she or he suspects may be at risk. If the student asked to speak to the instructor in confidence and then revealed chilling details about her assault by another student who she still encounters nearly every day, there may seem to be conflicting duties to respect the student’s privacy, as she assumed she was speaking in confidence, and to the student’s continuing welfare as well as the safety of the larger community. Or perhaps a student reveals to her academic advisor credible evidence that another student has obtained a copy of an important examination that was stolen but then expresses an unwillingness to speak further about the matter. Beyond recognizing the fundamental framework that the Ethics Code provides for psychologists, we assume that ethics involves a developmental or acculturation process (Gottlieb, Handelsman, & Knapp, 2008) that starts even before psychologists initiate their academic studies in the discipline and continues throughout their careers. Ideally, this process includes a continuing focus on the ways in which psychologists assess and act on the ethical implications of their interactions with others— colleagues, students, clients, as well as those in the work groups or communities of which they are a part. Furthermore, it includes or at least implies a responsibility to assume leadership roles that encourage others to act in accord with the ethical principles. Finally, ethics development is more powerful when it is focused on a positive sense of doing “good work” (Berg, Csikszentmihalyi, & Nakamura, 2003; Gardner, 2007) that transforms the cultures of which we are a part so that they encourage others to act in accord with the principles that underlie our varied discipline-related professional and ethical commitments. We discuss the concept of good work later in the chapter (see the section Forces That Affect Good Work later in this chapter). In addition to the principles that should guide ethical decision making, we view the foundational work of ethics as building and sustaining cultures and climates that shape and support psychologists’ ethical work across all of the academic and professional domains in which they act. Kitchener (1992) proposed that psychologists should view ethics as part of a process that occurs beyond the formal curriculum in terms of how psychologists act ethically 221

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in their relationships with their students and how they address situations in which students my act unethically or unprofessionally. Moreover, it is important for academic psychologists to understand the ethics of the larger context in which they function. The moral failure of a series of our social, economic, and academic institutions, which rapidly became apparent to nearly everyone beginning around 2008, has made this a particularly appropriate point to reflect on the ethical foundations of our academic settings. Gottlieb et al. (2008) have described ethics education as a life-long process. If ethical decision making were as simple as identifying right from wrong, selecting what is clearly right on the basis of principles or a code, and then acting on that decision, academic and professional lives might be relatively simple and free of moral ambiguity. However, living an ethical academic or personal life clearly involves much more than learning and applying a set of principles and codified rules. Experience teaches us that the complexity of ethical decision making requires not just principles and standards but also excellent role models, wisdom regarding ethical issues, practice based on experience, and strong collegial support to act responsibly. If we are to succeed in developing the moral responsibilities of members of an academic community, we need a framework to establish common ground for the development of ethical understanding, judgment, and action. Rest (1982, 1994) has described one useful model. On the basis of extensive research regarding the components of moral judgment and action, he proposed that acting ethically is based on at least four components. The first component, moral sensitivity, requires an individual to be aware that he or she faces an issue with moral implications. Rest defined moral sensitivity as “the awareness of how our actions affect other people” (1994, p. 23). In the absence of this awareness, there might not even be an inclination to reflect on the ethical relevance of a decision. Situations that elicit high levels of emotion, for example, those in which interpersonal distrust or conflict are involved, would be particularly susceptible to failures to recognize a potential ethical impact. We discuss this in more detail later in the chapter. 222

Rest’s (1994) second component, moral judgment, involves a process of deciding which actions would be morally appropriate. An ethics code or organizational creed may or may not be helpful in making a decision, depending on the particular code, its specificity, and the complexity of the circumstances. For psychology faculty and students, the Ethics Code plays an essential role in this regard, but it is not sufficient to ensure development of positive ethical cultures and climates without additional components. Rest’s (1994) third component, moral motivation, is a function of the moral value that an individual attributes to a matter relative to other values or goals. For example, a student who is strongly determined to achieve academically to attain a particular career goal might attribute lower moral value to issues related to certain forms of academic dishonesty. Finally, Rest (1994) labeled his fourth component moral character, which consists of a combination of persistence or stamina, courage, and the set of skills needed to follow through on an ethical decision. Even if someone understands the content of the Ethics Code, we would observe that it is not unusual to sidestep the challenges required to act on ethical judgments for fear of other consequences, such as the threat of being isolated from one’s primary social group. Viewed from this perspective, ethical analyses and related actions require a complex sensitivity to moral matters, a commitment to identifying an ethical response on the basis of appropriate principles, and the capacity to follow through in even challenging situations so that matters may be brought to closure in ways that are consistent with one’s ethical principles. These aspects of ethical decision making and action all are affected by the culture and climate of the university and the academic department with which one is associated. Kidder (2005) also introduced the concept of moral courage, which emphasizes that taking action based on ethical principles is dependent on an analysis of risk or danger and one’s willingness to endure the consequences of taking the appropriate action. Later in this chapter, we note other systemic influences on a person’s ethical sensitivity and reactions. Johnson (2009) has observed that the development of moral character is associated with one’s role

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models and cited the work of Kart (1992), who distinguished between moral episodes and moral processes. If life involved a series of discrete moral episodes, it might be sufficient to consult a code or standard as one responded to a particular situation. Writing about institutional culture and ethics in higher education, Smith and Reynolds (1990) observed that “ethical reflection becomes powerful as an administrative resource when we think of the ethical dimension of complex issues rather than of narrow and isolated ‘ethical’ problems” (p. 24). We would agree and also note that many of the interactions within our own academic departments have at times been complex and encompassed ethical dimensions that were not clearly delineated. On occasion, there have been particular instances of blatantly poor ethical judgment on the part of students, faculty, or formal leaders; more frequently, however, we encounter daily decisions and problems in communication that have some sort of ethical dimension that may not be fully identified for lack of the ethical sensitivity to which Rest (1982, 1994) referred. Consider, for example, the seemingly straightforward decisions that a department chair must make in preparing the teaching schedules for an upcoming semester. How does the chairperson balance the interests of the program, the students who require courses so that they can progress at the appropriate pace within the curriculum, the interests of faculty who have a variety of commitments that may or may not be directly related to the academic objectives of the department, and the expectations of a dean who may have asked the chairperson to reduce the number of course sections, or move a low-enrollment graduate seminar from one semester or year to another because of budgetary restraints, or change a preferred faculty practice to schedule courses differently so that the department may better meet the needs of students? Each constituency within an academic setting has a particular interest that may or may not be valid when considered in relation to the interests of a program in fulfilling its mission with integrity. However, because it is common for individuals to respond first based on self-interest rather than valid programmatic interests or consideration for the others, mistrust that leads to conflict with others may

emerge. Individuals who regularly reflect on the ethical challenges they face, share their analyses with others, and seek feedback relative to a shared set of principles that are consistent with a department’s mission and values can provide role models for others in reference to ethical decision making and the development of a positive ethical culture. Most of us operate on the assumption that we or the groups of individuals with whom we are associated usually would act ethically. In his work on groupthink, Janis (1982) observed that one of the eight characteristics of cohesive groups is the tendency to assume the “inherent morality of the group.” Also referred to as “the illusion of morality,” this inclination ironically may interfere with the willingness of either groups or individual members to test assumptions about the morality of their own thinking and actions. If most members of a group operate under the assumption that they would only act in moral ways, they would have little interest in reflecting more deeply on the moral dimensions of their behavior. The outcome might only be discomforting, while maintaining an illusion of morality generally is reassuring. Writing about academic settings in particular, Smith and Reynolds (1990) suggested that “many dilemmas arise not from individual bad intentions or judgment, but out of the complexity of our organizations and the competing claims of those affected by major decisions” (p. 23). Their perspective emphasizes the challenge of acting within the context of academic departments and institutions and the importance of establishing a culture that emphasizes trust based on an understanding of individual commitment to thinking ethically and communicating clearly about decisions. Moreover, even with the best of intentions, there is opportunity for some form of harm, either considered or unintended, as an outcome to a decision made by faculty or administrators. ETHICAL RESPONSIBILITIES OF ACADEMIC PSYCHOLOGISTS: ALIGNING PRINCIPLES WITH THE REALITY OF INSTITUTIONAL SETTINGS In their text on ethics in higher education, Rocheleau and Speck (2007) described a propensity for 223

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individuals and groups of various political persuasions to separate education and morality. For example, they have suggested that politically liberal thinking tends to value the autonomy of faculty in academic settings, while some conservatives distrust the broadminded ethical values they suspect liberals might promote within the college classroom. Some advocates of academic freedom also are inclined to look past the responsibilities that are required to accomplish the good work of an academic institution, but Rocheleau and Speck (2007) have argued that “to view academic freedom and ethics as incompatible is to misunderstand both” (p. vii). As they pointed out, academic freedom relates primarily to one’s freedom of inquiry but should not be taken to mean that faculty have no responsibilities to one another or to their students and the departments and institutions that they serve. We concur with their premise that the academic enterprise is best served if principles of responsibility “are understood, respected, and promoted” (Rocheleau & Speck, 2007, p. ix). Achieving such objectives has the potential for creating a positive ethical foundation for the good work that should occur in a department or institution. That leaves the questions of precisely what principles of responsibility should apply, and how they might be promoted effectively within a department, college, or university. We discuss the complementary aspects of academic freedom and responsibility in more detail later in this section. Reynolds and Smith (1990) proposed a set of academic principles of responsibility1 based in part on the work of the scientific society Sigma Xi contained in a publication titled Honor in Science (Jackson, 1984, cited in Reynolds & Smith, 1990), as well as other professional organizations. Their principles of responsibility fall into five domains: personal, professional, systemic, public, and political. They intended for the principles to guide the conduct of individuals and administrative units within academic settings. We find considerable wisdom within their principles and believe that faculty, students, staff, and departments as a whole would function more effectively and more ethically if they genuinely attempted to act in accord with them. We will summarize Reynolds 1

and Smith’s (1990) expectations for the first three categories of responsibility—personal, professional, and systemic—and discuss them in relation to the principles of the Ethics Code, keeping in mind that the principles are aspirational rather than regulatory. In this regard, when we refer to the responsibilities, we are describing ethical ideals rather than enforceable behaviors unless there is a standard within the Ethics Code that sets a specific requirement.

Personal Responsibilities Reynolds and Smith (1990) proposed that at the personal level everyone in an academic community has responsibilities to 1.1 demonstrate a respect for each person as an individual 1.2 communicate honestly and truthfully with all persons 1.3 enhance the self-esteem of other persons 1.4 help build fair and compassionate social and cultural systems that promote the common good of all persons. (p. 37) In a general sense, these responsibilities align closely with the notions of beneficence and nonmaleficence that constitute the first of five principles within the Ethics Code. Beneficence refers to striving to benefit those with whom psychologists work at the same time that care is taken to do no harm to others (paraphrased closely from APA, 2010, p. 3). Although, at first glance, some might take this to address one’s duties in reference to formal clients, there is every reason to believe that this responsibility also refers to obligations in relation to colleagues, department staff, students, and others with whom an academic psychologist comes into contact. Reynolds and Smith extend this to a responsibility to respect and actually enhance the self-esteem of others. Within both the APA principles and implicit in the comments of Reynolds and Smith (1990) is an obligation to resolve conflicts in ways that avoid or minimize harm. These principles set a reasonably

Included in this chapter with permission of the American Council on Education.

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high bar for psychologists in terms of striving to maintain positive rather than confrontational or negative relationships with colleagues and students. In a sense, each contact with others individually or within a group, including meetings with students or colleagues and instructional activities in the classroom or laboratory, has a potential outcome that is for better or for worse in terms of both the relationship and other individuals’ sense of self-efficacy. This does not mean that difficult or sensitive issues should be avoided, but rather that there is a responsibility to communicate respectfully and with the personal and developmental needs of others in mind. Included in this responsibility would be an expectation that academic psychologists strive to build and use a set of positive social skills to enhance their communications with others. Put differently, the quality of our interactions with others in academic settings matters, and we share a personal responsibility to establish and maintain a positive climate in our departments and our classrooms. In situations in which conflict emerges because of misunderstanding, we have an obligation to seek a constructive resolution and not let resentment or anger fester. Thus, a shared responsibility for promoting beneficence and nonmaleficence includes the fundamental concerns of fostering a culture and climate of positive ethics that supports learning, research, service, and the other appropriate academic work of an institution. Reynolds and Smith (1990) identified the responsibility to “communicate honestly and truthfully,” while Principle B, Fidelity and Responsibility, of the Ethics Code notes that “psychologists establish relationships of trust with those with whom they work.” Trust is related to credibility and is formed on the basis of assuming appropriate responsibilities in the eyes of others, acting with competence, and consistently meeting commitments to others (cf. Covey, 2009; Kouzes & Posner, 2003). Principle C, Integrity, of the Ethics Code emphasizes integrity in terms of psychologists seeking to “promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology,” as well as keeping promises and avoiding commitments to others that may not be clear or wise. These responsibilities are fundamental to establishing

credible and trustworthy relationships with colleagues and students alike. Honesty, accuracy, truth telling, and the establishment of trust are also essential in maintaining functional academic settings and are at the foundation of both scientific research and the teaching of psychology. Yet, as we observe elsewhere in this chapter, there is substantial concern about the integrity of academic work and communication at many levels. This leads naturally to the questions of how far such a duty extends, and what specific steps academic psychologists and students should take to ensure accuracy, honesty, and truthfulness. Although few individuals might describe themselves as dishonest, we know that maintaining high levels of integrity is a significant challenge in academia. We would argue that losing one’s integrity is a slippery slope easily accessed in academic settings, even if unintentionally, and that maintaining integrity requires the support of a strong culture and climate focused on ethical principles and responsibilities. Often, when individuals have lost the trust of others, they are not even aware that a breach has occurred. One of the complexities of academic settings is the apparent ease with which individuals can disengage from their interpersonal and academic obligations without noting specific consequences. Available evidence on academic integrity (Bertram Gallant, 2008; Whitley & Keith-Spiegel, 2002) would also suggest that traditional models for promoting integrity mainly on the basis of compliance strategies have not been particularly successful. Maintaining trust and integrity requires active engagement in relationships with others that offer clear feedback about perceptions of each other before conflict emerges or even spirals out of control. Reynolds and Smith’s (1990) fourth personal responsibility “to help build fair and compassionate social and cultural systems that promote the common good of all persons” (p. 37, italics added) suggests a duty that all members of an academic community have to share leadership in building both a culture and a climate that enhances the lives of students, colleagues, and staff as well as others with whom we may come in contact. The role of helping implies that each may contribute in ways that are appropriate to their roles and skills within a 225

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department and also recognizes that people in academic settings share a responsibility for the quality of the ethical climate. This responsibility also is reflected in Principle B of the Ethics Code, which notes that psychologists “are aware of their professional and scientific responsibilities to society and to the specific communities in which they work.” Principle B likewise recognizes the potential for conflict among “psychologists’ responsibilities or concerns” and a responsibility to resolve conflicts in ways that minimize harm. We believe that both of these perspectives on responsibility require academic psychologists to recognize the nature of their interdependencies, move toward transparency in their dealings with others, and seek consultation from colleagues when they find themselves in the midst of conflicting demands. This sets an expectation for openness that does not characterize the climate of all academic departments but that provides an opportunity for building more trustworthy settings. We have observed academic departments in which relationships are fractured to the point at which members of the department cannot feel even minimally comfortable sitting in a room with each other. In such situations, important conversations about the current status or future of the department are avoided, and differences are likely to spill into the classroom and even affect faculty relationships with students. Faculty may file complaints about each other or even involve their attorneys in such conflict. When department leaders do not feel able to resolve differences or get members to treat each other with respect, we believe it is important to seek the intervention of a skilled administrator, such as the appropriate dean, who is trusted by the faculty and has the skills required to resolve conflicts. In cases in which this is not possible, it is wise to seek the intervention of an external consultant skilled in team building and conflict resolution. Faculty and administrators have a responsibility not to let conflict spiral out of control because of the many negative consequences for all constituencies. The autonomy accorded faculty in traditional academic settings provides considerable opportunity for them to set their own agendas and, at times, ignore the changing expectations of an institution. The principles of academic freedom allow 226

faculty considerable latitude to teach their subject matter as they wish, speak their own minds, and pursue their research and service activities with relatively little oversight. That freedom, however, usually is counterbalanced by programmatic and institutional interests in remaining focused on certain education goals that vary across departments and universities. When autonomy predominates and a faculty member begins not to meet his or her professional responsibilities, one must ask how colleagues remind each other of reasonable expectations to each other, students, and the discipline. It is important that within a climate that aspires to collegiality and positive ethics, opportunities are created for faculty and students to discuss their common goals, values, and expectations for mutual respect. Indeed, doing so seems to be an essential part of personal and professional responsibilities that sometimes fade in an academic setting. Later in the chapter we suggest ways in which departments and individual faculty may address these needs when colleagues drift apart or fail to be accountable to each other and to reasonable institutional expectations.

Professional Responsibilities Reynolds and Smith (1990) identified five responsibilities under the category of professional principles associated with college or university roles. These include the following: responsibilities to 2.1 assist their institution to fulfill its educational mission 2.2 strive to enhance the personal and intellectual development of other persons 2.3 be compassionate, thorough, and fair in assessing the performance of students and professional associates 2.4 exercise the authority of their office in ways that respect persons and avoid abuse of power 2.5 conduct their professional activities in ways that uphold or surpass the ideals of virtue and competence. (p. 37)

Creating Ethical Academic Cultures

Academic psychologists function in an era of increased demands for accountability relative to the educational mission of their institutions. Expectations for clarifying the mission at all levels of an institution and identifying program goals, learning objectives, and learning outcomes that are assessed have intensified. Institutional cultures that once seemed flexible now expect a growing set of responsibilities for department chairs, faculty, and students. Institutional and program level accreditors have increasingly emphasized the importance of curricular and resource alignment with institutional and program mission and strategic goals. Department chairs and faculty now are asked routinely to define and assess student learning outcomes that are aligned with the university and department mission and goals. New attention is being given not only to course content but also to alignment of content and measured student learning outcomes. Annual reports and periodic program reviews may drill down to the level of course syllabi and documented measures of student learning that are expected to meet accreditor expectations. Syllabi are more likely to be viewed as a contract between an academic program, the course instructor, and students. With greater frequency, students and even their families question university or faculty practices in addressing students’ needs. Faculty accustomed to considerable autonomy in the management of their courses experience new burdens regarding compliance with institutional, accreditor, and even legal or regulatory (e.g., Family Educational Rights and Privacy Regulations, 1974; or Americans With Disabilities Act, 1990) expectations for the fulfillment of various aspects of an institution’s educational mission. The rising tide of expectations for instruction generally, the transition from a teaching to a learning paradigm in higher education (Barr & Tagg, 1995; Tagg, 2003), and the focus on measurement of clearly defined learning outcomes that are in alignment with program mission and goals challenge the foundations of traditional lecture-based approaches to instruction. APA Guidelines for the Undergraduate Psychology Major (APA, 2007) describes learning goals and outcomes intended to inform curriculum design and instruction and serve as the basis for assessing student learning. At the graduate level, the

APA Board of Educational Affairs Assessment of Competency Benchmarks Work Group (2007) has proposed a developmental model for defining and measuring competence in professional psychology. The work of this group is part of an ongoing movement to define and assess professional competencies of psychology graduate students. A long-standing emphasis on faculty autonomy is being replaced by a higher order expectation of precision, accountability, and continuous program improvement. Faculty at all levels of higher education are expected to assume new responsibilities for student learning and to collaborate with their colleagues in assessing outcomes and improving curriculum as well as instructional methods. Thus, there are professional responsibilities for the integrity of academic programs and for the promotion of student learning that were not so clear just a decade ago. The new expectations associated with a learning paradigm would seem to give new meaning to the interpretation of Principle C, Integrity, of the Ethics Code: Faculty are expected to be more precise in how they describe their courses and the anticipated learning outcomes. Moreover, emerging research on how students learn (e.g., Bransford, Brown, & Cocking, 1999; Halpern, 2009; Halpern & Hakel, 2003) raises the expectation for faculty to bring their teaching and learning practices into alignment with the current state of scientific understanding about learning. Faculty assessment of student learning must align with objectives established for the course, and instructors have another form of accountability if students do not demonstrate learning. There are also complementary expectations for students when clear learning outcomes are defined, but faculty bear the primary burden for designing courses that fulfill a program’s educational mission and respect an evidence-based science of learning. Section 7, Education and Training, of the Ethics Code provides explicit guidance in reference to several of these points. For example, Standard 7.01, Design of Education and Training Programs, states that psychologists responsible for education and training programs take reasonable steps to ensure that the programs are designed to provide the appropriate 227

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knowledge and proper experiences, and to meet the requirements for licensure, certification, or other goals for which claims are made by the program. (p. 10) This item indicates that psychologists have a “reasonable” responsibility for both learning experiences and the attainment of goals associated with a course. It speaks to the design of learning experiences as well as the outcomes. Ethics Code Standards 7.02 and 7.03 address in some detail the description of education and training programs and accuracy in teaching. Standard 7.02, Description of Education and Training Programs, states that psychologists . . . take reasonable steps to ensure that there is a current and accurate description of the program content (including participation in required course- or program-related counseling, psychotherapy, experiential groups, consulting projects, or community service), training goals and objectives, stipends and benefits, and requirements that must be met for satisfactory completion of the program. (p. 10) Standard 7.03, Accuracy in Teaching, also notes that (a) Psychologists take reasonable steps to ensure that course syllabi are accurate regarding the subject matter to be covered, bases for evaluating progress, and the nature of course experiences. This standard does not preclude an instructor from modifying course content or requirements when the instructor considers it pedagogically necessary or desirable, so long as students are made aware of these modifications in a manner that enables them to fulfill course requirements. (p. 10) Both of these standards set an expectation for reasonable accuracy in an instructor’s description of the course and alignment of its delivery with the expectations. These standards also apply to continuing professional education for psychologists. 228

Syllabi have become a growing focus of attention as an entry point for academic courses. Some institutions set expectations for the content of course syllabi, and our anecdotal observations suggest that faculty vary widely in the attention given to course syllabi. For some, it is a challenge to structure the syllabus within a single page of essential information, while for others syllabi may include extraordinary detail. We agree that the syllabus represents a form of contract between instructor and students. As Rocheleau and Speck (2007) wrote, A syllabus can be viewed as a contract between the professor and the students. Students have a right to know what work a course will involve when they sign up for it. Accurate descriptions of assignments and grading standards in the syllabus are required to make student consent to take the course valid. (pp. 83–84) Moreover, Standard 7.06, Assessing Student and Supervisee Performance, states, (a) In academic and supervisory relationships, psychologists establish a timely and specific process for providing feedback to students and supervisees. Information regarding the process is provided to the student at the beginning of supervision. (b) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements. (p. 10) Academic psychologists have a responsibility to communicate clearly with students and supervisees about the expectations and standards for grading. It is in large part for this reason that rubrics to guide the evaluation process have become more common. Commitments of the faculty member to the course and the assignments, examinations, and learning expected of the students should be clear. Along with the critical discussions that should occur with the first class of each course, the syllabus represents an opportunity to set a positive, ethical, and learning-centered culture and climate for the classroom. In the event that a student challenges the outcome of a course, for example, a failing grade, on the

Creating Ethical Academic Cultures

basis of expectations that an instructor neglected to specify, the faculty member might reasonably be called to task by a department chair, dean, or hearing board for failure to set clear standards for success.

Systemic Responsibilities Reynolds and Smith (1990) also noted that colleges and universities have systemic responsibilities to 3.1 be fair, keep agreements and promises, operate within the framework of the law, and extend due process to all persons 3.2 strive for an efficient and effective management that enables the institution to adapt to new opportunities 3.3 be compassionate and humane in all relationships while protecting the safety of persons and property 3.4 articulate their missions in ways that reflect their actual strengths and aspirations 3.5 foster policies that build a community of racial and socioeconomic diversity 3.6 assist members in their professional development while requiring competent performance from everyone 3.7 support an internal polity that fosters and protects academic freedom. (pp. 37–38) Although individual faculty may argue that they do not function at a systemic level, we would suggest that faculty in concert with the formal academic leadership of an institution share a responsibility for promoting and sustaining the ethical integrity of a college or university across a range of daily activities. Moreover, there is close alignment between systemic responsibilities and the personal and professional responsibilities proposed by Reynolds and Smith (1990). Systemic climates depend on the ethical behavior of individual faculty and students in the classroom, at the department level during different meetings, and through the varied functions of shared governance that characterize most North American institutions of higher education.

The principles of the Ethics Code are also in close alignment with the systemic responsibilities that Reynolds and Smith (1990) have identified. For example, Principle B, Fidelity and Responsibility, notes that “psychologists establish relationships of trust with those with whom they work. They are aware of their professional and scientific responsibilities to society and to the specific communities in which they work.” This principle clearly emphasizes the role of psychologists in a more systemic context. Principle C, Integrity, includes an expectation that “psychologists strive to keep their promises and to avoid unwise or unclear commitments,” which is in alignment with the responsibilities described in Reynolds and Smith (1990) item 3.1. Reynolds and Smith (1990) item 3.2 refers to “efficient and effective management that enables the institution to adapt to new opportunities” (p. 37). Many faculty might find this responsibility disquieting, while psychologists in formal positions of university leadership will find this responsibility familiar but perhaps still uncomfortable. Although the Ethics Code does not speak directly to such an expectation of academic psychologists in management positions, it is clear that colleges and universities often go through periods of change or realignment. The change may be driven by a shift in leadership, mission, financial challenges, or some combination of these factors. At times, programs and even positions may be phased out of existence as new programs emerge or resources are conserved to protect the institution. Faculty sometimes argue that it is unethical for a manager to close an academic program, reassign them to another role, or even retrench them. From the perspective of a university provost, dean, or department chairperson, it may seem appropriate to make such adjustments if they are in the compelling interest of the department, school, or institution because of limited resources that at times must be conserved or redistributed in accord with the established mission and goals to achieve a stronger future for the common good. At the individual level, it often is difficult to perceive a common good when one’s personal or professional life is disrupted in ways that are experienced as maleficent. Kidder (2009) might frame this as an ethical dilemma that casts the rights of an individual or 229

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group of individuals, which may include faculty, students, and even alumni, against the rights and interests of the larger community of individuals who make up the university or some subset of the institution. Within the Ethics Code one might consider this from several perspectives, including Principle A, Beneficence and Nonmaleficence, and Principle E, Respect for People’s Rights and Dignity. In the first instance, one must ask who benefits, and do they benefit sufficiently to take an institutional action such as closing a program? Furthermore, the decision and subsequent action should be approached in ways that are fair, transparent, and cause the least harm possible to faculty, students, or others. This approach would include making arrangements for students to complete programs in which they are currently enrolled within a reasonable period of time. The academic manager has a responsibility to do everything reasonable to respect the rights and dignity of the faculty and students affected, even if those individuals act in ways that seem uncivil in the midst of the change process. Peter A. Keller, in his role as provost of a public university, had the very difficult task of recommending the closure of several degree programs that had low course enrollments and graduated on average very few students each year. We can attest that it is challenging to maintain a climate of positive ethics in the emotional atmosphere surrounding institutional change that has a negative impact on some individuals. Acting with compassion and being humane in relationships under such circumstances is important, but compassion alone cannot sustain the future of an institution, and academic leaders have ethical responsibilities to the larger community that constitutes a university as well as to individual rights, including academic freedom. Reynolds and Smith (1990) also noted the systemic responsibilities of universities to “articulate their missions in ways that reflect their actual strengths and aspirations” (p. 38). This is not dissimilar from the expectations of Standard 2 within the Ethics Code, which is focused on various aspects of competence. For example, Standard 2.01(a), Boundaries of Competence, notes that “psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries 230

of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.” Furthermore, 2.01(c) indicates that “psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake relevant education, training, supervised experience, consultation, or study.” This portion of the standard recognizes the opportunity that psychologists have for expansion of their professional and academic expertise but emphasizes the concomitant responsibility to prepare for their new roles. Section 7 of the Ethics Code, Education and Training, also clarifies the importance of integrity in both the design and description of academic programs. We have observed what we would describe as a natural inclination of colleges and universities to, at times, overreach their mission and capabilities to aspire to new roles or greater recognition or to attract more students so that they can remain competitive with other institutions. We live in a rapidly changing world in which individual and institutional competencies need to grow and adapt to emerging knowledge and academic or professional skills. It has been observed that the institution that is not moving ahead is falling behind because of the competitive environment of higher education and the rapid pace at which scientific knowledge and professional and academic skills change. At the same time, all members of an academic department or institution share a duty to recognize the appropriate boundaries of their mission and capabilities and to fulfill their legitimate roles as responsibly and competently as they possibly can, while moving forward in alignment with an appropriate university and department mission. Reynolds and Smith (1990) also described a responsibility to “foster policies that build a community of racial and socioeconomic diversity” (p. 38). This responsibility is reflected clearly in Ethics Code, Principle E, which emphasizes respect for people’s rights and dignity, as well in Principle D, Justice, which states that “Psychologists recognize that fairness and justice entitle all persons to access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists.” Standard 3.01, Unfair Discrimination, of the Ethics

Creating Ethical Academic Cultures

Code further emphasizes the avoidance of “unfair discrimination based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law.” It is not a far reach at all to suggest that psychologists share a responsibility to help build a university community of racial and socioeconomic diversity. Ethical sensitivity and actions related to these responsibilities should affect psychologists’ behaviors in the design of academic programs and courses, the development and implementation of hiring practices that affect the tenure and promotion of colleagues, interactions with colleagues generally, and relationships with students at all levels. Academic psychologists also have an opportunity to address issues of diversity, equity, and social justice in the curriculum and to provide positive learning experiences in which students can confront these issues. Faculty should model awareness, understanding, and inquiry built on scientific and professional knowledge and be skilled at helping students navigate the emotional reactions that often arise in the process. These learning activities should be built on principles of fairness, social justice, and equitable treatment of all humans, while encouraging an appreciation of the value of diversity in society and the unique experience and worth of each person. Faculty have an obligation to personally explore these issues and should seek educational activities in which they can examine their own experiences, identities, and biases and acquire scientifically sound information. They should be prepared to acknowledge and sensitively respond to the anxiety and self-consciousness that often arises when students address these topics. Students, like others in our society, often lack the skills to openly communicate about these issues and may fear the emotions that can arise in themselves or others. Psychology faculty should be well suited to understanding these concerns and to providing a safe environment for students to address these issues in an educationally beneficial manner. (More information on diversity can be found in Volume 1, Chapter 8, this handbook.) At the systemic level, Reynolds and Smith (1990) also recognized a responsibility of academics to

“assist members in their professional development while requiring competent performance from everyone” (p. 38). We believe that there are significant responsibilities at the institutional and department levels of a university to provide sufficient attention to the continuing professional development of colleagues as well as students. The principles of beneficence and nonmaleficence, in particular, speak to the ways in which we structure our departments, as well as our performance review, tenure, and promotion policies and processes. We have a responsibility to be sensitive to the needs of faculty at various stages of their careers and to assist them in understanding and navigating the expectations of the department and institutional cultures. The tenure and promotion practices of a university as they are recognized and implemented at institutional and department levels tend to generate a fair amount of anxiety among faculty as they move through various stages of their academic careers. A part of that anxiety may be unavoidable, particularly as younger faculty attempt to distribute their efforts across instructional, scholarly, or service activities. Depending on the culture and climate of a particular institution, there may, at some points, seem never to be sufficient time, resources, or skills to meet fully all of the performance expectations. We are aware of some academic cultures and climates that generate high levels of anxiety for younger faculty concerning performance expectations, and others that are lax in providing appropriate and constructive feedback to colleagues, leaving newer members of a department adrift as they try to discern expectations that are vaguely defined. Neither extreme is appropriate. We believe that departments should define with clarity and act in accord with appropriate processes that respect the need for professional growth among colleagues and also ensure the integrity of performance review processes. There always may be a certain degree of inexactitude associated with standards for promotion and tenure, but that does not absolve a department from striving to define expectations in ways that are understandable. However, it seems important that department chairs and faculty guard against climates that generate unnecessary anxiety because of lack of clarity or insufficient communication. It is important that performance reviews be conducted in a manner 231

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that is both realistic about their expectations and sensitive to the developmental needs of colleagues. Some departments are characterized by an unfortunately lax climate in which colleagues rarely receive sufficient or improvement-oriented feedback. Faculty undergoing reviews may have too little information about expectations and could be vulnerable to either over- or underestimating expectations. It is easy for senior colleagues who have survived the various review processes to lose sensitivity for the developmental needs of newer colleagues. Furthermore, departments need to define and maintain expectations for professional development over the full life span of faculty professional careers. There clearly can be a negative impact for students and colleagues when faculty lose sight of responsibility for continuing professional development once they have achieved their goals for tenure and promotion or toward the ends of their academic careers. Reynolds and Smith (1990) described a responsibility to “support an internal polity that fosters and protects academic freedom” (p. 38). Academic freedom has long been recognized as an important foundation of U.S. higher education because it protects the rights of faculty in several important domains, such as freedom (a) in research and publication, (b) in addressing controversial matters related to the subject of their courses in the classroom, and (c) from censorship or discipline by an institution when they express themselves as citizens (American Association of University Professors [AAUP], 1940). These principles clarify the constitutional rights of free speech in reference to the roles of university faculty and provide some protection from capricious restrictions that university administrators or politicians might attempt to place on faculty. Subsequent to their 1940 statement on academic freedom, the AAUP (1987) adopted a second statement on professional ethics that also recognized certain responsibilities of the professoriate, including those to their colleagues and students. The AAUP statement is brief and far less developed than the Ethics Code, although it does recognize many values that would be compatible with the ethical expectations for psychologists. The Association of American 232

Colleges and Universities (AAC&U, 2006) published a document on the relationship between academic freedom and educational responsibility that states, There is, however, an additional dimension of academic freedom that was not well developed in the original principles [referring to the 1940 AAUP statement], and that has to do with the responsibilities of faculty members for educational programs. Faculty are responsible for establishing goals for student learning, for designing and implementing programs of general education and specialized study that intentionally cultivate the intended learning, and for assessing students’ achievement. In these matters, faculty must work collaboratively with their colleagues in their departments, schools, and institutions as well as with relevant administrators. Academic freedom is necessary not just so faculty members can conduct their individual research and teach their own courses, but so they can enable students—through whole college programs of study—to acquire the learning they need to contribute to society. (p. 1) Other aspects of the AAC&U document emphasize the qualities of a learning environment, such as respect and civility, which would be in alignment with our notion of a positive culture of ethics. We believe that common ground across the perspectives of academic freedom and responsibility to promote principled behavior in the academy considers the legitimate interests and responsibilities of students, faculty, and university leaders in fulfilling their ethical responsibilities. Reynolds and Smith (1990) also extended their discussion to sets of public and political principles with related responsibilities. These additional responsibilities are not irrelevant to a discussion of ethics in the academy nor to the role of universities in modern society, but they are more strategic in their focus and extend beyond the scope of this chapter.

Creating Ethical Academic Cultures

EXPLICIT AND IMPLICIT VALUES THAT AFFECT ACADEMIC CULTURES As should be apparent from the discussion thus far, academic psychologists typically live within a complex ethical culture. Contrary to the myth that they are isolated in the rarefied atmosphere of the ivory tower, they are shaped and influenced by the myriad expectations of the forces affecting the academy as well as their departments. In Figure 12.1, we illustrate the major forces that affect the ethical culture and climate within which academic psychologists function. The model shows the forces that affect the higher education enterprise and specific academic institutions and how these forces combine with more personal ethical influences. Together, they shape how academics interact with the major activities of their work to teach students, conduct scholarly

work, and provide service within and beyond the academy.

Forces That Affect Good Work The model in Figure 12.1 builds on one introduced by Berg et al. (2003) who addressed the problem of misaligned forces impeding an educational institution’s ability to do what they call “good work.” This refers to work that is of high quality, socially responsible, and meaningful. Their perspective on good work combines our understanding of positive ethics and excellent accomplishments. They describe both the institutional and extrainstitutional forces that shape an educational organization’s mission and the actions ultimately taken within it. They point out that social and cultural forces from the larger society

FIGURE 12.1. Forces shaping the ethical culture and climate of an academic psychologist. 233

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translate into economic and political activities that lend values, tangible resources, and rules to higher education. Likewise, external stakeholders, such as the community, parents, alumni, and donors contribute tangible resources as well as a set of expectations and legitimacy to the higher education enterprise. Higher education, through its traditions, curricular models, established institutions, practices, and accrediting agencies, influences the enterprise by providing models of organization, definitions of acceptable content, and legitimacy. External forces that influence the academy include societal expectations for higher education; political, economic, and cultural trends in the society; extant and emerging curriculum trends and expectations; and the expectations of accrediting agencies, local and regional communities, parents, and donors. Publicly funded institutions have other direct and indirect political, legislative, and administrative influences. Often, academic programs and individual faculty are isolated from many of the pressures and challenges that academic administrators or department chairs may experience on a daily basis, but in the final analysis, they affect almost everyone within an institution. Within the academy, value-shaping forces include trustees, advisory boards, a variety of formal and informal leaders, faculty, and students. Ideally, all of these groups should be guided by a clear mission for the institution and its related values. Some institutions have a clearly framed creed, honor code, or statement of its guiding values and beliefs. Trustees, as well as other governing stakeholders in a political hierarchy may come with and assert perspectives from the larger community and may emphasize values that are perceived by administrators and faculty to be at odds with their understanding of the institution’s mission. Similarly, administrators and faculty may find themselves in conflict over values, especially as they affect the status of an academic department and delivery of services to students. The values and curriculum of a liberal education versus a careeroriented, technical, or professional education; ideal class sizes; the relative weighting of a faculty member’s scholarship; and teaching and service are prime examples of instances in which conflicting forces may create ethical dilemmas for academics. 234

The mission and size of the institution also can create vastly differing expectations for academics. For example, the cultures of a large research-focused university, a regional comprehensive university, and a small public or private liberal arts college or university are likely to be quite distinct. The ethical context and cultural realities established in these settings can differ dramatically and have profound implications for administrative and faculty behavior. Decisions made about allocation of faculty time and their availability to students, funding priorities, class sizes, and so on will greatly affect students and other constituents. As an example of stark contrast, faculty members in small teaching colleges and those in large research institutions may live very different academic lives and have quite different expectations for the allocation of their time as well as their relationships with students. They also are likely to have a different sense of their integration into the fabric of the larger institutional culture or their role in shaping the overall mission and activity of the institution. Expectations regarding faculty roles may vary across individuals, departments, and schools within a single institution. Tenure and promotion expectations, departmental or discipline-related expectations, and major-specific goals versus support for general education or campuswide instructional service goals all will affect the allocation of time and effort. Moreover, these expectations may well affect or shape the culture of the institution as well as the ethical sensitivities of faculty and students. All academic psychologists face real or potential conflicts of interest with regard to their allocation of time and personal resources in the service of their perceived duties to students, colleagues, their discipline, the larger institution, and even the community beyond the institution. They often confront ethical dilemmas regarding the choice between two positive roles, such as spending time advising or supporting the academic needs of students or needing time away from students to complete their own scholarly goals. Institutional priorities affect these decisions, and the perceived realities of tenure and promotion expectations often require difficult choices. Teaching, advising, scholarship, and professional practice often compete, and academics feel direct and indirect

Creating Ethical Academic Cultures

pressure to favor one or more of these activities. Students generally desire small class sizes and rightfully expect faculty attention outside the classroom, while performance review committees want to see evidence of scholarly productivity, and administrators may want to see maximum student credit hour production. Although aspects of these conflicting demands can be negotiated and formally settled via assigned teaching loads, release time for scholarship, posted office hours, and so on, they all fundamentally represent ethical choices made about competing responsibilities and underlying values. Figure 12.1 also illustrates the more personal and unique influences that shape the academic milieu of the academic psychologist. All academic psychologists have personal histories regarding their own moral development and ethics education. They also come to academia having been influenced by early family experiences that continue to affect their thinking about ethics as well as their inclination to act on ethical matters. It would be naïve to assume that all academics have reached higher levels of moral development. The experience of the APA and other ethics committees or licensing authorities in responding to inquires or complaints against psychologists would suggest otherwise. We would posit that less ethically developed individuals may focus more on self-interest or view fairness through a different lens than those who have developed their powers of ethical analysis and apply them regularly as individuals or in concert with other colleagues. In the sections that follow, we discuss some of the conflicts that may arise. Not all academic psychologists have had extensive or comprehensive ethics education experiences. Psychologists are fortunate to have available strong professional organizations that provide many opportunities for greater awareness of scholarly knowledge and best practices in ethical behavior. As a discipline, we have a strong tradition of ethical reflection and a shared commitment to ethical practice across settings. Although the Ethics Code should be understood by virtually all psychologists, this does not mean that all have an equal opportunity to participate in cultures that emphasize ethics or function in a climate that consistently and openly supports transparency and shared reflection about ethical matters.

Identifying Time for Ethics Education and Reflection Those who are concerned with maintaining licensure as a practicing psychologist may be required to complete periodic ethics training via continuing education, but there is no such expectation for other academic psychologists. In our experience, many academic psychologists are most aware of ethical guidelines affecting their scholarly work (e.g., use of human or animal subjects). They are relatively less focused on ethical issues relating to other aspects of their academic roles. We have seen much less awareness or explicit attention to the implications of basic ethical principles, such as beneficence, nonmaleficence, and justice, to such issues as dual relationships and conflicts of interest in the allocation of time and resources. We strongly recommend that academic psychologists periodically engage in group education and discussion about the ethical aspects of their work. The department often would be the ideal unit in which this could happen. Peter A. Keller and J. Dennis Murray have been regular participants in an annual ethics educators’ workshop organized by the Pennsylvania Psychological Association. The workshop gathers together participants from colleges, universities, and selected professional settings across the state for thoughtful and productive conversations about a broad range of ethical issues and educational activities. Students as well as faculty members and professionals participate in leading the discussions. Some sessions use panel discussions, while others are based on small group reflections regarding ethical dilemmas. Self-disclosure about ethical challenges as well as mistakes made contribute to a climate that is positive and trusting. Among the learning that has emerged from this venue is the recognition that not all ethical problems have a single obvious solution and that many dilemmas involve conflicts among two or more defensible responses. Based on this experience, we can attest to the powerful impact of taking time regularly to reflect on ethical principles and issues with colleagues. Academic psychologists should be able to identify the subcultures that most affect their values, behavior, and ethical practice. Colleges, departments, disciplinary identities and affiliations, professional training programs and clinic environments, 235

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research laboratories and scholarly institutes all may support unique cultures and related climates with ethical consequences. In addition to having stated missions and goals (perhaps without sufficient articulation to actually guide behavior) these cultures exist within funding realities and outside performance pressures. We encourage academic psychologists to purposely inventory the settings within which they work and describe and examine the forces and values that affect them. Where lack of trust is a barrier to doing so, it may be even more important to set aside specific time for this purpose. ■

An Inventory of Ethical Influences and Responsibilities

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Having made an initial effort to set aside time to consider their ethical circumstances, a next step would be to connect this inventory to its impact on professional values and behavioral choices. At the very least, academic psychologists should be able to answer these questions:

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What are the spheres of influence on my ethical decision making? How would I describe the culture and climate of each of these? What values derive from each of these subcultures? What are the demands made on my time and professional priorities? What conflicts arise as a result of differing values or expectations?

These questions should provide a basis for a selfassessment regarding the impact of these cultural demands on academic psychologists. A values inventory and an explicit belief statement or creed can make a department mission statement more meaningful and highlight important issues as a foundation for ethically informed choices. This selfassessment should answer these questions: ■

To whom do I have a duty, and what are those duties? This list would likely include the following: ● the greater society, ● my academic institution and its mission, ● funders (including government and taxpayers, if a public institution),

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other relevant stakeholders (e.g., parents, trustees, community, alumni), ● the students I teach (train, mentor, supervise, advise), ● the scholarly community, ● my professional colleagues, ● my professional affiliations and adherence to their ethical standards and codes of practice, ● my family and friends, ● myself (self-care to prevent distress from conflicting personal and professional demands), and ● my community. Are these duties prioritized? How do I balance them? What are the personal and professional values to which I adhere and that I consider fundamental to my work? (We find it most helpful not just to list values as simple concepts, but to articulate each in terms of its meaning and relevance to the work at hand.) How do I resolve the conflicting value dilemmas presented by the many academic culture pressures on me? How do I set my priorities regarding allocation of my time and resources? Where do I turn for counsel and feedback when I identify an ethical conflict? Do I consciously align my behavior with my stated values? What are the implications of my values and behavior for the constituencies to whom I am accountable: my institution, department, colleagues, students, community, and so on? ●

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The ethical culture and climate surrounding an academic psychologist is more than the sum of all of these parts. Psychologists need to be aware of the impact this whole has on their ethical thinking and behavior. Individuals functioning within the particular cultural whole of a department within a university may not always be in the best position to comprehend their experience as it relates to the decisions they make. Each decision that affects others, as well as the ways in which we communicate our decisions or explain our actions, has the potential to cause harm or to benefit the legitimate interests of others. It is our position that we have a responsibility to

Creating Ethical Academic Cultures

examine all these pieces and to make explicit to ourselves as well as those with whom we relate how we are shaped by and respond to these many forces. Ethical analysis is not a passive activity, and in academic settings especially, we have a duty to actively become aware of the ethical implications of what we do and to accept responsibility for our actions. In the sections of this chapter that follow, we address specific areas of ethical analysis and practice within academia. We start with an overview of academic integrity, an area that has received growing attention in the scholarly literature as well as within the more popular press. Our perspective emphasizes the impact of culture and climate on the decision to cheat in various forms and examines strategies for promoting cultures of integrity. ACADEMIC INTEGRITY AS AN ETHICAL IMPERATIVE Alarm is growing about the evidence of pervasive and persistent failures of ethics and academic integrity across U.S. colleges and universities. The concept of academic integrity is defined within the Center for Academic Integrity’s (1999) document titled The Fundamental Values of Academic Integrity, which states that “academic integrity is a commitment, even in the face of adversity, to five fundamental values: honesty, trust, fairness, respect, and responsibility. From these values flow principles of behavior that enable academic communities to translate ideals into action” (p. 1). These values are generally in alignment with those of the Ethics Code, which also emphasizes principles such as fidelity, responsibility, and integrity, which from the APA perspective includes honesty and the avoidance of cheating or fraud. The various forms of academic dishonesty are reflected only in a general sense within the Ethics Code. For example, Standard 8.11, Plagiarism, states that “psychologists do not present portions of another’s work or data as their own, even if the other work or data source is cited occasionally.” Although, on the surface, this may seem like straightforward guidance that could be followed by undergraduate students, we will explore how this expectation is more complex than many faculty generally assume.

Empirical studies, self-reports of students, and perceptions of students, faculty, and administrators indicate that academic misconduct has almost become normative in institutions of higher education (Bertram Gallant, 2008; McCabe, Treviño, & Butterfield, 2001; Whitley & Keith-Spiegel, 2002). An analysis by Callahan (2004) contained in his book The Cheating Culture, as well as comprehensive surveys of other workplace (Ethics Resource Center, 2009; KPMG Forensic, 2009; GfK Custom Research, 2008) and academic settings, has suggested that misconduct of various forms is endemic across all forms of modern institutions. Estimates of the prevalence of integrity violations across time and institutions indicate that roughly 75% of the population is involved in dishonest behavior at one time or another. Various forms of misconduct appear to infiltrate most, if not all, of the dimensions of academic life, including admissions, financial aid, classroom behavior, performance on examinations, research and writing, and other requirements for completion of academic degree programs. Bertram Gallant (2008) and McCabe et al. (2001) cited Bowers’s (1964) study of student dishonesty as one of the first broad-based empirical analyses of cheating in academic contexts. Bowers found that 75% of the undergraduates surveyed acknowledged cheating at one time or another. A recently reported survey (Yardley, Rodriguez, Bates, & Nelson, 2009) of psychology alumni from a large western university with an honor code found that 81.7% of 273 respondents (42.5% response rate) admitted to various forms of cheating. “Time constraints” and efforts “to help a friend” (Yardley et al., 2009, p. 8) were the two most commonly cited reasons for cheating among the group surveyed. Bertram Gallant (2008) has suggested, and we agree, that there is a widespread crisis of academic integrity and that the integrity failures seem to occur within a context of more extensive ethical failures. A perusal of daily sources of news in academia such as the Chronicle of Higher Education and Inside Higher Ed reveals a long list of ethical violations that involve not only students, but also faculty, scientific and medical researchers, and high-level leadership across a variety of institutions. Almost certainly, it is not even possible to know precisely how many 237

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ethical or academic integrity violations occur in colleges and universities because of varying definitions of ethical failure and academic dishonesty as well as the challenges associated with detailed empirical study of such personally and socially undesirable behavior. Empirical studies such as those summarized by McCabe et al. (2001) have suggested that academic dishonesty, if not increasing, is at least becoming more insidious and that the ethical bedrock of higher education is more fragile than many assume. Beyond recognizing the extent of the problem, there is a lack of consensus among faculty about how to frame the circumstances (Blum, 2009) or prevent and manage the violations that occur with regularity. Researchers have observed multiple causes of academic dishonesty. Whitley and Keith-Spiegel (2002) discussed motivations for cheating that are as diverse as students’ concerns about performance, various external academic and nonacademic pressures experienced by students, professors who are perceived as unfair in their grading practices or course-related expectations, and conflicting loyalties to individuals or organizations. Moreover, students use a variety of justifications for their academic dishonesty to themselves or others. Murdock and Stephens (2007) have analyzed students reasoning about cheating and described a variety of mechanisms that students use to cognitively neutralize their dishonesty. Anderman and Murdock (2007) noted that efforts to understand cheating have been approached from perspectives as diverse as education, sociology, philosophy, and economics. Indeed, peeling the onion of academic integrity reveals much more complexity than the procedures reflected in the policies of most institutions would lead one to suspect. College and university administrators and faculty respond in various ways to academic dishonesty. Many focus on those individuals who are believed to be cheating, devising strategies for catching them and seeking appropriate punitive measures. Others look for ever more creative ways of giving examinations or obtaining writing samples that are less vulnerable to academic dishonesty. Typically, these responses reflect the ways administrators and faculty members think about cheating and its causes. Most 238

approaches focus on warning students about academic dishonesty and attempting to identify those who violate institutional policies. Some institutions rely on honor codes to prevent integrity violations, and view student involvement in the prevention and enforcement of violations as a key variable in the prevention of academic dishonesty. McCabe et al. (2001) suggested that a combination of proactive and positive institutional and faculty strategies that emphasize the importance of academic integrity can contribute to a reduction in cheating. At the same time, they noted how easily academic integrity can be undermined by faculty who fail to take violations seriously or who neglect to model respect in their interactions with students. McCabe (2005) perhaps best summarized the challenge of ensuring academic integrity when he observed, Our goal should not simply be to reduce cheating; rather, our goal should be to find innovative and creative ways to use academic integrity as a building block in our efforts to develop more responsible students and, ultimately, more responsible citizens. Our campuses must become places where an entire “village”—the community of students, faculty and administrators—actively works together to achieve this goal. (p. 4) This brings the goal of addressing matters of integrity very much in line with the notion of creating positive ethical cultures. Callahan (2004) viewed cheating in the academy as intertwined with the norms of the larger U.S. culture. Not surprisingly, he pointed to the benefits of privilege in commerce and the professions, actually in virtually every facet of U.S. life, that have infected both secondary and higher education. He defined cheating as “breaking the rules to get ahead academically, professionally, or financially” (Callahan, 2004, p. 14). Vojak (2006) also has noted the powerful impact of our market-driven culture on ethics and academic dishonesty. This perspective on individual behavior embeds academic dishonesty in the larger U.S. culture that rewards excess of privilege and financial success at virtually any cost. Viewed in this context, cheating on a quiz in an academic

Creating Ethical Academic Cultures

course, plagiarizing another person’s writing in a term paper or thesis, or copying another person’s work on a final examination appears small and insignificant when compared with Bernard Madoff’s bilking billions of dollars from individuals and families (Henriques, 2009), the catastrophes of Enron or WorldCom, and the greed-driven failures of major financial institutions that resulted in thousands losing a substantial portion or even all of their personal savings. Put differently, we live in a period of extensive corruption and moral failure that to some may make small infractions seem of both low risk in terms of their consequence and insignificant against a cultural backdrop of pervasive greed and ethical failure. This widespread corruption also raises the question of whether our broader failures across institutions of all kinds—business, governmental, political, religious, as well as educational—might be linked to failures within education to recognize fully and accept responsibility for addressing the ethical challenges of academic institutions. We believe the evidence in total suggests that Derek Bok (1988) had it right when, as president of Harvard University more than 2 decades ago, he observed the failure of modern colleges and universities to come to grips with the moral aspects of education and discussed what might be done to promote higher standards of ethics among students. But students represent only a part of the story, for they function within academic departments and institutions that often offer evidence of their own failures and an apparent inability to act in a consistently ethical manner. Most would agree that within psychology, the promotion of academic integrity is essential at the undergraduate, graduate, and postgraduate levels. It is important because the quality of our research and professional practice depends on academic integrity and because for most students enrolled in college curricula, one or more courses in psychology are likely a part of the core or general education curriculum. Frequently psychology courses are the primary exposure that students have to the scientific method, particularly within the social and behavioral sciences, underscoring the importance of ethics in ensuring the integrity of scientific research and professional practices that have a significant impact

on people’s lives. The ethical base is a substantial part of the contribution psychology makes to the acquisition, analysis, and utilization of knowledge, and we would argue that an understanding of the ethics of psychology should begin with the introduction to psychology course and be addressed in other ways across the psychology curriculum. Psychologists such as Kohlberg (1969) and Rest (1979, 1982) have stimulated the study of moral thinking and behavior, generally, and academic integrity in particular (e.g., Whitley & Keith-Spiegel, 2002). Thus, the study of psychology at the undergraduate level provides the opportunity for instructors to explore the nature of ethics, moral reasoning, and action, as well as academic integrity with their students in ways that are constructive rather than regulatory. In the section that follows, we consider academic integrity within the larger context of the teaching and learning process. POSITIVE ETHICAL CULTURE AND THE TEACHING–LEARNING PROCESS Teaching and student learning lie at the heart of an academic institution. While formal instruction is an important part of higher education, teaching and learning reach far beyond the classroom, laboratory, or seminar room. In fact, the notion of a positive ethical culture assumes that teaching, learning, and the development of student character take place across the entire life of the institution, both in the formal contexts of the classroom and in other informal or cocurricular contexts of the overall college experience. Whether or not the formal mission of an institution recognizes its role in the development of student character, we would observe that character is shaped, for better or worse, as a function of the modeling that takes place as students scrutinize the behaviors of their faculty, advisors, university and student leaders, and other members of the campus community. Faculty, residence life staff, athletic coaches, and other advisors across a variety of settings serve as role models for character and integrity. It is important that their actions align with the mission, values, and strategic goals that should represent the intended culture and climate of the institution. 239

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This section addresses teaching and learning as essential parts of a positive ethical culture, with particular emphasis on the formal roles of faculty and students. For our purposes, teaching and learning are a process, each of which is incomplete without the other. The work of Barr, Tagg, and others (Barr & Tagg, 1995; Tagg, 2003; Weimer, 2002) has provided a compatible perspective that emphasizes the importance of learning rather than instruction as the most significant outcome of education. In a sense, these are two sides of a coin where faculty and students have reciprocal responsibilities with the intended outcome being student learning and, from an ethical perspective, character development. Our viewpoint is also mindful of the importance of the teaching and learning functions of other aspects of the institution. This broader view of learning includes both formal and informal modes. The formal mode is focused on the classroom, library instruction, laboratory work, and practical applications of learning built into curricular as well as extracurricular dimensions of an institution. The informal modes of teaching consist of the experiences that virtually all personnel across the institution have as they interact with one another. This would extend to governing bodies, which have a responsibility for establishing the desired ethical culture, as well as alumni and the public. The classroom offers an essential context for addressing the implications of the ethical culture of the institution. Ideally, a proactive approach to ethical behavior that embraces the life of the institution and its constituents enables students to view ethics in the larger context and to understand the relevance of classroom behavior to interactions beyond this setting. This also implies that faculty have a responsibility to recognize the importance of ethics in their instruction and their role in promoting academic integrity. Although the approaches may be different at the undergraduate and graduate levels, it is important that matters of ethics and integrity be integrated and addressed skillfully at both levels. Our perspective on academic honesty and dishonesty is that a proactive position by faculty and administrators is necessary to influence student thinking and action. For example, empirical study of cheating behavior reveals that institutions with honor codes 240

have less cheating than those without honor codes, particularly when students are involved in the enforcement of those codes (McCabe & Makowski, 2001). This suggests that students’ clear understanding of cheating along with participation in the process for adjudicating cases of dishonesty can influence the amount of cheating that occurs. When expectations for academic integrity are instilled early in the student’s career, there seems to be greater likelihood that they will be able to take reasoned and perhaps morally courageous stands against academic dishonesty and other ethical violations. From our perspective, however, cheating in the classroom is not unrelated to faculty misconduct or administrative ethical laxity in higher education. Researchers who falsify data to enhance the possibility of grant awards, athletic department personnel who make improper payments to athletes, faculty who blatantly fail to meet their promised obligations to students, or administrators who turn their heads away from faculty misconduct, or who actually violate stated values and commitments of a college or university, all are part of the informal system that inadvertently may support a culture of cheating and a climate that looks the other way when individual or even group behavior lacks integrity. The formal teaching–learning process is rooted as much in the quality of the relationship between teachers and learners as in the learning assignments and expectations. An understanding of ethics grounded in the expectations of an ethical culture enables participants to think through alternatives for interactions across varied instructional circumstances. By contrast, regulatory approaches seem less likely to address the varied alternatives for ethical analysis and action in the complex research and practice worlds for which students are being trained. Balogh (n.d.) identified five areas in which students need to develop ethical skills: ■

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Sensitivity to ethical issues, sometimes called “developing a moral imagination,” or the awareness of the needs of others and that there is an ethical point of view; Recognition of ethical issues or the ability to see the ethical implications of specific situations and choices;

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Ability to analyze and critically evaluate ethical dilemmas, including an understanding of competing values, and the ability to scrutinize options for resolution; Ethical responsibility, or the ability to make a decision and take action; and Tolerance for ambiguity, or the recognition that there may be no single ideal solution to ethically problematic situations.

Faculty may find it helpful to conceptualize their approach to the teaching and learning of ethics in relation to Balogh’s five areas. The first area is similar to Rest’s (1982, 1994) concept of ethical sensitivity and recognizes the importance of students building an awareness of others’ needs from an ethical perspective. Her other points align with Rest’s conceptualizations of moral judgment, motivation, and character. The relational context of the teaching and learning process provides an opportunity for students to learn about ethics from the thinking and behaviors the instructor models and from what the instructor identifies as having ethical dimensions. Balogh also identifies various approaches to learning ethics—case studies, diaries of media events or issues derived from films or television shows, roleplaying, debates, and supervised service learning— that could be integrated into various types of courses. She notes the importance of recognizing students’ readiness to learn as their knowledge and sensitivity to ethical issues grows. Ethical issues abound at many points in the teaching and learning process as do opportunities for students to observe a faculty member’s related actions. (More information on teaching ethics to psychologists can be found in Chapter 14 of this volume.) A duty to understand ethics and act ethically rests both with the faculty members responsible for teaching and with the students responsible for learning. In a positive ethical culture, both ideally would operate from a framework that promotes beneficence, nonmaleficence, respect, fairness, and regard for diversity. These values as well as related standards establish an ethical framework upon which both faculty and students can make ethical judgments.

The establishment of a culture-based ethical perspective for the teaching–learning process, rather than rule-based guidelines, has several advantages. First, it provides a predictable standard of behavior for both students and faculty. Specific ethical principles and expectations may be made clear at the outset of a course of study, printed in the syllabus, and made available on relevant websites. Via guided discussions, the expectations of the class with regard to ethical concerns may be made clear at the outset, placing them on the table for relevant discussion at the first or subsequent meetings of the class. Furthermore, this ethical perspective integrates concern for ethical behavior into the substantive issues of the class, establishing a context to address ethics in relation to other class activities. For example, it is a small step from addressing an ethical issue of the expectations for classroom behavior to examining the ethical concerns about psychological diagnoses and their implications in a course in abnormal psychology. The fundamental ethical principles are relevant for both areas. Early in the course, a faculty member can devote class time to discussing the ways in which students understand academic integrity or specific examples of cheating. A simple question asked to the class, either for private written response geared toward later discussion or a verbal response, can elicit a range of diverse definitions of cheating and opinions about appropriate consequences. This enables the professor and the class members to openly discuss cheating, understand common definitions of cheating, and provide a general invitation for further discussion either in private or in the classroom setting. It also offers the faculty member an opportunity to explain an approach to ethics on basis of the student’s integrity rather than in the response to a set of preestablished rules. Establishing ethical principles at the outset of a course is also relevant to stages of the teaching– learning process and can provide guidance for other behavior. Many students will not have thought about the nature of the faculty–student relationship and any expectations that it may include, particularly for themselves. The specification of ethical values at the outset can provoke examination of these issues, emphasizing the responsibilities that 241

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students must assume as a part of the class. It also specifies the responsibilities that faculty members accept, creating a transparency that is likely to positively influence classroom activity. For example, clearly identifying ethical values on a syllabus and dedicating time for discussion leads to expectations for mutual behaviors of faculty and students that can shape ethics as a process of learning, reflection, and action, further moving away from the rulebound concept of ethical behavior. This enables both faculty and students to think together about course requirements, mutual expectations of the relationship between them, and the process that the course will follow during the term. It further specifies the responsibilities that students accept, taking these commitments beyond simply a learning process to an ethical one and integrating ethical reflection with substantive education. Initiating discussion of ethics at the beginning of the course enables the professor to interpret ethical principles in light of the requirements of the particular class and assignments. Determining how students define cheating at the outset enables them to make any necessary adjustments in their thinking for the specific course. There is an obligation for faculty to consider carefully the assignments in a course, for example, any activities that may involve group projects, and define clearly for students their individual versus group expectations for performance and assessment. Early clarification of ethical expectations and commitments should be sufficiently broad to embrace most of the situations that may arise in the process. Burrus, McGoldrick, and Schuhmann (2007) found that students did not always understand behaviors that constituted cheating in the academic context and suggested “because students . . . did not fully comprehend what cheating is, it seems that an obvious first step toward combating cheating would be to provide clear and consistent reminders of which behaviors are unacceptable” (p. 14). Early attention to ethical issues in the classroom provides opportunity for both students and faculty to share common conceptions of cheating, potentially reducing the possibility of inadvertent cheating. Among the types of academic dishonesty that occur in the classroom are plagiarism, cheating on 242

examinations, and inappropriate collaboration among students. Plagiarism and collaboration have substantial gray areas and sometimes may be a matter of interpretation. Cheating on examinations, on the other hand, is often more clear-cut and easier to define depending on the context of the examination. Among the most prevalent types of academic misconduct is plagiarism, or claiming another person’s work as one’s own. The availability of a wide range of scholarly materials on the Internet that are easily accessed by search engines of growing sophistication widen the possibilities for students engaged in research to unearth various sources of information related to their assignment. The ability to manipulate text from these sources increases the possibility of adopting it as a part of one’s own creation. Laxity in tracking information as it is identified and saved electronically may contribute to the complexity of the problem. The lines of demarcation between a writer’s interpretation of another’s work and its integration into the writer’s own work are not always as clear as we might wish, resulting in a potential violation of the rules of plagiarism, perhaps unintentionally. Blatant violations of plagiarism may be snared by the use of specialized programs such as Turnitin (see http://turnitin.com). Adding to the complexity of the situation, just as faculty can use online software to detect plagiarism, students also can use a variety of online software to detect and prevent unintended plagiarism (or perhaps find out if intended plagiarism might be caught). Perhaps nothing says more about the ethical complexity of our electronic age in relation to plagiarism than the many websites dedicated to the prevention and detection of plagiarism. Unfortunately, the space between unintentional plagiarism and flagrant plagiarism is not always substantial. Faculty members often are placed in the position of having to make judgments about the legitimacy of students’ work. Typically, these judgments must include an assessment of the intent underlying the student’s presentation of material. Did the student intend to present another’s writing as a part of his or her own work, was there confusion regarding the appropriate citation of the work, or did the student electronically confuse a section of

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text found online or within a library database with their own statement? Plagiarism, however, raises another significant issue in the faculty–student relationship. The availability and use of increasingly sophisticated forms of technology generates even greater differences between the generations represented by faculty members and students. Availability, in addition to confusion regarding what sort of information must be cited and in what format, and what may be paraphrased with little or no citation, creates a considerable range of possibilities on the dimension that spans plagiarism and legitimate citation. Blum (2009) addressed the problem of plagiarism within a developmental framework, making the issue of citing text in one’s own work a matter of learning rather than a matter of a priori rules. The confusion around the nature of plagiarism, the rise of technological access to more materials, and the normative manner of student communication (e.g., texting, Twitter) reveal an ever-growing culture gap between faculty and students. Blum has suggested an approach to “academic integrity, especially the mandate to cite sources, as a set of academic skills to be learned” (p. 165). Her approach is a transparent and forthright means of identifying integrity early and prominently so that both faculty and students are clear about ethical issues and processes. An important by-product of addressing the issue of plagiarism openly and early in the process is to involve students in identifying potential solutions to the challenges of appropriate citation of work. Because students operate within a frame of reference for managing ideas and material that is distinctly different from faculty, enabling them to become a part of the process of recognizing and remedying plagiarism offers different options for solutions. Furthermore, it empowers students to become a part of the larger positive ethical culture that is desirable for a department or institution, further reinforcing the value and importance of ethical behavior. Collaboration among students also has cultural implications with generational differences. In some circumstances, collaboration is a desired part of the learning process and students are encouraged to work together on a research project or other learning activity. Blum (2009), in her study of plagiarism

in college, found that “many students accept that intellectual concepts can be simultaneously their own and someone else’s” (p. 55). Discussion of a project among a group of peers will yield several ideas that may bear fruit in one person’s work. Notes taken during a student discussion either online or in person may be integrated in some form into a student’s final report. To what degree is that plagiarism? Does it violate the spirit of individual work? How should this idea be cited? Where did the student’s individual thinking and the group discussion intersect? Blum (2009) further pointed out that work in groups has become normative in recent generations, a shift from the generations in which most current faculty studied. Students have varied ways of communicating with more of their colleagues, even across campuses. Even the resources that students frequently consult share a collaborative history. Wikipedia, the alternately vilified and celebrated online encyclopedia, is the product of enormous collaborative or collective effort. Its popularity among students preparing academic work—both those who copy text wholesale and those who refer to online websites for introductions to concepts— raises questions about the legitimacy of the individual’s ownership of ideas and writing. One strongly held point of view regarding Wikipedia is that no student should use it as a source under any circumstances; another is that students may find it helpful to begin an investigation of an idea or concept with the Wikipedia overview. One professor required students to include the Wikipedia discussion of the topics for term papers in an abnormal psychology class, removing the question of its use and assuming an initially common approach to gathering information. Cheating on examinations typically consists of copying another person’s work, taking information into the testing room, or receiving information electronically (e.g., using cell phones or various personal digital assistants) while taking an exam. The intentions of students who gain access to information during an examination period clearly fall within the category of academic dishonesty, presuming that faculty members have made clear when external resources may or may not be utilized. Because some 243

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faculty members use open-book tests, it is necessary to specify whether tests are open or closed book to avoid inaccurate assumptions. If the examination is given as part of an online course, the parameters may be quite different. If the examination is monitored, the opportunities to cheat presumably are lower than if students may take an examination at their own preferred location. Online examinations frequently have become available electronically as students capture the examination questions and share the items with others. In other instances, students may arrange for access to texts, notes, or relevant websites as they complete an examination. For every technological innovation that reduces the possibility of capturing examination items, there is likely to be another innovation that enables students to circumvent an instructor’s efforts to prevent cheating. It would be virtually impossible for this chapter to address all of the combinations of possibilities for preventing cheating. The online environment complicates ethical responsibilities of faculty and students alike. We believe that faculty members have a responsibility to discuss with their students the ethics of learning, generally, and of an online course, in particular. Furthermore, the design of the learning and assessment processes must be made in such a way that students who strive to be academically honest are not disadvantaged relative to others who are not so inclined. Unless faculty can ensure the integrity of examination items and processes, we suggest that they consider other approaches to the testing process. One method for assessment in online courses designs tests such that students can access their text, notes, or other online resources; this method views the examination as an extension of the learning process. Again, the proactive discussion of expectations for student learning and efforts to clarify precisely what is considered to be cheating on examinations is helpful to students who may be confused about procedures. For example, if an open-book exam is given, does that mean that notes can be used as well? May students use electronic access to notes or other resources? The syllabus or class discussion should clarify these matters to the degree possible. At the course level, it appears that an “integrity strategy” (Bertram Gallant, 2008, p. 38) rooted 244

within a positive ethical culture and classroom climate that communicates trust to students may be more likely to result in trustworthy behaviors. The integrity strategy is more focused on a learning and developmental model of student behavior. Rulebound approaches to ethics, on the other hand, tend to support a never-ending spiral of students finding increasingly sophisticated ways of cheating and faculty countering with ever more refined means of catching them. The positive ethical culture, by contrast, embraces a common understanding of the essential nature of integrity as a foundation for the academic endeavor, seeking to establish honesty and responsibility as values to which the participants agree at the outset and strive to sustain over the longer term. As mentioned, student involvement in honor codes and the adjudication of ethical misconduct seems to enhance academic honesty, at least reducing cheating. A particularly important medium of participation is student involvement on the boards or panels that adjudicate charges of academic misconduct. This is consistent with the goals of an ethical culture, which affirms that each constituency group in the institution has a role in supporting the culture and climate. David S. Hargrove sat for many years on a university judicial board. The board had representatives from several categories of students, staff, faculty, and administrators. Operating from the dean of students’ office, the student members on the board, which represented a majority, provided a consistent student perspective on misconduct. The student members were, without fail, thoughtful and constructive in recommending appropriate consequences for misconduct. From our perspective, it is important to align the sanctions for academic misconduct with the values of the ethical culture. This is accomplished first by defining the institutional values and policies for promoting academic integrity and, second, at the level of the individual course, by encouraging faculty support of the institution’s expectations. Faculty members hold a wide range of beliefs about consequences for integrity violations. In our experience, many of those views are aligned more closely with traditional notions of punishing violators rather than with emerging views that represent the integrity strategy

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described by Bertram Gallant (2008). This latter approach recognizes the cultural elements that must be addressed if we are to successfully promote academic integrity. In alignment with the assumptions of this chapter, we believe that faculty members have an essential role to play in understanding and implementing institutional expectations to address misconduct. We strongly prefer approaches that are aligned with the notions of an integrity strategy and a positive ethical culture. Some academic misconduct is sufficiently egregious that suspension or dismissal from the institution is appropriate. Cases that are not so serious, however, should arguably have lesser consequences aimed at helping students understand how to avoid their violations in the future as well as recognize the importance of assuming ethical responsibility for their academic work. Of particular importance here is that representatives of the participating institutional constituencies all have a role to play in determining appropriate strategies to promote academic integrity as well as consequences for various types of misconduct. McCabe and Pavela (2005) described what they called a “‘new honor code’ movement” that recognizes both the essential values of academic integrity and the collaborative culture within which modern students function. Recognizing the demonstrated benefits of honor codes, they emphasized the potential to more effectively address integrity violations through the shared leadership of students, faculty, and administrators. It is equally important, though, that consequences are designed from the perspective that the institution is one of higher learning and that the goals of education are not limited to the classroom. One perspective on consequences, for example, is that institutions should provide a meaningful learning opportunity and personal growth or character development experience for individuals who have committed academic misconduct (Pavela, n.d.). The major points of this section of the chapter emphasize that ethical and related academic integrity issues at the course and campus levels involve a process of shared faculty, student, and administrative responsibility. Not all approaches to addressing academic integrity violations are equal in their

outcomes. Academic institutions, faculty, and students would be well advised to consider the cultural assumptions that guide academic behavior from student as well as faculty perspectives and to move toward building positive ethical cultures that provide a framework for both understanding and improving academic integrity. Robust discussions of academic integrity and searches for effective practices in building integrity are desirable at institutional, department, and course levels. One role for academic psychologists seems to lie in an understanding of emerging evidence about academic integrity and educating their colleagues about the benefits of shifting to more enlightened efforts to integrate learning and ethics as part of institutional culture and climate. PERSONAL AND INTERPERSONAL ETHICS IN THE ACADEMIC CULTURE A systems approach to understanding interpersonal behavior in organizations (Kerr, 1982; Wiseman, 1982) does not necessarily proceed from a linear model of analysis and it does not necessarily find the cause of ethical, or unethical, behavior to reside solely in the individual person. Many forces influence an individual’s ethical thinking and actions under a variety of circumstances. The broader systems perspective does not, however, absolve the individual for responsibility for his or her own behavior. In fact, a systems perspective emphasizes the individual’s responsibility for behavior within a network of relationships and expects the individual to consider his or her own part in the behaviors, ethical or otherwise, that may arise in the system. It is important, therefore, to understand the nature of the relationship between an individual and the system of relationships of which he or she is a part. From this perspective, the relationship between an individual and a network of relationships is one of reciprocal influence in which the functioning of one individual is related to the functioning of others. That is, each aspect of a system influences other aspects, and as one individual changes, other parts of the system change in response. The system is in continual, dynamic flux. Influences on individual 245

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behavior are not limited to the individual behavior within the system, however. From a psychological perspective, each individual is connected to multiple systems, including family of origin, extended family, work relationships, social relationships, religious groups, and others. Each of these systems influences individual behavior in the respective contexts. Ethically, each individual is responsible for his or her own functioning in relationship to others. This responsibility is grounded in the knowledge that the individual has of his or her own functioning and emotional reactivity. That is, the individual is responsible for recognizing the kinds of activity that are likely to evoke an emotional response that may interfere with an appropriate reflective analysis of a situation and should be able to define one’s self in such a way to control any reactive behavior. Although our emotions provide us with a powerful source of information about our reactions to others, our emotions also may interfere with our capacity to think clearly about our responsibilities from an ethical perspective. Strong emotional reactions to an individual, a group, or a process may serve as a prompt to consult with colleagues before acting and unintentionally causing harm that is difficult to repair. Psychologists in higher education have significant opportunities to communicate their sharpened understanding of ethical principles and conduct to students and colleagues at various levels. They will encounter many teachable moments during which they can describe an ethical issue in clear terms that will increase ethical awareness in another person. We often have found ourselves articulating and clarifying ethical principles in the classroom, in campus committees, and in one-onone conversations with students and peers. There is an important distinction between addressing moral or ethical matters and a process that might be referred to as moralizing. Writing about the profession of teaching, Campbell (2008) recommended that “ethical teachers should be moral agents and moral models, not moralistic activists” (p. 612). We think this is an important distinction that relates to our point. Several examples of relevant interactions are described in the following sections. 246

Personal Factors Affecting Ethical Behavior We find it useful to identify and examine the social and emotional competencies required to navigate and negotiate ethical issues in academia. Most ethical concerns occur in a social context and frequently involve emotional exchanges between people. These issues also require personal emotional competencies. Goleman, Boyatzis, and McKee (2002) listed 19 emotional intelligence competencies in four domains: (a) selfawareness, (b) self-management, (c) social awareness, and (d) relationship management. They described a number or intrapersonal and interpersonal competencies that we find relevant to ethical practice. Managing emotions in the academic setting. Although it is simpler to assume that ethical dilemmas in academia are essentially cognitive problems requiring logical analysis and decision making, we believe they also occur with an overlay of powerful emotional forces. Frequently, we and the other parties involved have an emotional investment in a particular point of view. We often encounter colleagues who have assumed that their past or current attitudes and behaviors are routinely acceptable and have responded with significant affect when someone suggests that they may wish to reconsider their views or actions. Not recognizing these attitudes and emotions and not managing emotional responses can present a significant intrapersonal problem. It becomes an interpersonal problem when the psychologist lacks the interpersonal skills to respond to or interact with others in the situation. Goleman et al.’s (2002) emotional intelligence competencies of emotional self-awareness, accurate self-assessment, and self-confidence are aspects of selfawareness necessary for psychologists to effectively understand themselves and their own emotions and thinking around ethical issues. Likewise, emotional self-control and adaptability are required when dealing with knotty ethical problems and engaging others in dialogue about ethical issues. We have seen academic colleagues who avoid ethical analysis and dialogue because they fail to recognize, acknowledge, or experience their emotions around an issue. Some fear they might get too upset and actively avoid direct encounters about ethical issues.

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Empathy, which enables us to appreciate another’s perspective, and organizational awareness are essential competencies under the social awareness category (Goleman et al., 2002). Psychologists should be skilled at reading the emotional overlay that comes with others’ ethical stances as well as the organizational and cultural context within which ethical choices are being made. Basic nonjudgmental listening skills can be very useful in identifying and understanding another’s cognitive and emotional perspectives on an ethical situation. Being able to help others separate their emotions from their thinking about an ethical issue can be useful and allow them to better understand the issues at hand. This awareness can help to identify the core ethical issues and determine whether a situation needs to go beyond venting and clarifying the problem to creating a plan for change and meaningful action. Creating positive ethical relationships in academia. Academic colleagues have ethical responsibilities to each other as well to their students and staff, for example, clerical staff or other office professionals with whom they work. There are two perspectives on this: First, what do the principles or the specific standards expect of us? Second, what would we expect to observe in a culture and climate that valued positive ethics? Principle E, Respect for People’s Rights and Dignity, of the Ethics Code indicates that “psychologists respect the dignity and worth of all people.” Standard 3 focuses on human relations and provides a useful focus that bears on psychologists’ ethical practice in academia. Several sections are particularly applicable, including those relating to exploitative relationships (Standard 3.08), multiple relationships (Standard 3.05), and sexual relationships with students and supervisees (Standard 7.07). Psychologists in higher education are important role models for their students (Kitchener, 1992) and often to colleagues and professional staff. Students routinely observe and learn from their instructors and mentors and use their behavior and thinking as guides to determine appropriate behaviors for themselves. In this sense, faculty continually model dimensions of ethical awareness and practice, even if they are not aware of it at a particular moment. Ethical lapses in faculty can be particularly

disruptive for students and possibly affect their future conduct. Although we have all observed academic colleagues who sometimes act or speak disparagingly of their colleagues, we interpret Principle E as setting an expectation that psychologists in all settings treat colleagues with respect and, moreover, act in accord with Principle B, Fidelity and Responsibility, which indicates that “psychologists establish relationships of trust with those with whom they work.” There is, of course, no expectation that colleagues become friends with each other, but they do have a responsibility to treat each other with genuine respect in all aspects of their relationships. This responsibility would extend to the ways in which colleagues discuss their perceptions of each other in conversations with third parties, either within a department or external to the department. The principles do not in any way prohibit psychologists from holding a discussion with one colleague about another, but they do set an expectation for a respectful and professional tenor in any such conversation. If there is an expression of distrust of a colleague or department staff member, there ideally should emerge a plan of action to address the distrust with the others involved. When there is frustration or anger among colleagues, there likewise is a responsibility to identify the source of concerns and seek a constructive resolution. Managing conflict in the academic setting. It is not uncommon in academic departments to observe emotionally laden rifts that are long lasting and destructive to the good work of the larger group. The individuals most directly involved as well as the larger group affected hold a responsibility to address destructive schisms and find ways to resolve conflicts for the common good. Within Goleman et al.’s (2002) category of relationship management, we would emphasize the competencies of influence and conflict management. Intervening in ethically relevant situations requires competent emotional and interpersonal communication skills. Beyond listening and empathy, academics often are called on to assert a position regarding a colleague’s attitudes or behaviors and to demonstrate the conflict resolution skills necessary to 247

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respond to the emotional and logical resistance and counterpositions that are likely to ensue. Many people who believe they are excellent at being assertive lack the equally important abilities to listen, communicate empathically, and engage in a process of dialogue and problem solving in emotionally charged situations. Additionally, many academics involved in ethical dilemmas or disputes have difficulty separating sensitive issues from the individuals involved. We have observed that colleagues who are most effective in processing conflicts in ethical situations demonstrate a high level of emotional maturity and are able to see interpersonal conflict not as a personal issue, but rather as a conflict among attitudes, perspectives, and interests. One author of this chapter (Murray) frequently counsels colleagues to remember that “it’s not (or rarely) about you” and encourages others to see beyond the emotional responses and even personal attacks to the underlying concerns and issues. As noted, each interaction among colleagues presents an opportunity to build trust and respect or to decrease trust. To the degree possible, psychologists have a professional responsibility to maintain constructive or beneficent and trustworthy relationships with their academic colleagues. In cases in which interactions seem to be deteriorating, psychologists, with the help of colleagues if necessary, should seek opportunities to reestablish more positive relationships. Preventing conflict that begins to spiral out of control is a shared responsibility of professional colleagues. When this cannot be accomplished within the boundaries of a department or program, it may be appropriate to seek consultation from a third party who is prepared to facilitate constructive conversations that reestablish trust. In cases in which differences among colleagues are based on a belief that one has acted in some way that violates the expectations of the department, the APA Ethical Principles, or specific aspects of the Ethics Code, initial efforts to resolve matters usually should be made directly with the psychologist considered to have violated the standards. This effort might extend to a conversation among department colleagues, perhaps mediated by senior colleagues who are familiar with the ethical issues associated 248

with the circumstances. If the matters being discussed cannot lead to an acceptable and appropriate resolution, or the alleged ethical failures being discussed are so egregious that they need to be addressed at a higher level, then a formal complaint lodged with the appropriate professional oversight committee may be indicated. It is advisable for all departments or programs to set aside group maintenance time during which differences can be addressed in a calmer environment. Department and program heads can organize periodic department retreats at which difficult issues can be addressed in a more relaxed climate. At times, a department or a subgroup within a department may need assistance from an external consultant or mediator to restore constructive communications and a level of trust that is sufficient for good work to continue. In many instances, faculty members within a department find less desirable ways to work around each other. For example, some departments rarely meet because of anxiety about patterns of conflict that predictably emerge when they do. In other instances, faculty members adjust their schedules to avoid one another, or some individuals opt out of department meetings. These and other similar strategies are symptomatic of serious dysfunction and almost always interfere with the capacity of a department to establish a positive ethical climate and focus on the good work for which they are responsible. Students, staff, and others also are likely to suffer personally under these circumstances. Faculty–student relationships. Faculty–student relationships are at the core of the academic experience. The fundamental faculty role is to be engaged with students in the teaching–learning endeavor and in the development of scholarship in the interest of advancing knowledge. These important relationships should be built on a solid ethical foundation. All of the core ethical principles psychologists honor—beneficence, nonmaleficence, respect, fairness, and regard for diversity—apply to these relationships. Kitchener (1992) proposed that faculty have responsibilities to benefit students, not harm students, be fair or just, respect the reasonable autonomy of students, and maintain integrity in relationships with students. In accomplishing such objectives, we believe that faculty members should

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especially recognize the explicit and implicit power and authority they have in communicating with students about these values and ethical commitments. Faculty status is accompanied with what sociologists call ascribed power and what French and Raven (1959) identified as referent power, which is associated with title and position. This type of power is at the heart of the relationship and makes sense in the tradition of the educated imparting knowledge to the uneducated. This perspective, of course, is built on the assumption that the professor is indeed more knowledgeable than the student and possesses the competence to effectively deliver this knowledge. This is consistent with Standard 2.01, Boundaries of Competence, which requires psychologists to practice within the limits of their competence. In an environment in which knowledge changes rapidly and grows exponentially, it is increasingly difficult to define clearly the boundaries of a professor’s competence. Thus, faculty have a responsibility to understand the limits of their knowledge and instructional competence and resist overselling their expertise. On the other hand, academic competence can be seen not in having mastered a fixed canon of facts and known truths, but rather in having competence to help students learn how to learn. Role conflicts. Academic institutions are inherently role and status bound. Psychologists typically are employed in faculty or other professional roles that put them in positions of coercive and reward power in relationship to both students and other staff members of the academy. Those who have power in academia, where autonomy, independence, and academic freedom are hallowed, may lose sight of the impact of that power on others. It is too easy for them to forget the duty to be honest and fair stewards of the authority and resources entrusted to them. Faculty members in particular often have opportunities to exercise power where there is little direct daily oversight or scrutiny. They may face temptations to make decisions resulting in personal financial gain or an easier workload at someone else’s expense. These decisions can negatively affect colleagues, students, and the interests of key stakeholders, such as parents, trustees, or funders. Academic roles also provide many direct and oblique conflicts of interest. The life of an academic

involves a continual set of choices, often among positive alternatives. These often represent ethical choices that can affect our relationships and commitments. Examples of these choices include the following: ■

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Allocating time among teaching, advising, scholarship, and service responsibilities. Deciding whether to add a few more students to a full course or to prevent students from getting the course when they may want or need it. This simple choice could be affected by a variety of variables with ethical implications. Examples would include benefit or harm to students wanting the course, faculty work burden, potential overload pay to a faculty member being offered a second section when a course is split, and ideal student–faculty ratios (lower appears better for a school’s ratings and recruitment; higher usually benefits the school’s financial bottom line). Allocating funds for conference travel to subordinate colleagues. Making decisions that have differential impact on one’s multiple constituencies, including students, colleagues, department, college, or institution. Choosing between assignments for the academic institution and external work or consultation for additional remuneration. This is, of course, complicated by the rationale that that the outside work often enhances an academic’s knowledge and experience that can be of benefit to students in the classroom. This work also may enhance the individual’s status and bring acclaim to the institution. Selecting students for a particular project or favoring those who might enhance our self-interest.

Another matter also related to role conflicts is the use of clinical vignettes from a psychologist’s external professional practice within the classroom. In many instances, an instructor’s clinical experience can help to demonstrate an important point for students. Unfortunately, it is all too easy to reveal unintentionally a confidential piece of information about a client. Academic psychologists who also practice professionally are obligated to ensure that they fully disguise any real-life cases discussed in their classes. Ethics Code Standard 4.07, Use of Confidential 249

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Information for Didactic or Other Purposes, sets an expectation that psychologists take great care to respect the privacy of individual or organizational clients. We would advise that instructors make expectations for themselves and their students explicit in this regard. Within doctoral programs, faculty members have a responsibility to further the development of their students, but also an obligation to graduate only those students who are professionally competent. At times, students may not be proficient because of emotional or cognitive difficulties; these are matters that need to be addressed with skill and care. It is also important that academic programs have in place appropriate policies and plans to address the needs of students who are impaired. It can be difficult to balance these duties, and individual faculty may not always find themselves in full agreement concerning a particular student. (More information on working with impaired students can be found in Volume 1, Chapter 8, this handbook.) Peer relationships. Even solely among faculty peers, academic psychologists may find themselves, by virtue of academic rank or title (e.g., full professor, department chairperson, program director), called on to exercise professional judgment in relationship to their colleagues and to control resources and work assignments that affect others. Administering budgets, assigning teaching responsibilities, determining course schedules and settings, and making recommendations on tenure and promotion are just a few of the many opportunities that call for ethical sensitivity, analysis, and behavior. Often academics find themselves thrust into dual or multiple relationships in these matters. They may struggle to balance friendship with hierarchical authority but must be careful to act fairly and avoid favoritism, which inherently causes harm to the nonfavored. Because many of these peer relationships are close and long standing, the conflict often emerges from anxiety about the social and emotional consequences of peer-related decisions, particularly if they are negative to the peer. Favoritism. Favoritism can be a particularly insidious form of injustice in academia. What starts out as a desire to be helpful to a colleague easily can become inappropriate favoritism. This can have 250

tangible consequences for unfavored colleagues and cause less tangible harm in the form of damaged trust and morale. We strongly recommend conscious attention to implementing fair and explicit decision-making processes and to strive for as much transparency as possible. Although some decisions are the sole province of a designated authority, such as a department chairperson making a renewal or promotion recommendation for a faculty member, the criteria and process involved should be clear and transparent. In other matters, academics can encourage fairness and foster trust by sharing fairness-related decisions with others, via a committee process or using others as confidential consultants. Actions that affect others should be able to withstand the “clean, well-lit room” standard (D. Callahan, personal communication, 1980; cited in Haas & Malouf, 2002), which asks whether a particular decision could withstand the judgment of one’s peers if all aspects of the situation were explained to them in an open and honest forum. This, of course, does not mean that one must always vet decisions but rather that it is a good check to ask one’s self how peers might react if they had access to the process. Others have described a front-page test, which asks how comfortable one would feel if a decision or action were reported on the front page of the local newspaper. We believe that academics should keep such simple tests in mind before and during a decision process, not just when they are challenged after the fact. Favoritism also can be a serious problem when directed toward students. This can range from situations in which substantial privilege and tangible resources are awarded to less obvious cases in which a students are favored in the classroom. Academics often have the power to recommend significant status with financial rewards, as in the case of selecting paid research or graduate assistants. It is important that these choices be made in such a way that ensures respect for the principles of justice, beneficence, and nonmaleficence. Again, we recommend processes that are clearly defined and with as much transparency as is possible. In the classroom, favoritism can be more subtle but also seriously affect the well-being of students and the benefit they receive from their learning experience. When asked, many faculty members

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admit that they find themselves engaged with a few favored students in the classroom while many others, often a majority of students, remain passive observers to these exchanges. This is often a natural consequence of faculty members’ response to more engaged students and the operant behavior of these individuals described as “bright and eager” learners. By virtue of appearance, verbal and social skills, and expressed curiosity, these students often attract the attention of a professor. Many of us feel a little culpable looking back on these interactions, realizing that we thoroughly enjoyed them but that they may have been at the expense of the less socially skilled, openly engaged, or attractive students. Faculty members have a responsibility to remain sensitive to the power they have in the classroom. Much has been written about the need to move beyond the faculty member as “sage on the stage” to providing more engaging forms of learning for students (e.g., Barr & Tagg, 1995; Halpern, 2009; Weimer, 2002). The power afforded faculty members in the classroom setting can be seductive. It is easy to lose one’s perspective in the heady authority of the teacher–student hierarchy (and of course in the illusion that you are brilliant and that everything you say or do with students is unassailably correct). Attention to these phenomena and pitfalls can lead to better teaching and learning interactions. Faculty members should structure the learning environment to ensure that all students have opportunities to engage the material and the classroom process, and they can carefully monitor their interactions with all their students to ensure fairness and benefit to as many students as possible. Interpersonal attraction. Academic settings by their very nature involve status and power hierarchies that engender opportunities for boundary violations involving relationships between those with power (e.g., administrators, teachers, supervisors) and the less empowered (e.g., supervisees, students, interns; Rupert & Holmes, 1997). The youth and vitality of students can be powerfully attractive to those in higher power and status roles. The temptation to turn a professional academic relationship into a personal one has the potential to create serious ethical problems. The Ethics Code, of course, addresses the inappropriateness of romantic and sexual relationships between

psychologists and those with whom they are in hierarchical relationships. According to Standard 7.07, Sexual Relationships With Students and Supervisees, “psychologists do not engage in sexual relationships with students or supervisees who are in their department, agency, or training center or over whom psychologists have or are likely to have evaluative authority.” This admonition clearly relates directly to psychologists in academia. Nonetheless, we are aware, as are most academic psychologists with whom we talk, that it is not uncommon for romantic and sexual relationships to cross this boundary. Many can point to situations that led to what appear to be contented long-term marital relationships that emerged from classroom interactions. In our experience, this can engender a kind of “the ends justify the means” argument that tacitly supports the acceptability of such relationships because of the assumption that not much can or should be done to prevent them, despite the clarity of Standard 7.07. How these relationships emerge once a course or a program of study is completed by a student has many variations. Conversely, it is relatively easy to find examples where such relationships led to severe negative consequences for the parties involved, especially the student or less empowered person in the relationship. Impact of personal needs on interpersonal relationships. As is evident in a number of the ethical issues we highlight, faculty have a responsibility to be sensitive to how their personal needs and concerns can affect the ethical foundation and practice of their interpersonal relationships with colleagues, students, and other coworkers. Positive ethical relationships provide a bulwark against lapses in judgment fostered by personal need. Biaggio, Paget, and Chenoweth (1997) captured these issues effectively when they wrote, Fostering ethical relationships between faculty and students is probably the best way to prevent problematic conduct. At the individual level, faculty must understand the nature and extent of their personal and professional needs and must engage in adequate self-care. They must be meeting their needs in such a way 251

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that these needs do not inappropriately impinge on relationships with students. Faculty should take precautions to avoid acting on poor judgment and should seek consultation around areas of concern and confusion. It is especially important to obtain consultation during times of personal stress, distress, or impairment. (p. 188) We would further observe that academic faculty are vulnerable to a variety of personal distresses related to their interpersonal relationships, their own mental health, and the potential for misuse or abuse of substances. These matters can make them vulnerable and put their judgment in regard to relationships at risk. Matters of self-care are addressed elsewhere in this volume, but the ethical culture and climate of an academic setting are particularly relevant to the ways self-care and appropriate support for such needs are addressed or neglected in academic settings. The autonomy of individual faculty often makes it surprisingly easy to overlook the personal challenges that they may face. We find that more consistent attention needs to be given to these ethical issues on many campuses. Although some institutions have explicit codes of conduct that prohibit faculty– student romantic liaisons, many leave it up to an after-the-fact disciplinary process that is activated only when there has been a complaint regarding sexual harassment or some form of legal action. We believe that institutions should provide routine opportunities to promote awareness, reflection, and training concerning such matters and make a greater effort to warn and inoculate academics to the ethical concerns and risks surrounding these issues. This is another area in which the culture and climate of the institution and department can have a profound effect on ethical expectations and behaviors. Authorship. Authorship of publications is an area for which boundaries can become confused and lead to ethical problems and interpersonal conflict. The Ethics Code provides clear guidance on matters relating to scholarly publication in Section 8.12, Publication Credit, which states the following: (a) Psychologists take responsibility and credit, including authorship credit, only 252

for work they have actually performed or to which they have substantially contributed. (b) Principal authorship and other publication credits accurately reflect the relative scientific or professional contributions of the individuals involved, regardless of their relative status. Mere possession of an institutional position, such as department chair, does not justify authorship credit. Minor contributions to the research or to the writing for publications are acknowledged appropriately, such as in footnotes or in an introductory statement. (c) Except under exceptional circumstances, a student is listed as principal author on any multiple-authored article that is substantially based on the student’s doctoral dissertation. Faculty advisors discuss publication credit with students as early as feasible and throughout the research and publication process as appropriate. Students can be particularly vulnerable in authorship matters with mentors, and extra care should be given to ensure that they are treated fairly and that their identity and autonomy rights are protected. We find that responsibility for clarifying authorship rests primarily with the faculty member and that clear communication is essential to avoid actual or perceived exploitation in these matters. (More information on authorship questions can be found in Chapter 15 of this volume.) Students as research participants. The Ethics Code also provides guidance regarding student involvement in research participant pools. Standard 8 on research and publication has clear guidance on avoiding harm to students who participate in research. Key areas addressed include the following: informed consent (Standards 8.02, 8.03, and 8.05), students’ choice not to participate and avoidance of coercion when participating in research (Standard 8.04), inducements for research participation (Standard 8.06), deception in research (Standard 8.07), and debriefing of participants (Standard 8.08). The ethical priorities should be to avoid harm to students and undue coercion of students,

Creating Ethical Academic Cultures

who clearly are in a subordinate and vulnerable role when engaged in faculty-driven research. Similarly, psychologists have a duty to keep clear and appropriate boundaries between their teacher and researcher roles and to ensure that the researcher role does not unduly affect the primary education function of the faculty member. The justification for student involvement as research participants is often that they will benefit educationally from the experience. If that argument is made, then it is incumbent on the faculty member–researcher and the academic department to ensure that the benefit is tangible and that the experience does not detract from students’ education goals in a course or program. A well-defined and impartial role for an institutional research board is also critical in this process. (More information on protection of subjects in research can be found in Chapter 16 of this volume.) Relationships among students. Student-to-student relationships also provide opportunity for ethical analysis and practice. Students often are engaged in challenging collaborative work and for a variety of reasons may find themselves in competition or in conflict. As psychologists, we have a responsibility to help them understand these relationship issues in ethical terms and to assist them in applying ethical analysis to resolving conflicts or relationship dilemmas they face. The fundamental tools of conflict resolution and mediation are grounded in respect for each person’s autonomy and in fairness. Attentive faculty often find themselves mediating conflicts among students in and out of the classroom. The skill with which this is accomplished is important in determining the ethical climate of a classroom, research laboratory, and the broader academic setting. Faculty members have a responsibility to model and teach respect for all individuals and for divergent beliefs and to encourage empathy and appreciation for diversity of background, experiences, and values. CONCLUSION In this chapter, we address a broad range of ethical matters that affect psychologists and their students in academic settings. Drawing from a comprehensive framework proposed by Reynolds and Smith

(1990), we have examined the ethical responsibilities of psychologists across personal, professional, and systemic domains of academic settings as they align with the current Ethics Code. We have attempted to clarify the complementary relationship between academic freedom and the professional and ethical responsibilities that psychologists have to each other, their students, and their discipline as well as to others in a university community. Many argue that higher education as a whole has overemphasized academic freedom and autonomy at the cost of a shared responsibility for building cultures that respect the fundamental importance of such principles as beneficence and nonmaleficence, as well as the other fundamental values of the Ethics Code. We have stressed the importance of academic integrity in relation to other ethical responsibilities and attempted to demonstrate that positive approaches to both ethics and academic integrity hold significant potential for enhancing teaching, learning, ethical sensitivity, and ethical action in college and university settings. Our discussion has identified many ways in which personal, systemic, and cultural variables tend to interfere with ethical sensitivity, reflection, and action. Our understanding of the relevant literature suggests fundamental ways in which regulatory approaches to promoting academic integrity and ethical behavior have failed to achieve the important outcomes that most would agree are essential for the success of either our discipline or the larger culture in which colleges and universities function. We encourage academic psychologists to ensure that the departments and programs in which they work have established sufficient opportunities to reflect on their ethical values and on the implications of these values for the cultures and climates in which they function, as well as their core teaching, research, and service missions. Toward that end, we have included a self-assessment checklist (see Appendix 12.1) that identifies four domains related to the development of a positive ethical culture, each with subareas for discussion and assessment. The four domains are (a) institutional context and leadership, (b) department or program practices or processes, (c) student involvement and leadership, and (d) faculty involvement 253

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and leadership. Under each domain is a list of actions or processes that would reflect attention to, or progress made, in achieving goals related to the domains. Each can be assessed on a four-point scale that ranges from “little or no evidence of attention to this area” (rating of 1) to “strong evidence of effectiveness in this area” (rating of 4). No total score is derived as the objective is to create discussion and possibly an action agenda based on the areas assessed. APPENDIX 12.1: BUILDING ETHICAL CULTURES IN PSYCHOLOGY PROGRAMS—A SELF-ASSESSMENT CHECKLIST This checklist can be used to assess your program’s commitment to building a culture that promotes ethical understanding and behavior among students, faculty, and professional staff. Ethical cultures in academic settings go beyond understanding the fundamentals of the Ethics Code (APA, 2010) and focus on the development of a pervasive culture that actively promotes positive ethical values and behaviors. The concepts and practices associated with positive ethics are described by Handelsman, Knapp, and Gottlieb (2002) and Knapp and VandeCreek (2006). The items on this checklist describe practices aimed at promoting a culture and climate of positive ethics. Culture refers to the formal philosophies, values, and commitments of an institution or program that are reflected in its structures and interactions

254

(Schein, 2004). Climate reflects the ways in which individuals experience the department or program and behave on a day-to-day basis. The checklist is not intended to be comprehensive or prescriptive. Rather, it is designed to stimulate self-assessment and discussion that leads to collaborative explorations of ways to promote a positive ethical culture and climate. Under each major area on the list, space is available for you to identify other processes or practices that would support your goals for building an ethical culture. Academic programs and the institutions within which they function have different histories and cultures that could lead them to focus on certain practices or strategies rather than others. There is no single pathway to building a positive ethical culture. Using this format, a rating of 1 indicates you have not yet attended to a particular area or activity. By contrast, a rating of 3 indicates that you have evidence in your policies, interactions, or planning processes that the area or activity is a priority or commitment of your department or university and that progress is being made. A rating of 4 would be given only if you have strong evidence that a particular area is addressed actively on a regular basis and is recognized as important to your success and effectiveness. Keep in mind that the process of building and maintaining an ethical culture and climate is a complex, long-term effort. It is an institutional and program journey in which improvement is desired but perfection may not be realistic, particularly in the short term.

Our program or department has regular meetings of faculty and professional staff where ethics and academic integrity are discussed constructively and recognized as a pathway both to professional development and program improvement. Positive efforts are made to bridge divergent academic and professional views of ethics and academic integrity. Members of our program rely on our ethical values as a framework for making difficult decisions. Important issues and decisions are addressed with transparency and reference to our ethics code and values.

Department or program practices or processes that support an ethical culture

Our institution has affirmed a strong commitment to academic integrity and building an ethical culture across its divisions and programs. Ethics are viewed primarily within a positive, improvement-oriented, rather than a regulatory or punitive, context. Leaders in our institution understand why this is an important endeavor that is essential to our future. Our mission statement and other prominent documents—for example, an honor code, ethics code, or creed—clearly describe a set of values that reflect the ethics and academic integrity of our college or university. Our governing board or council of trustees has demonstrated a strong public commitment to the values reflected in our statement(s). Our chief campus executive frequently emphasizes the importance of our values and ethical commitments. Our values and commitments to ethical behavior and academic integrity are clearly stated in our institutional literature and on our websites. Almost all members of our campus community could readily identify the ethical values to which we are committed and why they are important. Almost all members of our campus community could readily describe the impact of our ethical values and commitments on the quality of their day-today thinking, behaviors, and relationships with others. Other areas that reflect our institutional commitment to building a culture of positive ethics:

Institutional context and leadership that support an ethical culture

Areas assessed this area (1)

of attention to

evidence about this area

Little or no evidence

Unsure or lack

(2)

this area

of attention to

Modest evidence

(3)

this area

progress in

Making good

(Continued)

(4)

in this area

of effectiveness

Strong evidence

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Students recognize that ethics and character development are an important part of learning within our program. Students accept responsibility for behaving in ways that are ethical. The integrity of academic work is a clear program priority that is supported by students. Students play an essential and constructive role in promoting academic integrity. Students play an essential role in processes designed to review violations of academic integrity. Students learn to use ethics as a means of improving their critical thinking and decision-making skills. Students recognize the importance of treating other members of the program and campus community with respect.

Student involvement and leadership for building an ethical culture

When values are in conflict, the issues are usually identified clearly and discussed openly. Our program is committed to the development of student ethics and character as part of its mission. Honesty and trust building are valued in and out of the classroom. Procedures for addressing violations of our ethics code and academic integrity policies are clear and widely distributed. Fairness in evaluation of academic performance and decision making is valued in and out of the classroom. Fairness in evaluation of professional performance and decision making is valued in and out of the classroom. New students are oriented to our values and ethics code as they begin their studies. Newly hired faculty and professional staff are oriented to our ethical values and commitments as they begin their careers. Development of expertise in ethics is assumed to be a part of everyone’s role. Faculty, staff, and students regularly participate in ethics education. The integrity of academic work and research undertaken by faculty and students is a clear program priority that is supported by our program. Other program practices that support a positive culture of ethics:

Areas assessed this area (1)

of attention to

evidence about this area

Little or no evidence

Unsure or lack

(2)

this area

of attention to

Modest evidence

(3)

this area

progress in

Making good

(4)

in this area

of effectiveness

Strong evidence

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Faculty involvement and leadership for building an ethical culture Faculty widely accept and support the importance of ethics and academic integrity as a foundation for our programs. Faculty frequently have meaningful conversations with their students, both in and outside of the classroom, about academic integrity and our program’s ethical values. Faculty generally demonstrate a sense of concern for student well-being and character development. Faculty regularly participate in ethics education programs for themselves. Faculty regularly participate in ethics education programs for students and professional staff. Course syllabi consistently address academic integrity and ethics within the framework of our values and ethics code. Violations of our academic integrity polices are often treated by faculty as an opportunity for student learning and character development. Our ethical values are reflected in student advisement by faculty and support professionals. Faculty have a positive attitude toward helping each other accomplish program goals. Other examples of faculty involvement and leadership for building an ethical culture:

Students accept responsibility for their behavior, both within and outside of the classroom, based on our program and institutional values. Other examples of student involvement and leadership for building an ethical culture:

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Ostroff, C., Kinicki, A. J., & Tamkins, M. M. (2003). Organizational culture and climate. In W. C. Borman, D. R. Ilgen, & R. J. Klimoski (Eds.), Handbook of psychology: Vol. 12. Industrial and organizational psychology (pp. 565–593). New York, NY: Wiley. Pavela, G. (n.d.). Fifteen principles for the design of college ethical development programs. AcademicIntegrity Seminar.com. Retrieved from https://docs.google. com/View?docid=dfdpvzp9_516mkhv8vq3 Rest, J. R. (1979). Development in judging moral issues. Minneapolis: University of Minnesota Press. Rest, J. R. (1982, February). A psychologist looks at the teaching of ethics. The Hastings Center Report, 12(1), 29–36. doi:10.2307/3560621 Rest, J. R. (1994). Background: Theory and research. In J. R. Rest & D. Narváez (Eds.), Moral development in the professions: Psychology and applied ethics (pp. 1–26). Hillsdale, NJ: Erlbaum. Reynolds, C. H., & Smith, D. C. (1990). Academic principles of responsibility. In W. W. May (Ed.), Ethics and higher education (pp. 32–48). New York, NY: American Council on Higher Education and Macmillan. Rocheleau, J., & Speck, B. W. (2007). Rights and wrongs in the college classroom: Ethical issues in postsecondary teaching. Bolton, MA: Anker. Rupert, P. A., & Holmes, D. L. (1997). Dual relationships in higher education. The Journal of Higher Education, 68, 660–678. doi:10.2307/2959967 Schein, E. H. (2004). Organizational culture and leadership (3rd ed.). San Francisco, CA: Jossey-Bass.

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Smith, D. C., & Reynolds, C. H. (1990). Institutional culture and ethics. In W. W. May (Ed.), Ethics and higher education (pp. 21–31). New York, NY: American Council on Education and Macmillan. Snyder, C. R., & Lopez, S. J. (2002). Handbook of positive psychology. New York, NY: Oxford University Press. Tagg, J. (2003). The learning paradigm college. Boston, MA: Anker. Treviño, L., & Brown, M. E. (2004). Managing to be ethical: Debunking five business myths. The Academy of Management Executive, 18(2), 69–81. Vojak, C. (2006). What market culture teaches students about ethical behavior. Ethics and Education, 1, 177–195. doi:10.1080/17449640600950808 Weimer, M. (2002). Learner-centered teaching: Five key changes to practice. San Francisco, CA: Jossey-Bass. Whitley, B. E., Jr., & Keith-Spiegel, P. (2002). Academic dishonesty: An educator’s guide. Mahwah, NJ: Erlbaum. Wiseman, K. K. (1982). Emotional process in organizations. In R. R. Sagar and K. K. Wiseman (Eds.), Understanding organizations: Applications of Bowen family systems theory (pp. 33–46). Washington, DC: Georgetown University Family Center. Yardley, J., Rodriguez, M., Bates, S., & Nelson, J. (2009). True confessions? Alumni’s retrospective reports on undergraduate cheating behaviors. Ethics and Behavior, 19, 1–14. doi:10.1080/1050842080 2487096

CHAPTER 13

NEGOTIATING THE COMPLEX ETHICAL TERRAIN OF CLINICAL SUPERVISION Rodney K. Goodyear and Emil Rodolfa

Despite its overlaps with both therapy and education, supervision is a distinct process and presents unique ethical challenges. One such challenge derives from the supervisor’s range of ethical responsibilities, which are not only to the supervisee, but also to that supervisee’s clients, and even to future possible consumers of mental health services. For this and other reasons, “supervisory ethical decision-making is often more complex than clinical ethical decisionmaking” (Storm, Todd, Sprenkle, & Morgan, 2001, p. 231) and is “highly vulnerable to ethical infractions” (Koocher & Keith-Spiegel, 2008, p. 362). This chapter provides a snapshot of the ethical standards related to supervision, with the assumption that most supervisors intend to behave ethically. But intentions alone are insufficient to ensure ethical behavior given the complexities of the ethical terrain they must navigate: It also is necessary for supervisors to equip themselves with a map that will enable them to anticipate the pitfalls leading to substandard supervision and the paths that lead to the highest levels of supervisory practices. Although this chapter is too short to provide a fully developed map of the terrain, we hope it will identify the more important landmarks. DEFINING SUPERVISION The foundation of helpful, effective supervision rests in its definition and the clarity of its understanding between the supervisor and the supervisee. Bernard and Goodyear (2009) defined supervision as an intervention that is provided by a more senior

member of a profession to a more junior member of the profession, is evaluative, extends over time, and has the simultaneous purposes of helping the supervisee develop professionally in addition to protecting the vulnerable public. This definition of supervision is broad-based and has been employed by the American Psychological Association’s (APA) Committee on Accreditation in an implementing regulation. We note that in other instances psychologists supervise members of other professions or people who are not planning to obtain licensure. We believe the essential elements of the definition of supervision include monitoring the supervisee’s practice of psychology to enhance the supervisee’s professional development and serving the evaluative function of gatekeeper for the profession. Although related, consultation differs from supervision because a consultant does not have the authority of a supervisor, and consultation does not include formal evaluation of the competency of the consultant. The recipient of the consultation can accept or reject the recommendations and is on equal footing with the consultant. Supervision also differs from teaching, although there is a constant element of teaching involved in supervision. A teacher is one of the well-defined roles of a supervisor, but it certainly is not the only role. Additionally, supervision is not therapy, although the supervisor constantly uses therapeutic skills in developing and enhancing the relationship with the supervisee. But supervision’s evaluative component highlights the difference between supervision and therapy.

DOI: 10.1037/13272-013 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Although supervision typically occurs as an essential aspect of an academic or internship or postdoctoral program, supervision also occurs on the job and may be required when a psychologist is disciplined by a board of psychology or an ethics committee. Regardless of the reason for supervision, the goals for the supervisory relationship are to enhance the competence of the supervisee and oversee the services provided to the patient, in essence protecting the patient from incompetent services. It should be emphasized that the supervisor is responsible for the actions of the supervisee and that state and provincial boards of psychology therefore can discipline supervisors who do not appropriately monitor or oversee the assessments and interventions of the supervisee. PREVALENCE AND CONSEQUENCES OF ETHICAL BREACHES Before identifying our supervision map’s landmarks, it is useful first to become familiar with both the prevalence of ethical breaches and their consequences. We begin by addressing those two issues.

Prevalence The few available studies on prevalence offer somewhat differing findings. In their survey of ethically troubling incidents that they or their colleagues had faced in the last year, Pope and Vetter (1992) found that only 2% of the incidents related to supervision. This low proportion needs to be interpreted, though, in light of the sample, which was of psychologists in general (vs. supervisors or supervisees specifically); moreover, the focus of this study was on only the very recent past and so prior supervisory incidents were less likely to be captured in the survey. When prevalence of supervisors’ ethical misconduct has been considered only in terms of sexual misconduct, the rate fortunately has been found to be low. Across-study data are consistent in showing that between 1% and 4% of supervisors have engaged in sexual relationships with supervisees (Lamb & Catanzaro, 1998; Lamb, Catanzaro, & Moorman, 2003; Robinson & Reid, 1985); in the Ladany, Lehrman-Waterman, Molinaro, and Wolgast (1999) study, 1.3% of the supervisees reported 262

sexually related ethical breaches by their supervisors. Even though it is a low-incident activity, the potential harm to the supervisee is of sufficient gravity that the issue needs to remain at the forefront of discussions of supervisory ethics. (Additional discussion of supervisor–supervisee sexual breaches can be found in Volume 1, Chapter 11, this handbook.) The survey by Ladany et al. (1999), however, showed a very different picture of the prevalence of ethical misconduct. In contrast to the Pope and Vetter (1992) study, all respondents were supervisees and a remarkable 51% reported having experienced at least one ethical violation by their supervisor. Ladany (2004) later reported that he had undertaken this study out of concern that ethical codes were limited in the extent to which they spoke to supervision. To remedy that problem, Ladany et al.’s literature review identified 15 supervision-related ethical issues. Each incident that supervisees reported was assigned to 1 of those 15 categories. Beginning with the category having the highest proportion of supervisees nominating incidents (33.1% of supervisees: performance evaluation and monitoring) and concluding with the category with the lowest proportion of rate of nominated incidents (1.6% of supervisees: sexual issues), the 15 categories are as follows: performance evaluation and monitoring of supervisee activities, confidentiality issues in supervision, ability to work with alternative perspectives, session boundaries and respectful treatment, orientation to professional roles and monitoring of site standards, expertise and competency issues, disclosure to clients (e.g., supervisee’s status, limits of confidentiality), modeling ethical behavior and responding to ethical concerns, crisis coverage and intervention, multicultural sensitivity toward clients, multicultural sensitivity toward supervisees, dual roles, termination and follow-up issues, differentiating supervision from psychotherapy and counseling, and sexual issues. The disconnect between actual licensure board disciplinary data and what was reported in this study is striking and hard to reconcile. One possibility is that whereas supervisees have these experiences, they are reluctant to file complaints for fear of retaliation or other reasons. This discrepancy also

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underscores the different ethical lenses that can be applied to behavior. It is possible, for example, that whereas some incidents the Ladany et al. (1999) respondents reported were unprofessional, they would not be an ethical violation when the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010) was the standard (e.g., talking to colleagues about what a supervisee disclosed in supervision might be unprofessional, but it is not prohibited by Ethics Code). As well, we would note that supervisor ethical misconduct is not at the root of every supervisory situation in which a supervisee experiences discomfort. Ellis, Siembor, Swords, Morere, and Blanco (2008) noted, for example, that even though a supervisee who received unpleasant evaluative supervisory feedback might perceive that she or he had been harmed, this would not constitute ethical misbehavior by the supervisor if that feedback was timely and accurate. Gottlieb, Robinson, and Younggren (2007) observed that a trainee’s concept of what is and is not ethical is not yet fully formed. As a result, they may ignore or minimize the unethical behavior of others or too easily take offense at behavior that may be unpleasant but ethically appropriate. (p. 246) In short, supervisees inevitably are attuned to the ethical behavior of their supervisors, even though the accuracy of those judgments may not be accurate. Ironic as it might seem, in some few instances, supervisors are responsible for helping supervisees develop that inaccuracy.

Effects of Ethical Breaches on Supervisees Ethical lapses of supervisors can affect supervisees in at least three ways: damaged relationships with their supervisors, damaged well-being, and damage to the supervisees’ evolving understandings of ethical behavior. Although damage may occur, the transgressions may teach the trainee about ethics as well as the aftermath of an ethical breech, thus encouraging the supervisee to heed the ethical standards of the profession. Damaged supervisor–supervisee relationships. Strong and Schmidt (1970) discussed psychologists’

trustworthiness as a source of their social influence. That influence is possible because trustworthiness predicts the extent to which others will affectively commit to him or her (Colquitt, Scott, & LePine, 2007). But unethical behavior undermines trustworthiness. It is unsurprising, therefore, that a supervisor’s unethical behavior will damage the supervisory relationship, including the working alliance (e.g., Ladany et al., 1999; Ramos-Sánchez et al., 2002). Whereas ethical behavior is necessary for effective supervisory alliances, it alone is insufficient: Supervisors who consistently adhere to the Ethics Code, professional standards, and laws may have poor relationships with supervisees; but supervisors who commit ethical breaches almost certainly will. Moreover, in a training setting, unethical behavior is likely to be noticed, become part of the lore of that setting, and thus interfere with trust building with the supervisor’s supervisees for some time into the future. Damage to the supervisee. Unethical supervisory behavior can harm the supervisees’ well-being (e.g., Gray, Ladany, Walker, & Ancis, 2001; Nelson & Friedlander, 2001) and, as Ellis et al. (2008) claimed, any instance of the supervisor having harmed the supervisee is ipso facto evidence of unethical behavior. Ellis (2001) cited Unger’s (1999) findings to illustrate the extent of some of this harm: “Even though they were not directly asked, 15% of the supervisees reported being traumatized in supervision, 8% reported sexual advances or sexual harassment by the supervisor, and 7% left the field of psychology altogether” (Ellis, 2001, p. 403). In addition, harmful supervision can result in supervisee self-doubt, self-criticism, and anxiety (Orlinsky & Rønnestad, 2005). Problematic as this is, the dilemma is compounded because clients then are put at risk when supervisees behave self-protectively in response to harmful supervision and therefore withhold information about their work from their supervisors (see, e.g., Ladany, Hill, Corbett, & Nutt, 1996). Damage to supervisee’s evolving understanding of ethical behavior. Vasquez (1992) asserted that one of supervisors’ three broad training responsibilities is to impart ethical knowledge to their supervisees (the others being focused on the development 263

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of competence and on personal functioning). Supervisors impart ethical knowledge through the behavior they model and deliberate teaching. With respect to the first, Kitchener (1992) noted that implicit attitudes and explicit behavior of faculty communicate as much as course content about being ethical. . . . Thus, if faculty model unethical behavior it is very possible that the most influential ethical attitudes that students learn will not come from explicit ethics education but from the experiences that they have in other areas of the curriculum. (p. 190) But despite its power, modeling is not by itself a sufficient means to teach ethics (Handelsman, 1986). It also is essential that supervisors deliberately teach, typically through the use of ethicsrelated material that emerges during supervision. In fact, Loganbill, Hardy, and Delworth (1982) identified ethics as one of eight issues or themes they believed characterize supervision content. In his later empirical examination of the Loganbill et al. themes, Ellis (1991) confirmed that ethics do occur as a focus during supervisory interactions. Rodolfa et al. (2005) described ethics as a foundational competency required by all effective practitioners, thus the necessity of supervisor review. What supervisors tell their supervisees about the handling of particular ethical issues should, of course, align with what they model in their behavior—rhetoric should match action—for supervisees quickly will pick up the hypocrisy in “do as I say and not as I do” messages (Barnett, Cornish, Goodyear, & Lichtenberg, 2007). It is of note that problems with the ethical behavior that supervisors modeled accounted for nearly 8% of the incidents supervisee respondents reported in Ladany et al. (1999). In one study on the effectiveness of the ethical training, Housman and Stake (1999) found that supervisees who had experienced sexual attraction toward a client and then discussed it with their supervisors demonstrated greater ethical knowledge; the criterion was their own paper–pencil measure of ethical issues in managing sexual attraction. Because this study was correlational, a possible alternative explanation is that supervisees already had greater 264

ethical knowledge and therefore this was why they had chosen to discuss their sexual attraction with their supervisors. One variant on the use of supervision to teach ethical behavior is notable: Although supervision most commonly occurs during the process of training, supervision also may occur when a regulatory board stipulates that a psychologist must receive supervision as a condition of discipline to retain his or her license to practice. Requiring supervision allows the state board of psychology to monitor a psychologist’s practice, thus protecting the public while allowing a disciplined psychologist to learn from the errors made in the hope that she or he will not commit another violation. In the vast majority of cases, that learning will be about ethical behavior (California Board of Psychology, 2010). SUPERVISION’S ETHICAL TERRAIN: KEY TOPOGRAPHICAL FEATURES We began this chapter by introducing the metaphor of a map, and we hope to provide such a map in the material that follows. Because we are constrained in what we can cover, we will focus only on selected, particularly important topographical features. These features might best be thought of as areas of quicksand that have the potential to draw the supervisor in. Adapted from Bernard and Goodyear (2009), these are supervisor competence, evaluation issues, multiple relationships, confidentiality, due process, and informed consent. Although these topics will be discussed in more detail in other chapters, this chapter will focus on their unique application to supervision. (More information on competence can be found in Volume 1, Chapter 6, this handbook; on multiple relationships in Volume 1, Chapter 9, this handbook; on informed consent in Volume 1, Chapter 12, this handbook; and on confidentiality in Volume 1, Chapter 13, this handbook.)

Competence Competence is a paramount ethical demand for psychologists and this extends as well to their work as supervisors. (More information on competence can be found in Volume 1, Chapter 6, this handbook.)

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This is the point of Standard 2.01, Competence, of the Ethics Code: Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience. (APA, 2010, p. 5) Additionally, Standard 2.05, Delegation of Work to Others, requires supervisors to ensure that their supervisees can competently perform that the tasks assigned to them. For supervisors, this standard speaks to two domains of competence. The first concerns competence in the practice domain and with the particular clientele his or her supervisees are serving (Falender et al., 2004). Both ethically and legally, psychologists can practice, and in turn supervise, only in their area of expertise (see also Tanenbaum & Berman, 1990). Although this point is sufficiently obvious, it is worth noting that psychologists may practice outside their typical areas of competence in emergency situations and when dealing with underserved populations. Supervisees still are learning and so truly are the only practitioners who do not have to be competent to practice. Thus, the supervisor must be competent and carefully oversee the supervisee’s practice. The second competence domain is in the practice of supervision itself. Psychologists behaved for too long as though therapy skills generalized readily to supervision. But now there is increasingly broad acceptance that supervision is an intervention for which professionals should receive formal preparation, including exposure to the current body of knowledge about supervision and the opportunity to supervise under supervision. Pope and Vasquez (2007) stated it well when they asserted that the ethical standard of competence means that a psychologist should no more take on the role of supervisor without adequate preparation than she or he would “improvise hypnotherapy, systematic desensitization, or a neuropsychological assessment” (p. 283). This now is codified, for example, in APA’s accreditation requirements that psychology training

programs (doctoral and internship) provide supervision training. Ellis et al. (2008) provided important empirical support for such requirements in their finding that supervisors who had formal preparation for their role were competent and more likely to be helpful to their supervisee. Training in supervision also is required in many jurisdictions. For example, the California Board of Psychology (n.d.) requires that psychologists who supervise receive 6 hours of supervision training every 2 years. The California Board is seeking to ensure that a supervisor knows the basics about the supervisory process as well as the laws and regulations that impact the process of supervision. But supervisees typically know a great deal more about their supervisors’ clinical competence than they do of their supervisory competence. Kurpius, Gibson, Lewis, and Corbet (1991) suggested, therefore, that supervisors develop a professional disclosure statement that would include information about the training they had received in supervision, during their academic training, and as continuing education. Despite the clear informed consent implications of providing disclosure, our impression is that few supervisors actually do this. Competence to supervise is composed of a number of specific competencies. A workgroup of supervision experts who met at the Association of Psychology Postdoctoral and Internship Centers (APPIC) Competencies Conference (Falender et al., 2004) developed a consensus list of 36 competencies. Later, Rings, Genuchi, Hall, Angelo, and Cornish (2009) elaborated on this consensus statement by asking training directors to rate the importance of these 36 competencies. Importantly, given the purpose of this chapter, of the seven competencies these training directors rated highest, the top rated item concerned competence to provide supervision, two items concerned specific ethical knowledge and values, and a fourth concerned the setting of appropriate boundaries (respective ranks: 1, 2, 3, and 7). Multicultural competence. Of those more specific competencies, multicultural competence warrants highlighting. Multicultural competence in supervision concerns both work with the supervisee and with the supervisee’s clients. These two aspects of 265

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multicultural supervision each were evident in the incidents reported by supervisees in the Ladany et al. (1999) study. Significantly, with respect to work with the supervisee, Gatmon et al. (2001) found that supervisees reported lower satisfaction with supervision when their supervisors did not raise multicultural issues. These researchers also found that when multicultural issues were raised, they were raised by the supervisee. A specific type of multicultural (in)competence concerns supervisors’ racial microaggressions. Constantine and Sue (2007) defined these as “brief and commonplace verbal, behavioral, or environmental indignities (whether intentional or unintentional) that somehow communicate negative or denigrating messages to people of color” (p. 143). From interviews with African American supervisees, they identified seven types of supervisory microaggressions, including, for example, making stereotypic assumptions about Black clients or supervisees or offering culturally insensitive treatment recommendations. But as important as racial microaggression is as a concept for supervisors to understand, accurately identifying instances of it can be challenging, for this requires making attributions about another person’s intentions. It is inevitable, then that there will be some number of false positives. To illustrate: a White person might encounter a surly store clerk and assume that person is having a bad day (or simply is a jerk), whereas a person of color might encounter that same clerk and attribute his or her behavior to racism. Both cases present challenges for supervisors: One challenge is to continue to develop self-awareness about their racial attitudes; the second challenge is to remain open to dialogue with and feedback from supervisees about perceived microaggressions. Regardless of whether the supervisor agrees about the motive for his or her behavior, the supervisee needs to believe it is acceptable to discuss his or her feelings and the supervisor’s behavior and intentions. Inadequate supervision as incompetence. Inadequate supervision is, by definition, incompetent supervision—and therefore, is ethically problematic. Although inadequate supervision may not directly harm supervisees, their training needs certainly will not be met. Additionally, if the supervisee is not 266

supervised adequately, the supervisee’s clients also may not be monitored adequately, which can result in the clients being harmed. From their survey of supervisees, Ellis et al. (2008) found that “an astounding 59% of participants stated that they received inadequate supervision in their current supervisory relationship, in another supervisory relationship, or both” (p. 6). Sample items from the Ellis et al. (2008) measure suggested the nature of inadequate supervision. These statements included the following: I end up supervising my supervisor; Supervision is a complete waste of time; My supervisor does not know what to do in supervision; My supervisor is frequently distracted during supervision sessions; and, My supervisor does not listen to me. (Ellis et al., 2008, pp. 10–11) Inadequate supervision can occur because the supervisor does not have the necessary training or skills to supervise. But it also can occur if the supervisor has the skills but fails then to use them. For example, the supervisor can be distracted, cancel too often, cut short supervision session, and simply not listen. Finally, the ethical problems of having provided inadequate supervision are compounded when supervisors sign off on supervision they did not actually provide. Almost all (92.5%) of the Pope, Tabachnick, and Keith-Spiegel (1987) survey respondents rated that as “unquestionably unethical.” Not only is this behavior unethical, this behavior likely is sanctionable as supervisors are required to attest to the fact that they actually did supervise the hours they are verifying.

Evaluation APA’s Standard 7.06, Assessing Student and Supervisee Performance, speaks clearly about the supervisor’s role as evaluator: (a) In academic and supervisory relationships, psychologists establish a timely and specific process for providing feedback to students and supervisees. Information regarding the process is provided to the student at the beginning of supervision.

The Complex Ethical Terrain of Clinical Supervision

(b) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements. (APA, 2010, p. 10) Evaluation is central to the work of the supervisor and supervisee. In fact, it differentiates supervision from therapy (Bernard & Goodyear, 2009) and should be regarded as a core competence (Goodyear, 2008). Yet supervisors often find the evaluative role difficult. One supervisor participant in the Gizara and Forrest (2004) study commented: “[We’re trained] to be nonjudgmental, to be empathic, to accept individual differences. That whole training and set of values make it difficult to do those opposite things which may need to be done: be pretty critical, judgmental, confrontive” (p. 133). Moreover, supervisors typically will develop a sense of connection to supervisees with whom they perceive themselves to be mentors. This creates what Johnson et al. (2008) termed the “advocacyevaluation tension” (p. 591). Providing negative evaluations therefore can become quite dissonance producing. Perhaps the process of evaluation would be less dissonance producing and the advocacy– evaluation tension would be reduced if the supervisor received training in supervision and actually was competent to provide all facets of supervision. Poorly handled evaluation often is an ethical matter. In fact, the most frequent ethical breach— reported by fully one third of the participating supervisees—in the Ladany et al. (1999) study concerned evaluation. Some of the specific incidents they reported included “supervisor gives little feedback,” “supervisor never listened to my audio tapes,” and “at the end of the semester I was very surprised to find that she was unsatisfied with my work [for] I had never been evaluated or critiqued” (p. 457). Koocher and Keith-Spiegel (2008) asserted that “timely feedback, or lack thereof, lies at the root of many ethical complaints that grow out of supervisory relationships” (p. 359). We reviewed the last four reports of the APA Ethics Committee (2006, 2007, 2008, 2009) and found there had been no complaints in the training-related category of

absence of timely evaluations. In addition, we reviewed the California Board of Psychology Enforcement Activity from 2005 and found there were no complaints in the “Improper Supervision” category over the past 5 years. Although this finding was surprising, perhaps it can be explained by the supervisee’s fear of retaliation or feelings of vulnerability resulting from the power differential held by the supervisor who has the ability to influence future job prospects. But the fact that the Ethics Committee and the largest board of psychology in the United States retains these categories signals that such complaints have occurred. Failure to provide evaluation is an even more serious problem when the eventual, summative evaluation of the supervisee’s work is negative. The supervisee understandably will feel blindsided. This must be avoided. During training, summative evaluations should summarize the ongoing formative evaluations. Two concepts related to evaluation are monitoring and documentation. To develop a sound evaluation, the supervisor must effectively monitor all aspects of the supervisee’s work. Supervisors, who are legally responsible for all aspects of their supervisees clinical work, should have a clear overview of the supervisee’s caseload, should review the supervisee’s client write-ups, and should meet regularly to discuss the supervisee’s clients and professional development. Supervisors and supervisees also must document the status of the supervisee and the process of supervision. Supervisees are both ethically and legally required to accurately represent themselves as trainees to their clients and inform their clients that the counseling services they provide will be reviewed by their supervisor. Documentation of supervision is required by all jurisdictional boards of psychology for licensure as a psychologist or for psychologists who are being disciplined. Possible effects of evaluation failures on future clients. Goodyear (2008) suggested that supervision might be thought of as a three-legged stool in which the legs are monitoring client services, fostering development of the supervisee, and serving as gatekeeper. Each is essential, but the third leg is 267

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least well developed for most supervisors, particularly those with no training in supervision. The professions have what might be understood as a compact with society. In this compact, professions are allowed to self-regulate (e.g., through enforcement of ethical codes and through licensure) in return for the assurance that they will protect consumers through that self-regulation. Whereas we have spoken to the trustworthiness of the supervisor, self-regulation speaks to the trustworthiness of the profession itself. Perhaps the most important role a supervisor can play in the service of that profession-level trustworthiness is that of gatekeeper. Specifically, “There is a specific ethical obligation not to graduate those who because of their incompetence or lack of ethical sensitivity would inflict harm on the consumers whom they have agreed to help” (Kitchener, 1992, p. 190). Probably the most important of the gates that supervisees pass through is that of licensure allowing independent practice. By the time they arrive at this gate, however, they already will have passed through a number of others that occur upon completion of practica and internship. Each supervisee will have been tended by one or more supervisors, so that the typical psychologist will have had approximately eight supervisors during his or her doctoral training (M. V. Ellis, personal communication, August 31, 2006, from data obtained as part of an instrument validation study). With so many supervisors and educators involved, each can become “victim to the misconception that someone else will take responsibility” for closing a gate on an incompetent trainee (Elman, Forrest, Vacha-Haase, & Gizara, 1999, p. 717). Behnke (2005) referred to this as “the promoveatur ut amoveatur principle, loosely translated from Latin as, ‘Let us move this supervisee along in order to have the supervisee gone from our placement’” (p. 90). Johnson et al. (2008) referred to it as the “hot potato game”; Ellis (2001), simply called it “social loafing.” No matter what it is called, it is an abdication of one’s professional responsibility. It may be that each supervisor ultimately believes or perhaps hopes that boards of psychology will close the final gate on an incompetent supervisee, yet boards of psychology base their decisions not only 268

on a national exam and statewide examinations, but also on the word of the supervisors who in passing the supervisee along typically have indicated that the supervisee is competent. Because evaluation is a supervisory competence, we believe that the supervisor-in-training should be provided multiple opportunities to exercise evaluative responsibilities while still under his or her own supervision. Helping a supervisee provide feedback to the supervisor or the training program is a step to develop professionally. Students clearly have less power in a supervisory relationship, yet as they evaluate their supervision and their supervisor, they move from someone with limited power to someone with something to say. Supervisors should help their supervisees speak their mind and provide feedback to the supervisor, which is part of their ethical obligation as they participate in the supervisory process. This, of course, requires both that the supervisee feel safe and that their supervisors will encourage the feedback; conditions that are not always present.

Multiple-Role Relationships Risks of client–therapist multiple relationships forming are reduced by the fact that therapists and clients typically will not have between-session contact. But it is not at all unusual for supervisees to interact continually with their supervisors during the week. For example, in an academic program, a supervisee also may work with the supervisor as a member of his or her research team; in an internship setting, supervisor and supervisee often work together 40 or more hours per week, encountering each other regularly and in multiple contexts. Multiple relationships are virtually unavoidable, then, in many supervisory relationships. Multiple relationships are not, in themselves, unethical. In fact, those who participate in them often perceive them positively. For example, supervisees often will identify their best supervisors as ones with whom they developed personal relationships and socialized (Gottlieb et al., 2007). Problems arise when the supervisee is made vulnerable as a result of the particular additional roles in which she or he is engaged with the supervisor. The clearest example of such vulnerability occurs with supervisor–supervisee sexual relationships.

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Standard 7.07, Sexual Relationships With Students and Supervisees, is unambiguous in stating that such relationships are forbidden. The Association of State and Provincial Psychology Board (ASPPB) also makes the complementary assertion that “the psychologist shall not engage in any verbal or physical behavior with supervisees which is seductive, demeaning or harassing or exploit a supervisee in any way—sexually, financially or otherwise” (2005). It is understandable how such relationships might develop, for people tend to be attracted to those with similar interests and values (e.g., Morry, 2007), and this condition exists in supervision simply by virtue of the common career choice the supervisor and supervisee have made. But two other factors can contribute to the formation of supervisor–supervisee sexual relationships: (a) in supervision, boundaries are not as rigid as in client–therapist relationships, and (b) the knowledge that in a very short time the supervisee will be a professional equal—knowledge that can contribute to further boundary erosion. Supervisor–supervisee sexual relationships are clearly unethical. However, most supervision-related multiple relationships exist in shades of gray. Recognizing this, Burian and Slimp (2000) provided a useful decision tree to help supervisors sort out for themselves the issues related to any particular supervisor–supervisee multiple relationship. They also developed a short quiz to allow supervisors to self-assess risk. Its four questions concern the supervisee’s ability to leave the social relationship or activity without repercussions, the probable impact of the relationship on the supervisee, the probable impact on uninvolved supervisees, and the probable impact on uninvolved students. Similarly Gottlieb et al. (2007) offered a number of helpful questions for supervisors to assess the appropriateness of a multiple relationship: (a) is the relationship necessary, (b) is there potential harm, (c) are there ways to avoid harm, (d) what are the effects on the supervisory relationship, and (e) can the supervisor stay objective? Because a trainee’s understanding of ethics is not fully formed, Gottlieb et al. encouraged supervisors to provide information about boundaries and to clearly understand the laws, regulations, and ethics related to multiple relationships as well as the complexity of these relationships.

They also encouraged supervisors to be alert for initial boundary crossings that may in and of themselves not be harmful but that have the potential to lead to subsequent unethical actions. The dual role of fostering interpersonal competence versus evaluation. One type of potential dual role that is embedded within the larger role of supervisor is that between the supervisor-asevaluator and the supervisor-as-facilitator-ofsupervisee-development. Each role is essential but sometimes conflicting—and when client protection is at issue, the evaluator role always is the priority, even when if it may damage the supervisory relationship (e.g., Burke, Goodyear, & Guzzard, 1998). Psychologists’ work is relational and therefore requires personal awareness (International Union of Psychological Science, 2008), which supervisors work to foster. But as supervisees process personal issues that are affecting their work (e.g., through countertransference, etc.), they can reveal information that would cause the supervisor concern about the supervisee’s work with clients. Supervisors therefore must balance how much therapy-like activity should occur during supervision (see, e.g., Neufeldt & Nelson, 1999). Certainly, supervisors can help supervisees explore personal issues (e.g., issues related to countertransference, blind spots, and so on) that affect their assessment, intervention, and relationship with clients. But, that exploration must be anchored to the work being done with a particular client or clients, versus conducting therapy for the supervisee. A point may come when a supervisor who is exploring personal issues of a supervisee must end the therapeutic exploration (i.e., when the supervisee solely is the focus of supervision rather than the supervisee’s work in relationship and work with clients) and refer the supervisee for psychotherapy. A related, informed consent issue is presented in the 2010 Ethics Code: Psychologists do not require students or supervisees to disclose personal information in course- or program-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychological treatment, and relationships with parents, peers, 269

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and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or professionally related activities in a competent manner or posing a threat to the students or others. (APA, 2010, p. 10) Illfelder-Kaye (2002) noted that this standard poses a challenge to any supervision that would involve attention to supervisee’s personal issues. She noted that the implication, therefore, was that internships that deem attention to personal matters important should note this in program descriptive materials they provide applicants. But it is possible for personal issues to come up in unplanned ways in any supervision and perhaps, therefore, such disclosure should be routine for any training program. We wonder how any supervision over time could exclude the supervisee’s reactions to clients and an exploration of personal history. With that being said, we strongly encourage all supervisors to not only post such a statement, but also to discuss this issue with supervisees at the outset of the training program and during each supervisory experience.

Confidentiality Supervisors, particularly those working within a training program, must clearly state what is and is not confidential. As all psychologists know, psychotherapy relationships have legal standing and ethical requirements to hold confidential information gathered during the professional relationship. Supervisees may believe that supervision is analogous to therapy in this way. Therefore, it is important for supervisors to clarify differences between a therapeutic and supervisory relationship, resulting in limited confidentiality for disclosures by the supervisee. In general, supervisees are not entitled to a confidential relationship with supervisors because of their professional obligations to other supervisors and other administrators in an 270

agency. In addition, supervisees do not have any legal standing related to confidential relationships with their supervisors. As a result, supervisors must clarify for their supervisees what can and will be disclosed to others. We believe it is good practice to discuss with supervisee what and when supervisors will disclose information learned in supervision. And as with all effective supervisory relationships, supervisors should disclosure information judiciously with specific goals in mind (i.e., supervisee evaluations, concerns about performance).

Due Process Unfortunately, some supervisees are unable to perform competently. At these times, it is important for a supervisor to follow due processes that notify the supervisee that problems exist and allow the supervisee to respond. A number of psychologists have provided guidance regarding useful due process policies and procedures. The APPIC (2010) has a number of effective examples of due process procedures on their website. Lamb, Cochran, and Jackson (1991) noted that problematic behaviors in trainees often involved an inability or unwillingness to acquire and integrate professional standards, acquire professional skills, or control strong emotional reactions or other psychological dysfunction that could interfere with professional functioning. Once problematic behavior is identified, Bernard and Goodyear (2009) emphasized the importance of implementing the due process procedures deliberately and thoughtfully. Lamb et al. (1991) highlighted factors that may be useful in determining whether due process procedures should be implemented. These factors include (a) a lack of acknowledgment by the trainee that there is a problem; (b) that the problematic behavior is more than a skill deficit that includes problematic attitudes and values; (c) the trainee’s professional services are negatively affected by the behaviors; (d) the problematic behavior is broadly displayed across a number of areas of professional functioning; (e) the trainee requires a significant amount of attention that, in turn, reduces the amount of attention available to

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provide to other trainees; and (f) the trainee’s behavior does not change as a function of feedback, remediation efforts, or time. These guidelines by Lamb et al. (1991) are useful to trainers and supervisors. Also useful is the Ethics Code Standard 7.06(b) that requires that “psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements.” In addition, licensing jurisdictional regulations require supervisors to oversee the supervisee’s caseload and to intervene if problematic behaviors arise. Jurisdictional regulations are designed to protect the public, and it is the psychologist–supervisor’s ethical obligation to take steps to protect the public if the supervisee is viewed as having skill, knowledge, or attitudinal deficits that significantly interfere with competent performance. Programmatic due process procedures also should correspond well with the organization’s human resource polices and procedures. We encourage supervisors in an organization with human resource departments to avoid creating their due process procedures in a vacuum, but rather to work with their human resource officers to develop a document that meets the standards for the organization. In this way, supervisors will be able to receive support from human resources when due process procedures need to be implemented.

Informed Consent Thomas (2007) highlighted the importance of informed consent as it enhances professional collaboration, establishes an open learning environment, and promotes rapport and trust. For example, the State of California Board of Psychology’s (n.d.) guide to best supervisory practices highlights numerous issues that should be included in the informed consent discussion between supervisor and supervisee. These practices include discussing (a) role induction, (b) supervisory goals, (c) role clarification, (d) job duties, (e) confidentiality issues, (f) emergency contingency plans, (g) when and how evaluation will occur, (h) due process issues, (i) professional boundaries, (j) how conflictual situations will be managed, (k) the delicate balance between supervisee and patient needs, and (l) legal and ethical issues (California Board of Psychology, n.d.).

Both supervisors and supervisees benefit when supervisees have a structure or framework for their upcoming supervisory relationship. Informed consent is related to Standard 7.02, Descriptions of Educational and Training Programs, that states, Psychologists responsible for education and training programs take reasonable steps to ensure that there is a current and accurate description of the program content (including participation in required course- or program-related counseling, psychotherapy, experiential groups, consulting projects, or community service), training goals and objectives, stipends and benefits, and requirements that must be met for satisfactory completion of the program. This information must be made readily available to all interested parties. Although this standard is focused on training programs, the intent is to help students and supervisees make an informed decision. It can be inferred that it is ethical behavior for supervisors to provide supervisees informed consent to help them better prepare and anticipate what they will experience during their supervisory experience; doing so also represents good role modeling.

Supervisory Excellence Throughout this chapter, we have focused on the supervisory terrain and ways to avoid the pitfalls of compromising ethical supervisory practice. It is our hope that supervisors will aspire to go beyond mere competence to become excellent supervisors. But what does it mean to excel as a supervisor? We mentioned the Falender et al. (2004) consensus statement on supervisory competence and the work of Rings et al. (2009) to prioritize those competencies. Rodolfa (2011) expanded on these competencies in his summary of the literature on effective supervision, noting that the primary characteristics of an effective supervisor include the following: ■ ■

■

attending to the supervisory relationship; displaying an open and respectful stance to the supervisee; providing role induction and informed consent; 271

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■ ■ ■

■

■ ■

clearly defining the tasks of supervision; providing a well-defined evaluation process; attending to the developmental level of the supervisee; having a flexible stance regarding the various roles of the supervisor; balancing support and challenge; and coming prepared to supervision.

Rodolfa (2011) also found that the literature supported the importance of having a longer and enduring supervisory relationship and multiple supervisory contacts during the week, as well as supervisors having a coherent theoretical orientation and performing therapy themselves. We add to that list by noting that the effective supervisor also attends conscientiously to the technicalities of good supervision (has detailed informed consent procedures, follows due process carefully, avoids clinically harmful multiple relationships, and so on). A growing body of literature highlights the importance of supervisors encouraging supervisees to care for themselves because of the stressful nature of the work (Shapiro, Brown, & Biegel, 2007). As Adams and Riggs (2008) highlighted, the work of psychotherapy is difficult, and trainees can experience vicarious trauma from their interactions with patients. We believe that effective supervisors not only monitor their supervisee’s practice and professional development, but also inspire their supervisees to do better and to search for knowledge. These supervisors engender confidence yet challenge their supervisees to professionally enhance their competency to practice. And whereas it is unethical for supervisors to provide supervisees with therapy, the ethical supervisor will help supervisees process some of the emotional experiences related to self-care. CONCLUSION Perhaps because supervision has for so many years been regarded as a simple extension of therapy, there has been limited attention in psychology to ethics specific to supervision. Ladany’s (2004) proposal that supervision should have its own code of ethics has merit. But as this chapter has demonstrated, there currently is a relatively large literature on ethics in supervision. 272

Basing supervisory decisions and interventions on ethical standards will create a safe environment where supervisees will have a clear framework within which to explore their professional work and to develop professional competencies. Supervisors should understand their ethical obligations. Doing so will help them develop enhanced supervisory skills to better supervise both their supervisee’s professional services as well as their personal and professional reactions. When supervisors accomplish this, they in turn will better prepare the supervisee for the independent practice of psychology and the public will be better protected. In providing this material, we have focused attention on the landmarks that will help supervisors navigate the supervisory terrain. In particular, we hope we have helped supervisors avoid the areas of supervisory quicksand, which in turn will result in more effective supervisors, more competent supervisees, and a public that is better served.

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friends: A test of the attraction-similarity model. Journal of Social and Personal Relationships, 24, 117–138. doi:10.1177/0265407507072615 Nelson, M. L., & Friedlander, M. L. (2001). A close look at conflictual supervisory relationships: The trainee’s perspective. Journal of Counseling Psychology, 48, 384–395. doi:10.1037/0022-0167.48.4.384 Neufeldt, S. A., & Nelson, M. L. (1999). When is counseling an appropriate and ethical supervision function? The Clinical Supervisor, 18, 125–135. doi:10.1300/ J001v18n01_08 Orlinsky, D. E., & Rønnestad, M. H. (2005). How psychotherapists develop: A study of therapeutic work and professional growth. Washington, DC: American Psychological Association. doi:10.1037/11157-000 Pope, K. S., Tabachnick, B. G., & Keith-Spiegel, P. (1987). Ethics of practice: The beliefs and behaviors of psychologists as therapists. American Psychologist, 42, 993–1006. doi:10.1037/0003-066X.42.11.993 Pope, K. S., & Vasquez, M. J. T. (2007). Ethics in psychotherapy and counseling: A practical guide (3rd ed.). San Francisco, CA: Jossey-Bass. Pope, K. S., & Vetter, V. A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47, 397–411. doi:10.1037/0003-066X.47.3.397 Ramos-Sánchez, L., Esnil, E., Goodwin, A., Riggs, S., Touster, L., Wright, L., . . . Rodolfa, E. (2002). Negative supervisory events: Effects on supervision satisfaction and supervisory alliance. Professional Psychology: Research and Practice, 33, 197–202. doi:10.1037/0735-7028.33.2.197 Rings, J., Genuchi, M., Hall, M., Angelo, M., & Cornish, J. (2009). Is there consensus among predoctoral internship training directors regarding clinical supervision competencies? A descriptive analysis. Training and Education in Professional Psychology, 3, 140–147. doi:10.1037/a0015054 Robinson, W., & Reid, P. (1985). Sexual intimacies in psychology revisited. Professional Psychology: Research and Practice, 16, 512–520. doi:10.1037/0735-7028.16.4.512 Rodolfa, E. (2011, January). Legal, ethical pragmatic supervision. Workshop conducted at the University of Illinois, Champaign. Rodolfa, E., Bent, R., Eisman, E., Nelson, P., Rehm, L., & Ritchie, P. (2005). A cube model for competency development: Implications for psychology educators and regulators. Professional Psychology: Research and Practice, 36, 347–354. doi:10.1037/0735-7028. 36.4.347 Shapiro, S., Brown, K., & Biegel, G. (2007). Teaching self-care to caregivers: Effects of mindfulness-based stress-reduction on the mental health of therapists

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Thomas, J. T. (2007). Informed consent through contracting for supervision: Minimizing risks, enhancing benefits. Professional Psychology: Research and Practice, 38, 221–231. doi:10.1037/0735-7028.38.3.221 Unger, D. (1999, August). Core problems in clinical supervision: Factors related to outcomes. In M. L. Friedlander (Chair), Psychotherapy supervision: For better or for worse. Symposium conducted at the 107th Annual Convention of the American Psychological Association, Boston, MA. Vasquez, M. (1992). Psychologist as clinical supervisor: Promoting ethical practice. Professional Psychology: Research and Practice, 23, 196–202. doi:10.1037/0735-7028.23.3.196

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CHAPTER 14

TEACHING ETHICS: MODELS, METHODS, AND CHALLENGES Elizabeth Reynolds Welfel

When I entered an American Psychological Association (APA) accredited program in 1974, a course in professional ethics was neither required nor available. During the first 3 years of my training, my ethics education consisted of stern warnings during practicum not to discuss clients outside of the office, not to remove client files from the building, and not to have sexual relationships with them. Moreover, my experience was not unusual for psychologists educated in that era or the decades before that. Many reputable graduate programs operated on the good-hearted assumption that applicants to professional psychology programs were well intentioned and that the admissions process was sufficient to screen out both applicants who were not so altruistic and those without sufficient emotional stability to act responsibly (Jorgensen & Weigel, 1973). They also assumed competent ethical practice resulted from brief instruction in basic rules offered in clinical courses or in field placements. These views had been prevalent since the 1950s when De Palma and Drake (1956) reported that most psychology faculty members were disinclined to include ethics training in the curriculum, viewing it as unnecessary, ineffective, or unimportant. De Palma and Drake also found that the prevailing attitude was that ethics could not be taught and that the moral values formed during development were unlikely to change in adulthood. A survey published in 1983 (Pharis & Hill, 1983) showed no abatement in this perspective more than 20 years later. Pharis and Hill also reported that the majority of programs still had no formal curriculum plan for ethics education and that

77% ranked ethics training of average or low priority in the curriculum. Moreover, one third to one half of the students they surveyed had never been asked to think or write about ethical issues in their courses. The current philosophy regarding ethics education could not be more different. Formal training in professional ethics is a prerequisite for accreditation according to the Guidelines and Principles of the APA Commission on Accreditation (2009). These guidelines oblige training programs to include “a clear and coherent curriculum plan that provides the means whereby all students can acquire and demonstrate substantial understanding of and competence in . . . ethics” (APA, Commission on Accreditation, 2009, p. 7). And formal ethics training has been mandated by accreditation standards since 1979. Applicants for psychology licenses also must demonstrate their knowledge of ethical standards to succeed on the Association of State and Provincial Psychology Boards (ASPPB) Examination for Professional Practice because 15% of the items on the exam deal with ethical–legal issues (ASPPB, 2008b). Most U.S. states and Canadian provinces require either a written or oral examination on ethics or jurisprudence (ASPPB, 2008b). Moreover, ethics education is now viewed as a necessity throughout a psychologist’s career in most jurisdictions in the United States. At present, 27 states mandate from 1.5 to 6 hours of continuing education (CE) in professional ethics on an annual or biannual basis (ASPPB, 2008a). Faculty attitudes toward the breadth of ethics education also have changed radically, with virtually all endorsing the

DOI: 10.1037/13272-014 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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position that formal curricula in ethics is an essential component of the development of a competent psychologist (Vanek, 1991; Welfel, 1992; Wilson & Ranft, 1993). In fact, most faculty also acknowledge a personal responsibility to promote responsible ethical decision making in their students, and they see themselves as modeling ethical behavior (de las Fuentes, Willmuth, & Yarrow, 2005). Moreover, the 2002 Competencies Conference in Professional Psychology identified specific ethics competencies for graduates of professional psychology programs (de las Fuentes et al., 2005). (Ironically, though, both medicine and business have produced a more extensive body of research than psychology on the impact of specific approaches to ethics teaching on their students’ ethical knowledge or behavior.) What accounts for this dramatic shift? Several factors have been influential. One of the most obvious is the evidence that admissions screenings have not eliminated psychologists who commit egregious ethical violations from entry into the profession. In fact, psychologists found guilty of serious boundary violations have not been those with dubious credentials but rather have included members of state boards of psychology, officers in professional associations, and scholars with exceptional publication records (Koocher & Keith-Spiegel, 2008; Sonne & Pope, 1991). Moreover, faculty members deal frequently with academically competent students who violate ethical standards in their practicum experiences with clients, typically because of emotional distress or psychological dysfunction (Huprich & Rudd, 2004; Johnson et al., 2008). Additionally, these problems are not resolved before predoctoral internship because internship supervisors frequently encounter trainees with problems that threaten ethical service to clients (Huprich & Rudd, 2004; Welfel, 1992). Another factor important in changing professional attitudes is increased public awareness of professional misconduct, a result of the media’s frequent reports of sensationally egregious violations by mental health practitioners and by medical and psychological researchers. These developments, along with the cultural shift in attitudes toward consumer rights, have prompted many psychology boards to be responsive to public inquires about the 278

conduct of professionals and proactive in identifying psychologists who are acting unethically. For example, psychology boards in the United States typically offer Internet access to information about psychologists’ histories of disciplinary actions and post their complaint forms online. The California Board of Psychology (2011) even makes final rulings against disciplined psychologists available on its website so that anyone with computer access can click on a link to get a detailed description of the misconduct and the action taken against that professional. The simple fact that many psychologists have been threatened with an ethics complaint or legal action has brought ethics to the forefront of the individual psychologist’s consciousness and the agendas of professional associations (Montgomery, Cupit, & Wimberley, 1999; Schoenfeld, Hatch, & Gonzalez, 2001). The literature from developmental psychology that refutes the notion that a person’s view of morality is set by adulthood has had an additional influence on the profession’s stance. In fact, a substantial body of literature has concluded that moral development continues into adulthood and is influenced by educational interventions (Rest & Narvaez, 1994) and that ethical reasoning is improved by instruction during professional training (Bebeau, 2002). Equally powerful in the profession’s commitment to ethical practice has been the growth of the literature on social justice and the role of culture as a major influence in human development and therapeutic endeavors. Culturally sensitive practice has been defined as an intrinsic part of ethical practice (de las Fuentes et al., 2005; Frame & Williams, 2005; Knapp & VandeCreek, 2007). In fact, the profession has linked cultural competence with ethics competence. The Competencies Conference Working Group identified the following as the first competency required of graduates: “to appraise and adopt or adapt one’s own ethical-decision model and apply it with personal integrity and cultural competence to all aspects of professional activities” (de las Fuentes et al., 2005, p. 362). Finally, the literature on positive psychology as a counterbalance to the profession’s emphasis on psychopathology has given birth to a call for more attention to positive ethics, an approach to ethics teaching, research, and professional practice that centers on ethical ideals and values rather than

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rule-following or avoiding disciplinary actions (Handelsman, Knapp, & Gottlieb, 2009). The aim of APA, licensing boards, and faculty and internship supervisors who now so energetically endorse ethics training is to improve professional practice, prevent violations that result from ignorance of ethical standards, protect the public from unethical practitioners, and help psychologists aspire to ethical ideals. These are noble goals with which no one argues. But in this era of evidence-based practice, we must ask, “What evidence is there that ethics courses offered by graduate psychology programs and CE offerings are achieving these goals?” and, “If there is evidence that these general goals are being achieved, do we know which models or methods of ethics education are associated with better outcomes?” In the sections that follow, I describe the current theory and research about ethics education and the models and methods that other educators and I have found helpful. I also present a plan for course content that will help the profession operate on more than good-hearted assumptions about the means to develop ethics competencies. This plan includes possible instructional methods in graduate courses, assignments, readings, and films. The final section of the chapter discusses recommendations for effective design of CE courses for psychologists, and Appendix 14.1 provides a list of ethics texts for professional psychology courses. (A discussion of generic ethical issues in teaching in psychology can be found in Chapter 12 of this volume.) ETHICS TEACHING: LOFTY AIMS AND ACHIEVABLE GOALS To identify appropriate goals and practices for ethics education, we must begin with an understanding of the relationship between knowledge of the profession’s ethical values and the implementation of ethical behavior because it is quite evident that knowledge of the profession’s ethical standards has not inoculated psychologists against violations. The persistence of sexual misconduct as a leading type of violation amply demonstrates that knowledge of the rules does not in itself prevent misconduct—no sensible psychologist accused of sexual contact with a client attempts to defend that action by claiming ignorance of the standard. The work of Rest

(1983, 1984) on the psychological processes underlying moral and ethical behavior helps explain why training is not the panacea for the problem of misconduct and what ethics training can realistically achieve.

Rest’s Four-Component Model: An Organizing Framework for Ethics Teaching According to Rest (1983, 1984), moral or ethical action presumes four processes and all four components must be present for an ethical action to occur. The first component is the recognition of an ethical dimension to a situation, which Rest referred to as ethical sensitivity, defined as the awareness of the implications of one’s actions for the welfare of a client, colleague, institution, or the profession. The recognition of an ethical issue has both a cognitive dimension—I think this is a situation in which harm may be done—and an emotional dimension—I feel concern for the stakeholders here because of the possible harm. Malicious intent or deliberate avoidance of ethical considerations need not occur for one to be ethically insensitive—in fact, much ethical insensitivity is associated with ignorance or lack of reflection. Sometimes, professionals act insensitively because they are distracted from the ethical dimensions of the circumstance by technical or clinical matters (Rest & Narvaez, 1994). For example, when a psychologist fails to ensure that a client has sufficient reading skills to complete a personality inventory or fails to discuss the limits of confidentiality at the initiation of services, he or she is more likely to be omitting that step because of pressures to get on with treatment or testing, or because of ignorance of the need for these actions, rather than deliberately avoiding these steps. This is the “I just didn’t know” or the “I just didn’t think” response. Keith-Spiegel (1977) also noted that most of the ethics violations she encountered during adjudication procedures were not the result of willful disregard of ethical standards, but rather were prompted by ignorance and lack of judgment. Several research studies on Rest’s (1983, 1984) model support the position that ethical insensitivity is found among graduate students and practicing psychologists. In these studies, participants listened to scripted recordings of therapy sessions containing 279

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an ethical issue and answered a series of questions after each recording. Researchers found that between 36% and 70% of participants failed to identify the ethical issue imbedded in the clinical vignettes to which they listened (de las Fuentes, 1995; Flower, 1992; Harding, 1993; Lindsey, 1985; Podbelski & Weisgerber, 1988; Volker, 1984). Interestingly, even when prompted, nearly one quarter of the participants still could not identify the ethical dimensions of the scenarios (Lindsey, 1985; Podbelski & Weisgerber, 1988; Volker; 1984). On a somewhat more encouraging note, when the vignettes included topics with high salience in the profession such as boundary violations and child abuse reporting, participants received higher ethical sensitivity scores. A growing body of research suggests that ethical sensitivity can be enhanced by formal study of professional ethics during graduate studies in the mental health professions, medicine, dentistry, and nursing (Bebeau, 2002; Schlaefli, Rest, & Thoma, 1985), although not all students show meaningful gains. Higher scores on measures of ethical sensitivity have been correlated with instruction that lasts longer than a few hours, that applies ethical standards to specific clinical situations, and that offers students frequent opportunities to practice such application (Bebeau, 2002; Schlaefli et al., 1985). Mere exposure to rules and standards appears to have little relationship to ethical sensitivity, judgment, or behavior. The implications of these findings for teaching approaches in professional psychology are discussed later in this chapter. The second component in Rest’s (1983, 1984) model is ethical reasoning, that is, the ability to weigh alternative responses to ethical issues and determine which responses are most consistent with the profession’s standards and values, not only differentiating ethical from unethical options, but also determining the best of the potentially ethical choices. Reasoning about ethical issues requires more comprehensive knowledge of profession’s standards than ethical sensitivity, but it is inappropriate to assume that ethical reasoning is an exclusively intellectual process. At this point, a professional is asking, “What should I do and what makes one alternative better than the others?” The capacity for ethical reasoning is informed by ethics codes, guidelines for practice, the 280

published literature, and by the individual’s moral sense and critical thinking ability. Maxwell (2008) also stressed that ethical reasoning is informed by a professional’s capacity for compassionate empathy for the stakeholders. Sorting through the options when confronted with an ethical question is typically an unsettling emotional experience. Professionals often feel isolated, overwhelmed, and fearful of doing something wrong (Holland & Kilpatrick, 1991). These feelings worsen when ethical questions can be characterized as ethical dilemmas, circumstances in which it appears that both good and bad may result no matter which alternative is selected. Most ethics instruction is aimed at helping trainees and practitioners resolve questions of ethics in a way consistent with the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010). In fact, ethics education holds considerable promise for helping students navigate the complex intellectual considerations and the powerful emotional reactions to ethical issues in practice. Instruction in models of ethical decision making seems particularly important to help trainees structure their thinking about the issue and plan their response. Unfortunately, though, a professional’s ability to successfully reason about an ethical course of action does not guarantee that he or she will act responsibly. Decision-making models build a professional’s capacity to make responsible judgments, but they do not guarantee the implementation of that judgment. The emotional, social, and cultural components of ethical behavior can never be fully explained or promoted solely through teaching decision-making models or reasoning strategies. Without instruction in decision making, however, the probability that a psychologist will resolve a complex ethical issue in a responsible way is diminished. The third component of ethical action in Rest’s (1983, 1984) model is the motivation to act ethically. The essential question here is, “Will I choose to do that which I have just determined that I ought to do?” Consider the following situation. Case Example 1: The Worried Intern, Part 1 A predoctoral intern in the 1st months of his internship notices that his supervisor

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comes back from lunch each Friday with alcohol on her breath and other signs of mild intoxication. This pattern has held true for nearly 2 months. He has been working hard to establish a good relationship with this supervisor and to give her reason to have confidence in his judgment and therapeutic skills. In their supervisory sessions, the supervisor has been quiet and rather abrupt and tends not to attend much to their relationship, focusing instead on client treatment planning and session documentation. Consequently, the intern is not yet sure how this supervisor feels about his skills or how to characterize their relationship. The intern is troubled about what he has seen of his supervisor’s behavior on Friday afternoons and has consulted the Ethics Code, his ethics text, state rules, and a fellow student from his training program. He has decided that he ought to talk to the supervisor, go to the director of the agency with what he has observed, or contact the training director of his graduate program for advice. He knows that he should protect his supervisor’s clients from a risk of incompetent service and that taking action is ultimately in the supervisor’s best interest as well. Two months of service while inebriated should not be ignored, even if it occurs only 1 day each week. However, he is worried about succeeding in the internship, disruption to his access to clients, the high prestige that his supervisor holds in the agency, the difficulty he may have in changing supervisors, and the potential negative implications reporting may have for his internship evaluations. So, he feels paralyzed to act and experiences as much guilt about doing nothing as worry about the consequences of disclosure. He rationalizes that he will gather more evidence and disclose his concerns once he knows his own position at the agency is more secure, that

is, when he knows other staff members seem to like and respect him and he has a better understanding of the agency and its leadership. What has happened to the intern in this case example is not uncommon; the motivation to act ethically (Rest’s third component) has been compromised by competing values, some honorable (such as not wanting to risk disruption of service to his clients and wanting to be fair and respectful of the supervisor) and some self-interested (such as wanting to avoid conflict and get a good internship evaluation). Several studies have demonstrated that both trainees and licensed professionals sometimes lack ethical motivation even when presented with hypothetical situations such as Case Example 1. When asked what they should do in such situations, both graduate students and practicing psychologists respond in ways consistent with ethics standards, but when asked if they would do that which they have just identified as ethical, nearly 50% of graduate students indicate they would not choose to comply with ethical standards if they actually confronted that situation (Bernard & Jara, 1986). In other words, they would knowingly choose to act in a way that is noncompliant with the standards. The findings for psychologists are somewhat less dismal; approximately one third of those samples indicated that they would not implement what they believe is the ethical choice (Bernard, Murphy, & Little, 1987). In exploring the reasons why graduate students would decline to take the ethical action, Betan and Stanton (1999) found that the level of stress and the type of expectation for the outcome played a significant part in these decisions. Those who felt most anxious about reporting or were pessimistic about the effectiveness of a report were less likely to implement the ethical choice. In another study in this line of research, Smith, McGuire, Abbott, and Blau (1991) queried respondents about their reasons for declining to implement the ethical choice. They found that practical considerations and personal values were the factors that tended to outweigh the ethical action. Smith et al. (1991) also reported that the greatest consistency was found between reasoning and motivation when participants believed the rules 281

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for professional conduct were clear and supported by legal statute or case law—the greater the role of individual judgment for the mental health professional and the greater the level of uncertainty about what the profession expected, the lower the level of willingness to implement the action they had chosen. This finding suggested a lack of confidence in their judgment and a lack of certainty that they would be supported if challenged. Wilkins, McGuire, Abbott, and Blau (1990) reported a similar gap between knowledge and motivation that was unaffected by the closeness of the situation of the research participant to that of the person depicted in the scenario. In other words, the unwillingness to act ethically persisted whether the therapist in the scenario was portrayed as a fellow student or a psychologist in a circumstance far removed from that of the participant. Competing values also influence ethical motivation when students and professionals are conducting research. The pressure to complete a dissertation or to publish to achieve tenure and promotion also may act as a deterrent to implement professional ethical values. The drive to investigate interesting questions also may collide with the duty to protect the rights of research participants or the responsibility to use proper procedures in using animals in psychological research. In still another example, faculty who collaborate with graduate students in research projects may decide to take a level of credit in authorship not merited by their participation in the research because they fear losing their position more than they worry about taking advantage of graduate students. They may rationalize that any level of authorship credit benefits a student but only senior authorship benefits the faculty member. In these situations, scholars are aware of what ought to be done, but they may choose to act otherwise. These findings suggest that ethics educators must look beyond improving students’ comprehension of the profession’s ethical standards and beyond instruction in models of ethical decision making to helping them develop the motivation to act ethically. Training must deliberately address ethical motivation. Josephson (1990) has noted that most people tend to overestimate the costs involved with acting ethically and underestimate the benefits. 282

Addressing this distortion in perspective may reduce the gap between knowing the ethical action and deciding to follow it. Vansandt’s (2002) research has suggested that the ethical culture of an organization affects the willingness of a mental health professional to give ethical values the highest priority. Her findings indicate that if a clinician perceives the work environment to be hostile to ethical action, the professional is less likely to carry out an ethical choice. In a study of the impact of departmental ethical climate on graduate students in counseling and clinical psychology, Kempner (2008) found that departmental climate and faculty–student relationships accounted for a significant amount of the variance in the stress that graduate students experienced. This research suggests that the ethical context and culture of the training program and field placements, as well as discussion of factors inhibiting ethical choices, are important elements in effective ethics training in graduate programs. An ethical climate in a training program also can be enhanced when students are encouraged to help and support each other during their training. It is also clear that training must include attention to students’ values that compete with their motivation to implement ethical choices. Even if a psychologist decides to act ethically, there is no guarantee that an ethical action will be implemented. The fourth component of Rest’s (1983, 1984) model is best described as ethical resoluteness (a term coined later by Betan & Stanton, 1999)—the willingness to see the ethical action through to its conclusion. Rest termed this concept ethical character. Rest identified integrity, character, and perseverance as the individual characteristics essential to the full implementation of an ethical or moral action. Consider the following additional facts in the intern scenario described previously. Case Example 1: The Worried Intern, Part 2 Several weeks later, the intern decides he can no longer ignore the supervisor’s behavior. In spite of his considerable anxiety, he decides to raise the issue in his next supervision session. When he tells the supervisor that he notices

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that she behaves differently on Fridays after lunch and wonders whether she is “focused enough to work effectively” on these afternoons, she reacts with anger, reminding him of her credentials and instructing him to avoid questioning her judgment or capacities in the future. He immediately backs down and reassures her that he intended no offense by his comments. He tells himself that if no other staff members are worried about his supervisor he doesn’t need be so concerned, even though in the subsequent weeks he sees no change in the supervisor’s inebriated state on these afternoons. In the second part of this case example, one can say that the intern lacked the virtues or character traits to stay the course, the commitment to be the kind of psychologist he probably hopes to be (Fowers, 2005; Jordan & Meara, 1990; Meara, Schmidt, & Day, 1996). Virtue is at the heart of ethical sensitivity and the willingness of the psychologist to view ethics as the heart of professional practice rather than a procedural concern that emerges from time to time. Virtue ethics focuses more on who the psychologist is rather than how he or she conceptualizes ethics or manages the accompanying stress. It is important to acknowledge, however, that acting virtuously is not necessarily rewarded and that trainees’ fears about negative consequences of implementation are not unfounded. The media is filled with reports of harm to whistleblowers in other settings; anecdotal reports suggest that psychologists too are sometimes punished for their implementation of an ethical action. In some situations, acting resolutely requires real courage. No published research has explored the relationship between moral resoluteness and ethics education, although clearly this quality is the essential goal of all ethics training. Why would ethics education be so universally endorsed by the profession if it did not hope and expect to train professionals willing to carry out ethical actions even when it is uncomfortable to do so? Using Rest’s (1983, 1984) framework and the available research, it appears that formal training in ethics, whether in graduate school or in CE experiences, has

the best opportunity to promote ethical sensitivity and ethical reasoning. Less evidence exists to identify a direct influence of ethics education on ethical motivation, although it has potential to help students identify competing values and distorted perspectives on the costs of acting ethically and learn how to honor those values and still give priority to ethical values. Ethics education also may foster ethical motivation by guiding students to develop support networks in their work settings to promote an ethical culture in an organization. The scholarship on positive ethics and ethics training as an acculturation process (Handelsman et al., 2009; Handelsman, Gottlieb, & Knapp, 2005) also offers substantial hope for ethics education to improve motivation, although no published research has yet explored their impact on learning and action. These frameworks have the potential to heighten students’ capacity for empathy with clients or colleagues at risk for harm and to increase their ability to take the perspectives of the stakeholders involved. Another advantage of a positive ethics approach is its ability to lessen student anxiety about sharing their competing values with faculty and other students. The perspective changes from worry about saying something that breaks a rule to offering suggestions about how to meet ethical ideals (Gottlieb, Handelsman, & Knapp, 2008). The work of Smith et al. (1991) also has suggested that motivation can be improved when ethical standards and norms are clear and unambiguous and when professionals feel confident in the match between their individual judgment and the profession’s standards. No studies have yet examined how training may affect resoluteness, although it is reasonable to expect that it may be promoted by a focus on ethical ideals. After all, the most common motivation for people to seek careers in professional psychology is to help clients and patients so they can make a positive difference in the society.

The Relationship of Ethics Education to Risk Management It is important to clarify the distinction between instruction in risk management and ethics education. Risk management involves practicing in such a way as to reduce the risk of legal or disciplinary action. Presentations at professional conferences on this topic are well attended because psychologists 283

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frequently worry about being sued (Schoenfeld et al., 2001). Although knowledge about legal risks is important, scholars repeatedly advise that the best way to avoid a malpractice claim or disciplinary action is to know and follow the profession’s code of conduct (e.g., Bennett et al., 2006). In my view (and that of Bennett et al., 2006), it is essential to fully ground risk management training on the ethical values of the profession and to avoid placing the protection of the professional from legal action above the welfare of the client, colleague, or organization. If conducted without a foundation of ethical values, risk management degenerates into a defensive strategy that actually may be counterproductive rather than helpful. Ethics training also includes a substantial aspirational component missing from many risk management approaches. Moreover, risk management approaches tend not to pay sufficient attention to cultural competence issues, an inherent feature of ethical practice in a diverse society (de las Fuentes et al., 2005). Understanding the laws and rules that govern professional practice certainly is a critical component of training, and no competent approach to ethics education should omit such attention. Misunderstanding of legal requirements places psychologists at risk for unethical practice as well as legal action. For example, psychologists who misinterpret their legal duties associated with clients who have the potential for violence against a third party may be at risk of violating client confidentiality without sufficient justification—a serious ethical violation of ethical principles and privileged communication statutes (Pabian, Welfel, & Beebe, 2009). However, laws and rules essentially are reactive to issues— witness the development of the duty-to-protect legislation (Werth, Welfel, & Benjamin, 2009)—and tend to identify only those behaviors that are proscribed or mandatory. They establish an ethical floor, not a goal to which to aspire. Consequently, the major focus of the recommendations for ethics education in this chapter is on ethics training—risk management is a by-product of competent ethics education. PEDAGOGY FOR ETHICS TEACHING Pedagogy to promote the recognition of ethical issues as they emerge in professional practice 284

includes extensive attention to standards and guidelines, attention to aspirational statements of the profession, and a view of ethics as a positive force in practice. This pedagogy also must be grounded in awareness that the process of becoming a professional competent to act ethically is at its root an acculturation process (not an event or set of known facts) that culminates with an ethical professional identity, as Handelsman et al. (2005) have suggested.

Promoting Ethical Sensitivity The promotion of ethical sensitivity includes both instruction in the ethical standards and appreciation of the ordinary moral sense of the students who enter our training programs. Education in the profession’s Ethics Code. A major thrust of ethics education is to familiarize trainees with the current ethical standards of the profession (APA, 2010). Both Vanek (1991) and Handelsman (1986) have reported that instruction in the Ethics Code is the major focus of courses at both the doctoral and master’s levels. Including other guidelines for competent and responsible action published by APA, such as the “Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists” (APA, 2003), is frequently encouraged by ethics scholars (e.g., Gallardo, Johnson, Parham, & Carter, 2009), although no research to date has yet explored how commonly these guidelines are included in course content. Knowledge of the code and related rules is also the exclusive focus of the licensing examination (ASPPB, 2008b) and many CE programs. Clearly, comprehension of these standards and guidelines offers a foundation for building ethical sensitivity and sound ethical judgment. Because, to some degree, the code represents the collective wisdom of the profession about the ethical practice of psychology, thorough review of its contents is crucially important. This review also familiarizes trainees in the early stages of professional development with potential ethical issues they may not have considered intuitively, such as the requirements related to test security or their responsibilities when third parties refer clients for therapy. When attention is paid to the Preamble and

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General Principles sections of the Ethics Code it also acts as the basis for a discussion of ethical ideals and the virtues underlying ethical practice. At a more practical level, it is essential for psychologists to be familiar with the Ethics Code because it is the basis for enforcement in the event that an ethics claim is filed (Fowers, 2005). Challenges in teaching the Ethics Code. Knowledge of the provisions of the Ethics Code does not guarantee ethical sensitivity. The very nature of the language in the Ethics Code makes application of the standards to specific clinical contexts difficult. Codes of ethics have several other limitations that must be taken into account. First, because psychologists work in diverse settings, codes of ethics must be written broadly. Second, because the profession changes rapidly, parts of these codes are outdated almost as soon as they are published. Third, issues emerge in society that the profession did not anticipate when crafting the Ethics Code, such as the controversy about the interpretation of the code when psychologists are involved in interrogation of detainees during wartime (Gravitz, 2009; Kalbeitzer, 2009). In addition, codes are developed within organizations that have other values and priorities, so that the resulting provisions represent what the board of directors can agree to, rather than an ethical ideal. Ladd (1991) suggested another limitation of a code of ethics—it can focus so much attention on the minor issues (such as the permissibility of barter) that it distracts professionals from more fundamental ethical responsibilities (such as the ethical responsibility to promote social justice). Fowers (2005) also noted that there are inconsistencies within the code, places where the provisions of one section appear in conflict with the provisions of another. The most obvious limitation of the Ethics Code for helping professionals make sound ethical judgments is its general language. It does not provide a cookbook for practice and its tenets are not easily applied to complex situations. With few exceptions (such as the prohibition of sexual contact with current clients and their family members), the Ethics Code almost always requires interpretation and data from other sources. This limitation is particularly obvious for clinicians who work with minors. The

Ethics Code offers little assistance in helping them sort out the limits of confidentiality with minors or the degree of assent required to begin treatment. Section 4.02, Discussing the Limits of Confidentiality, and Section 4.05, Disclosures, for example, give little guidance to psychologists trying to decide whether to keep confidential an adolescent’s disclosures about sexual activity. In parallel fashion, Section 3.10, Informed Consent, instructs the psychologist to seek assent with those incapable of providing legal consent and to take the client’s preferences into consideration, but it offers no further direction if the minor is resistant to obviously needed treatment. In other words, in these situations, knowledge of the provisions of the Ethics Code offers limited assistance to the professional attempting to act responsibly. Clearly then, teaching the Ethics Code is a starting point for ethics education, not its termination. All too often, though, ethics training is dominated by a review of the Ethics Code in general terms (Vanek, 1991). This approach is most likely to occur when ethics training represents one topic in a course that focuses on other topics, a format common in nearly one third of graduate programs (Handelsman, 1986; Vanek, 1991). (In its worst manifestation, the instructor shows slide after slide of code sections with brief commentary and information about frequency of violation or relationship to state law but offers little application to the needs of the particular audience. Anecdotal data from participants at CE programs indicate that such a format occurs often in training experiences.) Another peril of a general review of the Ethics Code is the impression trainees get that the code is not a uniquely valuable resource in ordinary practice. When psychologists are queried about the resources they consult when facing an ethical question, referring to the Ethics Code usually is not a professional’s first course of action. For example, Danzinger and Welfel (2001) found that only 31% of mental health counselors in the United States consulted their code of ethics when confronting an ethical question related to managed care. Half of Australian psychologists surveyed reported that their code of ethics was helpful in resolving ethical questions (Sullivan, 2005). McCullah Linder (2002) reported that U.S. psychologists preferred to use 285

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informal networks of colleagues for assistance in resolving ethical questions. Strategies for effective teaching of the Ethics Code. The value of instruction in the Ethics Code can be enhanced in several ways. Application of the code to case examples is the most common and most tested way of promoting ethical sensitivity in psychology and related professions. Cases that are content specific and closely tied to the real and complex situations psychologists encounter in practice appear to be the most likely to be effective in helping students get the practice they need to interpret the Ethics Code’s provisions. The following case examples are useful when tying the Ethics Code to actual practice (Welfel, 2010b). Case Example 2: Beatrice and Diego Beatrice is an eager client who has survived a traumatic youth and is committed to maintaining her mental and emotional stability despite her troubled past. She has been in therapy with Diego (a clinical psychologist) for many months. Beatrice was recently hired by a retail store, and for the first time, has health insurance that will cover the cost of her therapy sessions, provided she is diagnosed with a mental and emotional disorder. Because she no longer qualifies for free service, Diego wants to help Beatrice take advantage of her health insurance benefits. At the moment, however, Diego does not believe Beatrice meets any of the criteria for a mental or emotional disorder. Nevertheless, because Beatrice has a history of depression, Diego uses the diagnostic code for adjustment disorder with depressed mood in the insurance paperwork to relieve Beatrice of the burden of paying for services at a time when she has many other expenses. Beatrice agrees to this arrangement.1

Case Example 3: Inez and Bob Inez, the receptionist in a large community mental health center, approaches Bob, one of the staff psychologists, about joining his support group for people dealing with issues of loss. Inez lost her eldest son to cancer 4 months ago and feels she needs support. Because Inez is a single parent raising three other children, she says she cannot find time for a group outside of work. She suggests that she could take the time the group meets each Wednesday as her lunch hour. Bob consults with the staff and group members and, on the basis of their feedback, agrees to have Inez join the group. He believes the group will be helpful to her and is within the ethical bounds of the profession because it is a structured support group and not a therapy group.2 These case examples demonstrate both the variety of ethics violations that occur and the ways in which some psychologists have progressed from minor violations to serious forms of misconduct. If identifying information is scrupulously excluded, actual cases from past clinical experiences can be used. Legal cases and disciplinary actions also provide fertile ground for realistic scenarios. Knapp and VandeCreek (2004) recommended three legal cases in particular that illustrate the relationship between ethical standards and legal rulings: Tarasoff v. Regents of the University of California (1974, 1976), Jaffee v. Redmond (1996), and Osheroff v. Chestnut Lodge (1985). Public records of disciplinary actions by licensing boards against psychologists also are useful resources. Cases of egregious violations also have their place in ethics training, especially during the initial portion of ethics instruction to highlight the horrendous consequences that can ensue from ethical insensitivity. One particularly valuable case in

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Adapted from Instructor’s Guide: Ethics in Counseling and Psychotherapy: Standards, Research and Emerging Issues (4th ed., p. 99), by E. R. Welfel, 2010, Belmont, CA: Cengage. From WELFEL. eBank Instructor’s Manual With Test Bank for Welfel’s Ethics in Counseling and Psychotherapy, 4th, 4E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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Adapted from Instructor’s Guide: Ethics in Counseling and Psychotherapy: Standards, Research and Emerging Issues (4th ed., p. 81), by E. R. Welfel, 2010, Belmont, CA: Cengage. From WELFEL. eBank Instructor’s Manual With Test Bank for Welfel’s Ethics in Counseling and Psychotherapy, 4th, 4E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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teaching has been the case of Candace Newmaker, the 9-year-old who died as a result of a “rebirthing experience” supervised by a registered Colorado psychotherapist (Crowder & Lowe, 2000). When this case is discussed early in an ethics course, it vividly demonstrates both the importance of ethical sensitivity and the disastrous effects that ignorance of ethical standards has on clients, their families, and professionals. It also illustrates the necessity of grounding treatment decisions in evidence rather than individual whim and the role of law and government in the regulation of professions. Such sensational cases immediately elicit the students’ emotional reactions and reveal the impact of their personal values on their intuitive professional judgments. (An added benefit is that this case immediately removes any prior notion that students had that ethics courses are dry, dull, and unemotional experiences.) Case analysis is quite important in teaching ethical reasoning—more on that point in the paragraphs to follow. Using ethical principles and virtues to promote sensitivity. Sensitivity to ethical issues also may be increased by linking the specific standards in the Ethics Code to the fundamental ethical principles underlying the codes—respect for autonomy, beneficence, nonmaleficence, fidelity, and justice (Beauchamp & Childress, 2009; Kitchener, 1984; Kitchener & Anderson, 2011). Codes seem less legalistic and less removed from the realities of daily practice when the philosophical rationales for their provisions are clarified. This effect is evident when discussing the standards related to informed consent for treatment and competence to practice. The principle of respect for autonomy, for example, (a) helps trainees appreciate why Standard 10.01, Informed Consent to Therapy, is so specific; and (b) offers trainees guidance about handling other aspects of informed consent not explicitly included in that section. The ethical principles also support professionals who are attempting to reconcile sections of the code that appear to offer conflicting courses of action. They also clarify the reasons behind

the frequent use of words like feasible and reasonable. Consider the following case. Case Example 4: Bennett Bennett enters therapy a few days after he has been robbed and mugged in his own home. He is in pain from his injuries and is still suffering from severe anxiety. He is frightened to be alone at any time, refuses to stay at home after dark, and will not enter his home during the day unless he is with someone. At the time he made the appointment with Dr. Dennis he told the secretary that he would “sign anything” and “do anything” to get treatment right away. When the psychologist begins discussing informed consent, Bennett interrupts and says that he really needs to talk about his problems and that he agrees to all of that and will just sign the paper. Dr. Dennis insists that they spend at least the next several minutes discussing the basics of informed consent. Bennett reluctantly agrees but complains to the receptionist after the appointment about his rigid therapist and asks to see another therapist for his next appointment.3 Relating ethical principles to specific cases such as Case Example 4 provides students with a framework for sorting out ethical issues that did not exist when the Ethics Code was written—the ethics of having a presence on a social networking site, for example, or the ethics of accepting corporate funding for training or research. Film and other media offer additional approaches to heightening sensitivity to ethical issues during training. Schoener (2008) has identified a number of excellent popular and professional films and television productions that highlight subtle and complex ethical issues for mental health professionals. Gabbard and Gabbard (1999) also have published a resource that explores more broadly the

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Adapted from Instructor’s Guide: Ethics in Counseling and Psychotherapy: Standards, Research and Emerging Issues (4th ed., p. 64), by E. R. Welfel, 2010, Belmont, CA: Cengage. From WELFEL. eBank Instructor’s Manual With Test Bank for Welfel’s Ethics in Counseling and Psychotherapy, 4th, 4E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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use of film in psychiatry. These media can be useful both in initial training of graduate students and in CE experiences. They heighten sensitivity to issues of egregious violations of professional standards and more subtle boundary extensions, misjudgments, and rationalizations. Exploration of the student’s ordinary moral sense. Trainees in graduate programs come to us with a set of moral values and experiences that form the foundation of their response to professional ethics. After all, people make moral decisions and carry out moral (or immoral) actions with great frequency in their daily lives: They decide whether to honestly report their income on tax forms, whether to be truthful to their partners about incidents of infidelity, or whether to return an overpayment to the cashier at the market. Some of their decisions are rooted in the moral values they were taught during development, some come from social and cultural norms, and others come from personal experience. Of course, framing these actions as the result of conscious decision making is misleading because they often are intuitive responses and are not consciously chosen. Sometimes people know they are acting immorally but rationalize the behavior or feel powerless to stop themselves. Such behaviors are especially likely when people experience stress. Other actions occur without any awareness of their ethical and moral implications, exemplified by many instances of unconscious racial, gender, or age bias. In short, our students are not blank slates upon which to write the ethical values of the profession. Indeed, at times their personal values make identification with the profession’s values difficult, as happens when a student’s deeply held religious beliefs about homosexuality appear at odds with the profession’s stance about the rights of individuals of all sexual orientation. These facts suggest that we need to do more than explain professional standards to foster ethical behavior. We must not only meet students where they are but also view ethics education as an acculturation process not limited to a single course, activity, or time period (Handelsman et al., 2005). The fundamental task is to help students develop an ethical professional identity (and in continuing ethics education, to assist them in updating 288

that professional identity to keep it consistent with current professional values). Handelsman et al. (2005) applied the acculturation model of Berry (2003) to professional psychology, identifying four strategies that trainees seem to use as they attempt to connect the culture of psychology with their prior cultural identities. Using this model is one way to meet students where they are—that is, to mesh ethics education with their preexisting ethics culture. The most adaptive of these strategies is integration, defined as the retention of important aspects of a person’s preexisting ethical culture while adopting the ethical culture of psychology. When students use this strategy, they adapt and refine what was preexisting, shedding incompatible parts but trying to integrate past and present ethical cultures. In the middle of the continuum of positive adaptation are the strategies of assimilation and separation. When assimilation occurs, the trainee rather rapidly discards prior cultural values while embracing the values of the profession. Handelsman et al. (2005) suggested that this strategy may occur when a trainee is focusing on the trappings of the profession—on being a psychologist, rather than on doing what psychologists do to assist those they serve. It seems as though assimilation does not ground the cultural values of psychology in the personal identity or values of the individual. The student sees no relevance of their personal values to the practice of psychology. Implied in this strategy is a superficial examination of the values of the profession or the prior values of the individual, and it is this superficiality of the process that is problematic for an enduring or mature adherence to professional values. The other strategy in the middle of the continuum is separation, the opposite of assimilation. The commitment to prior cultural values is so strong that the trainee refuses to identify with the ethical culture of this profession. The student seems to believe that the prior ethical culture is sufficient to navigate the ethical responsibilities of their new profession. I remember one former high school teacher in a graduate program who was unwilling to consider keeping confidential the disclosures of college students about sexual assault. She was so strongly committed to the belief that perpetrators should be held accountable and that

Teaching Ethics

survivors had a responsibility to report the crime that it took extensive discussion before this student would consider the ethical value of confidentiality even about a past crime. The last strategy of acculturation is marginalization, a low identification with both prior cultures and the culture of the profession. When this strategy is dominant, the trainee views ethics as a matter of personal convenience or practicality rather than of ethics or values. Therefore, Handelsman et al. (2005) saw this strategy as the most worrisome because ethics can be discarded when inconvenient or contrary to self-interest. When ethics education is framed as a process of acculturation, we are necessarily taking into account students’ “ethical sources” (Tjeltveit, 2006) and paying respect to their histories and personal values. Unfortunately, no standardized measure to assess ethics acculturation status is available, so the assessment of ethical culture may need to be inferred from statements in class discussions and written assignments. The recommendations of Gottlieb et al. (2008) are helpful in assessing ethics acculturation and progress in the development of an ethical professional identity. Similarly, Anderson and Handelsman (2010) have offered additional recommendations for applying the acculturation model to ethical training. Bashe, Anderson, Handelsman, and Klevansky (2007) suggested that the ethics autobiography has particular relevance to assess acculturation status and to assist in the reflection necessary to promote an ethical professional identity. According to Bashe et al. (2007), an ethics autobiography challenges students to reflect on their personal ethical histories and values and their current understanding of the ethics of the profession. The goal is to encourage students to identify how their own backgrounds and beliefs support or conflict with the values of the profession. These authors cite several questions to facilitate this exploration, such as the following: ■

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What is your idea of right and wrong personal behavior and where does this come from? What are three personal needs that you think might match well with the profession? What are three personal needs that you think might conflict with the profession? (Bashe et al., 2007, p. 62)

Bashe et al. (2007) also suggested that this exercise be used not only as an initial experience in ethics training, but also as a record of changes in ethical perspective as students proceed through their graduate program. When supplemented by discussions with other students and faculty, the relationship between the student’s ordinary moral sense and the profession’s values becomes even clearer. VandeCreek (2005) has recommended the use of the Ethical Position Questionnaire (Forsyth, 1980) to assess and illustrate to students the variety of ethics’ ideologies that students bring to the study of professional psychology. The instrument is scored on two dimensions, realism and idealism, resulting in a 2 × 2 classification. VandeCreek (2005) explained that students typically score in each of the four quadrants and that this variability results in a fruitful discussion of the complementarity or contrast of each ideology with that of the profession.

Additional Avenues to Promote Sensitivity Several other recommendations for ethics instruction also may be helpful in promoting ethical sensitivity. The first is the strengths and weaknesses exercise in which students are asked to identify the assets they view as their greatest strengths in becoming an ethical psychologist and then to describe how these characteristics may operate in some circumstances as their greatest weakness (Bashe et al., 2007). Bashe et al. (2007) suggested that such an exercise deepens ethical awareness and helps trainees appreciate how virtues such as great compassion for a client’s suffering may carry with it the risk of a boundary violation. The second instructional tool Bashe et al. (2007) mentioned is the use of ethics rounds. This method parallels the case conference insofar as it asks students to discuss or simulate an ethical dilemma they already have experienced and explain their approach before ethics training. Bashe et al. (2007) have found this method helpful in demonstrating to students how their personal ethics relates to professional ethics and how their personal ethics compares with that of others in training. In many ways, what these authors are suggesting with the use of ethics rounds and shared ethics autobiography with peers as well as the instructor is the transformation of individual participants in a course 289

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(or program) into a community of learners for whom cooperation, not competition, is the means of achievement. The term community of learners originated in the literature on teaching and learning in elementary and secondary education, but it has application to instruction in higher education as well (see Rogoff, Matusov, & White, 1996). Gottlieb et al. (2008) referred to this aspect of these methods as creating a social and supportive climate for trainees. One aspect of the community-of-learners model that may help new students feel safe in exploring their ordinary ethical sense is the use of cross-level peer interactions. In this activity, students at more advanced levels of training lead or participate in the discussion of cases with 1st-year students, removing the need for the faculty member to facilitate such discussion, and thereby rendering the atmosphere for honest disclosure of current views less threatening. Another more pedestrian way in which I encourage students to feel comfortable in presenting their own ideas even if they conflict with mine is to surprise the first student brave enough to disagree with me (the author of the text they are using) with a bonus point toward their final grade. My goal with this tool is to highlight that the purpose of the course is to encourage independent thinking and open expression, not rote following of the Ethics Code or recitation of the instructor’s views. Another useful approach is Plante’s provocative statements exercise in which students debate a controversial statement about professional ethics, with half taking the affirmative argument and half the negative argument (Plante, 1995). One interesting example of such a statement is, “Since so much professional misconduct revolves around boundary violations, the profession ought to prohibit all kinds of multiple relationships with clients.” This exercise may be productively employed not only to promote sensitivity and build the student’s awareness of their own values but also to develop ethical reasoning. This exercise closely parallels the one developed by Don Bersoff and described in VandeCreek (2005), the Shibboleth Shakers exercise. In this exercise, students are asked to develop arguments related to what he called “sacred cows,” such as “there should be no exceptions to confidentiality” or “mandatory reporting laws for child and elder abuse do more 290

harm than good” (VandeCreek, 2005, pp. 1–2). Returning to the same question at various points in training would assist the student (and faculty) in evaluating the development of a professional ethical identity. Haverkamp (2008) has used a project in which students have the freedom to identify a major ethical issue they believe they will face in their future professional lives and then develop a unique action plan that they expect will help them develop the competence and confidence to work responsibly. This project includes multiple facets that attempt to engage the student in a process of reflection, research, contact with psychologists in the community, and selfassessments at the initiation and completion of the assignment. The range of topics students have chosen is broad, from ethical practice with suicidal clients to ethical collaboration with other health care providers to responsible practice in rural settings. Such an approach not only attends to ethical sensitivity but also is poised to foster mature ethical reasoning and motivation to act responsibly as the action plan develops.

Clarifying the Complexity and Subtlety of Ethical Issues in Practice No client, colleague, or supervisor ever announces that he or she is about to present us with an ethical issue. Ethical issues that arise from interactions with clients typically are embedded in lots of other information and concerns. As Rest (1984) has suggested, clinicians seem to be easily distracted from ethical issues (particularly subtle ethical issues) by complex clinical factors, worries about making an appropriate diagnosis, and related contextual characteristics. Therefore, instruction to promote ethical sensitivity must include cases, simulations, and other examples with sufficient complexity and representativeness of actual practice if it is to be effective. These examples must resonate with authenticity. Case examples, test questions, and class exercises that are limited to obvious violations or clearly ethical practice have limited value. Students need practice in recognizing ethical issues in circumstances that mimic ethical practice as closely as possible. Assigning students the task of interviewing practitioners about the ethical dilemmas they have experienced or inviting

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seasoned psychologists to provide guest lectures in courses are helpful strategies to alert students to potential signals of an ethical issue in practice. Such an activity is especially valuable in informing students about ethical issues in research because many new graduate students have had little prior exposure to research with client populations. Students appear to want ethics training to incorporate these experiential components. Fagan, Ax, Liss, Resnick, and Moody (2007) found that nearly half of the students they sampled (46.7%) disagreed with the statement that their training experiences contained “just the right mix of classes/didactic experiences and hands-on experiences” (Fagan et al., 2007, p. 18). Taking ethics education beyond the single-course approach. Ethical sensitivity probably will not be fostered if discussion of ethical issues is limited to a single required course in the curriculum (Gottlieb et al., 2008). Ethical dimensions of diagnosis, individual and multiple person therapies, supervision, consultation, research, and teaching must be incorporated in the instruction throughout the curriculum and in practica and field placements. Ethics topics should be represented on comprehensive examination questions as well. Even more important, though, is the commitment to ethical values that faculty display in their interactions with students, administrators, field supervisors, and each other (Kitchener, 1992). Students who experience faculty who do not act in compliance with ethical standards in their relationships with them or others are more likely to judge some unethical practices as acceptable (Moore, 1999). On the converse side, programwide commitment to ethics appears to reinforce the development of an integrated ethical identity in students and their endorsement of the aspirational components of professional ethics. Educating students with a positive ethical identity also requires faculty to respond fairly and consistently to students whose actions are inconsistent with ethical standards (Kitchener, 1992). Policies and procedures for responding to questions about student misconduct must be clearly communicated and enforced. Students who experience peers whose misconduct is ignored or inappropriately handled by faculty and supervisors are being taught that

in practice, ethical standards are merely window dressing and need not be fairly or fully enforced. Interdisciplinary models for teaching ethics may be useful to strengthen instruction in professional ethics; inclusion of philosophy faculty members and instructors from other health care professions offers students both a perspective on the philosophical roots of the profession’s ethical stance and a view of how related professions analyze and respond to ethical issues in health care. In short, if we are to help trainees develop the sensitivity to appreciate the scope and centrality of ethical issues to competent and compassionate professional practice, we must begin with their ordinary moral sense and prior experiences and use an experiential, respectful, and comprehensive approach to ethics education with faculty and supervisors who embody the best the profession has to offer (Gottlieb et al., 2008; Welfel, 1992). Psychology faculty also must recognize that teaching an ethics course ideally requires a faculty member who is a scholar in professional ethics, one who has both research and teaching interests in the topic. At the least, those instructors should be thoroughly versed in the scholarship on professional ethics and conversant in the philosophical literature on which psychology’s ethical standards and values are grounded. One of the inherent difficulties in an approach to ethics training as a portion of other courses is the low probability that each of those instructors has extensive knowledge of the ethics literature.

Promoting Ethical Reasoning Ethical reasoning requires a capacity for critical thinking, a structure for analyzing ethical issues, and a plan for managing the distress ethical issues often engender. Although it is reasonable to expect that graduate students in psychology are capable of critical thinking, it is important to help them appreciate that ethical issues frequently demand that they think critically and analytically. One of the disadvantages of ethics teaching that primarily revolves around a general review of the provisions of the Ethics Code and guidelines is that this method does not imply that critical thinking about ethics is necessary. Instead, general review gives the impression that quick reference to the Ethics Code is all that is required. Two 291

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methods are widely used to teach students to apply their critical-thinking skills to ethical questions: instruction in ethical decision-making models and application of those models to case examples. Instruction in decision-making models. Many decision-making models have been presented in the professional literature and many of them are likely to be suitable for use in ethics courses (a full discussion of these models can be found in Volume 1, Chapter 4, this handbook). Models that include (a) attention to the sociocultural context of the decision making, (b) a plan to refer to ethics scholarship, and (c) appreciation of the role of competing values and emotional aspects of decision making are especially helpful. It is important that the model be practical for use in the settings in which students are likely to work or it will be discarded once the course has ended. Engaging students in the process of comparing several models and selecting the one they find most helpful may foster better reliance on the model for the long run. Such an activity also promotes the social and supportive atmosphere so essential for effective ethics education and can initiate the application of critical-thinking skills to ethics issues. Once a decision-making model is chosen for instruction, a faculty member ought to offer students extensive practice in applying the model to a variety of cases. Following are sample cases I include that have proven sufficiently realistic, complex, and engaging to provide helpful practice (Welfel, 2010b). They are designed to be ethical dilemmas involving professionals who are hoping that they are doing good work or who are unaware of the ethical dimensions of the situation. They also represent ethical issues about which reasonable professionals may have some disagreement and do not necessarily include a psychologist who has violated any ethical standard. The scenario for Dr. Francine illustrates the ethical issues in research and the competing values that may operate in that context, and the case of Jeremiah and Glen also has legal dimensions. (Additional cases for use in teaching ethical reasoning can be found in Welfel, 2010b.) Case Example 5: Dr. Francine Dr. Francine, a faculty member in a clinical psychology program, must 292

publish original research to be given tenure. She conducts one study using a standardized test of verbal reasoning. When she analyzes the data, she finds that her results are less than one 100th of a point away from statistical significance. In reviewing the data, Francine realizes that if the score of one participant in the research changed just 1 point, the result of the hypothesis would have been statistically significant. Because it is quite possible that at least one participant’s true verbal reasoning score is at least 1 point higher, she changes the score by 1 point and publishes the results as statistically significant. Case Example 6: Jeremiah and Glen Jeremiah is treating a 15-year-old boy named Glen. The boy’s stepmother initiated therapy primarily because she was concerned about the boy’s immaturity and lack of emotional expression. She wanted to be sure that Glen did not have depression. Glen’s mother died when he was 10, but in his stepmother’s and father’s opinion, the boy didn’t seem to go through a normal grieving process or deal with his feelings of loss. His father remarried 6 months ago. The blended family seems to be going rather smoothly, to their surprise, but Glen still acts more like a fifth grader than a teenager and has few friends and little interest in making friends. The parents thought counseling would help, and Glen agreed, though he was not enthusiastic. At the initiation of services Jeremiah explained informed consent to the family, and the parents agreed to confidentiality for Glen’s sessions. One day the parents came to Jeremiah’s office (without Glen) and showed him Glen’s diary from the time when his mother died. They found it accidentally when cleaning the attic and read it. They brought it to Jeremiah because they think it might be

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helpful in counseling. Jeremiah agreed and read the diary. He found some useful information that he believes made him a better counselor for Glen. Jeremiah never told Glen that he or Glen’s parents read the diary.4

Using Cases to Enhance Ethical Reasoning The value of these example cases can be enhanced by focused questioning based on the decisionmaking model. Here are some helpful questions to stimulate complex reasoning based on my model (Welfel, 2010a): ■

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What is your immediate, intuitive response to the psychologist’s actions? Do you think your intuitive response matches the profession’s view of whether the psychologist acted ethically in the case? What facts of the case seem especially relevant and what other information would you find helpful in determining the ethics of the psychologist’s actions? What is the psychologist’s responsibility to each of the stakeholders? Which takes priority? What contextual and cultural variables should be considered in your ethical decision making? Does the Ethics Code address this issue? What other resources help identify ethical actions? What actions do you think are most consistent with the current Ethics Code and ethics scholars? Encourage the creation of more than one ethical option, whenever possible. Which option do you think is best? What is the basis for that judgment? What difficulties might emerge if the professional implemented that ethical course of action? Or any of the other courses of action you have identified? Are their legal dimensions to the case? If so, how do they affect your ethical judgment? If the professional recognizes an ethical error after it occurs (i.e., the next day or the next week), what should he or she do next?

When applying a decision-making model to cases it is crucial to instruct students to brainstorm multiple possible resolutions and to ask them to examine what difficulties may appear in applying each possible resolution to the case. Varying specific facts and contexts also demonstrates the importance of attention to the details of the situation. The following case illustrates how varying the facts of the case may influence ethical judgment and the role of emotion and contextual factors in decision making. Alternate wordings are shown in parentheses. Case Example 7: Elana Elana is a 25-year-old doctoral student in organic chemistry at a major university in the United States. She is in the second semester of her program. She has come to the University Counseling Center at the recommendation of a fellow student who noticed how unhappy Elana seemed. Elana is a married international student from Saudi Arabia (is a married student from Montreal, Canada). Her husband is a doctoral student in computer science at the same university. They are planning to return to Saudi Arabia (Canada) when they complete their studies. Elana tells the psychologist she sees that she has come to counseling because she needs help coping with a very difficult situation. Her major advisor, a man renowned in organic chemistry, told her that if she wanted to complete her degree successfully, she must sleep with him. He stated that she could refuse, but if she did, he’d see to it that she failed his courses and as his research assistant. This would mean failing the whole program. Elana felt she had no choice but to comply and met him at a local motel a week ago. The experience was even worse than she feared, and she does not know how she is going to cope

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Adapted from Instructor’s Guide: Ethics in Counseling and Psychotherapy: Standards, Research and Emerging Issues (4th ed., p. 53), by E. R. Welfel, 2010, Belmont, CA: Cengage. From WELFEL. eBank Instructor’s Manual With Test Bank for Welfel’s Ethics in Counseling and Psychotherapy, 4th, 4E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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because he said he wants to meet her there every week or so from now on. She cries many times each day, has trouble sleeping, has lost her appetite, and has difficulty expressing affection for her husband, who knows nothing about what has happened to her. She feels lonely and isolated and has disclosed these events to no one else. Elana asks her psychologist if she can have weekly sessions to help her prepare for or recover from her meetings with this man. She says she has no choice but to continue to agree to his demands because failing or dropping out of the program is just not an option. She also says that telling her husband would be disastrous. Elana asks the psychologist to keep this information confidential and she assures the psychologist that she is not suicidal or homicidal. The psychologist sees no other evidence of violence to self or the professor. (Elana is the second graduate student you have seen in the last year who has disclosed sexual harassment from this chemistry professor—that student refused the advances and withdrew from the program.)5 Case Example 7 has merit as a means of revealing students’ prior ethical cultures, their ordinary moral sense, and the influence of their personal histories on their intuitive ethical judgments. Thus, it can be used either as an initial exercise to promote ethical sensitivity or as an assignment to promote critical thinking about professional practice. To varying degrees, Case Examples 5 through 7 offer instructors an avenue into discussing the emotional aspects of ethical decision making because they bring to life the impulse to avoid, repress, or rationalize during the decision-making process. These cases highlight the tension and frustration that often emerges when cases do not have simple ethical solutions and when the profession does not speak with a unified voice on the ethics of an action. 5

They also illustrate how insufficient intuitive judgments can be in coming to a satisfactory resolution of an ethical question. Varying case content from psychotherapy issues to training issues and research issues also assists students in appreciating the complexity of ethical issues. These cases are versatile insofar as they can be used as mechanisms for class discussion and for evaluation purposes. In my courses, I use case analysis using a decision-making model as a major evaluation procedure instead of midterm or final examinations. I also allot more than half of the course grade to a student’s performance on the application of an ethical decisionmaking model to complex cases in keeping with the evidence that suggests the application of standards promotes knowledge and reasoning skills.

Additional Teaching Tools to Promote Ethical Reasoning Johnson and Corser (1998) described a method for conducting a mock ethics hearing and discussed its potential merits, including accentuating the complexity of ethical issues in professional practice and increasing students’ appreciation of the real effects of unethical practice. They also suggested that a mock ethics hearing provides a more extended processing of a case and lively group interaction. Because students act out the various roles, they also experience the intellectual challenges and distress inherent in each role. I use real complaints from the state board website and develop fictional case scenarios that parallel common issues before the board. One case I have found useful involves a psychologist who has testified in a child custody case on behalf of his psychotherapy client, but in the course of responding to the opposing attorney’s questions, he goes beyond the scope of his knowledge by offering a comment on the parent he did not interview or see in treatment. The students take the roles of the board members conducting the hearing, the psychologist charged with the infraction, and the client making the complaint. Each prepares for the hearing and participates in ways that loosely simulate what might happen in a hearing. After the hearing, the mock

Adapted from Instructor’s Guide: Ethics in Counseling and Psychotherapy: Standards, Research and Emerging Issues (4th ed., p. 34–35), by E. R. Welfel, 2010, Belmont, CA: Cengage. From WELFEL. eBank Instructor’s Manual With Test Bank for Welfel’s Ethics in Counseling and Psychotherapy, 4th, 4E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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board adjourns and makes a decision on disciplinary action, based on the actual state rules and the Ethics Code. (If the class size is sufficiently large, I assign two boards that both question the psychologist in the hearing and then separately decide on disciplinary action. When boards come to different conclusions about discipline, then the group debates the advantages and disadvantages of each outcome.) The group debriefs about the process, with each participant sharing his or her experience. This simulation dramatically reveals not only the intellectual challenges to deciphering exactly what has happened, but also the high emotion associated with an ethics complaint for all the stakeholders. Colby and Long (1994) have suggested adding to the realism of the hearing by inviting an administrative judge to lead the proceeding and conducting the hearing in a real courtroom. This exercise is best suited to a class meeting toward the end of the course. Levine and Pinsker (1994) recommended allowing time that extends beyond the usual length of a class period to maximize the value of the experience. If a lengthy hearing is not feasible, a guest lecture from the ethics investigator from the state board may provide some of the same instructional benefits. A third teaching strategy useful in promoting ethical reasoning involves the creation of ethics guidelines for an emerging issue in the profession, such as the ethical use of social networking sites or the ethics of accepting research funds from pharmaceutical companies. Students are asked to write a standard or set of guidelines that they would propose to APA for the adoption for this professional activity. This task requires research of the professional literature, online searches of sample pages that psychologists or other mental health professionals may have posted, analysis of current APA standards on the topic, review of any standards by other mental health professions, and group consensus regarding the guidelines that they propose. A second topic that would lend itself to this assignment is the ethics of accepting corporate funding for psychology research or training (Pachter, Fox, Zimbardo, & Antonuccio, 2007). A tried-and-true method to enhance students’ appreciation of the complex intellectual considerations and the breadth of scholarship on ethical

issues involves the assignment of a literature search and research study on some area of practice, for example, the impact of CE experiences on psychologists’ day-to-day work, the ethical issues in working with adolescents who seek to keep information disclosed in therapy secret from their parents, or psychologists’ compliance with the elder abuse statutes in their jurisdictions. Werth (2008) has described an excellent approach to the literature search in which students are writing papers on a timely ethics issue that they submit for publication or presentation at a conference. In other words, their training includes immersion in the research and also may involve the completion of their own research studies on the ethics of practice. A related instructional method to foster complex ethical reasoning is to assign students the task of exploring the e-therapy websites offered by licensed mental health professionals and examining their compliance with standards, guidelines, and recommendations for ethical practice in the professional literature. Because e-therapy sites vary widely in their compliance with ethical standards and guidelines, this assignment challenges students to make difficult judgments about the merits and limitations of online therapy. This activity also has merit as an activity to promote ethical sensitivity insofar as it opens students’ eyes to the ways in which some professionals act without awareness of the ethical dimensions of their actions. For example, students often remark that e-therapy websites often fail to disclose the potential risks of online communication while touting the potential benefits of e-therapy. A teaching tool that challenges students’ ability to translate the standards of the profession into language that is accessible to clients and thereby the depth of their understanding of the code is the assignment of the development of a consumer brochure. This task, first described to me more than a decade ago by E. J. McIlvried (personal communication, 1995), asks students to create a brochure to be displayed in a waiting room (or attached to an agency or practice website) that explains a professional standard in a user-friendly way. Students are asked to focus on a specific topic, such as confidentiality in group therapy, informed consent to couple’s counseling, or boundaries in therapy relationships. This activity emphasizes that professional ethical standards are to 295

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be disseminated to the public, not restricted to professionals. It also challenges students to take the perspective of the clientele served and examine the standards from new viewpoints. In these ways, it offers the opportunity for students to synthesize their knowledge and create a document that expresses that sophisticated knowledge in a readable format. A number of students have begun using these brochures in their field placement settings or their workplaces, so this assignment has potential to have an impact on the clients these students serve.

Pedagogy to Promote Ethical Motivation Fostering ethical motivation rests primarily on helping trainees to appreciate the influence of their other values, including ethical and self-serving values, on their professional behavior. Several of the previously described instructional approaches also can be used to heighten ethical motivation. Reviewing the literature that consistently has reported a gap between ethics knowledge and motivation (e.g., Bernard & Jara, 1986; Bernard et al., 1987) is an obvious opening to the discussion of ethical motivation. This reading clarifies to students that reasoning alone is insufficient to guarantee ethical action, and it serves as a bridge to a discussion of their own values that may compete with ethical motivation. It is important to acknowledge that several of the values that compete with professional ethical values are honorable. For example, it is good to be concerned about the financial impact of an action that may cost a psychologist his or her job if that risks harm to the professional’s family. In similar fashion, loyalty to colleagues is not inherently unethical—it is in itself an ethical value of the profession, but it can be a competing value when it conflicts with serving the client’s best interests. Even those values that are less admirable, such as choosing not to report a colleague’s incompetent practice because of concern about the effect of that report on one’s cordial relationship with the staff, should be discussed openly as understandable impulses. Ethics teaching ought not to leave the impression that thoughts of behaving in unethical or questionable ways are unethical in themselves. Instead, ethics teaching should function to help trainees understand the distinction between thoughts or impulses and actions. 296

Appreciation of this distinction allows the professional who is entertaining an irresponsible action to examine this idea without shame and see it as a normal response. If trainees get the mistaken impression that having an unethical idea equates with unethical practice, they may be less inclined to forego the action itself. The book What Therapists Don’t Talk About and Why: Understanding Taboos That Hurt Us and Our Clients (Pope, Sonne, & Greene, 2006) is a great resource to stimulate this discussion. Review of the literature exploring the motivations of disciplined professionals to act unethically also can spark a lively discussion of competing values (Gartrell, Herman, Olarte, Feldstein, & Localio, 1986). Obviously, role-playing, film and media, and case discussion all have as much value in this use as they do in developing ethical reasoning. Role playing a situation in which a client or colleague asks a student to behave unethically can help students experience competing values and help them develop skills in responding to such proposals. It is not unusual, for example, for clients or supervisors to encourage a therapist to fudge a diagnosis to gain insurance reimbursement (or for therapists themselves to want to do so to gain payment). Case Example 2: Beatrice and Diego is an excellent starting point for such a role play because it highlights that unethical action can be motivated by honorable values and because it involves open discussion of payment issues with a client. Just as faculty encourage practice of relationship building and technical skills in training, so too should they encourage practice in the skill of discussing ethical issues. Film and other media also serve as stimulating starting points for fostering awareness of issues that interfere with ethical motivation. Schoener (2008) presented several recommendations for using the television series In Treatment (Barclay et al., 2008) to illustrate how competing values influenced the therapist’s decision to extend boundaries with two young clients. Film also can be a powerful way to demonstrate the relationship between emotional stability and the stresses in a therapist’s life that give other values priority over ethical values. In this HBO series, for example, the therapist’s decisions about boundary extensions are closely tied to his experiences as a father and a son. These media portrayals open the way for honest discussion of the role of

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self-care and emotional stability in the life of the psychologist. Instruction to enhance the motivation to act on professional ethical standards must go beyond attention to the characteristics of the individual professional. It must attend to the impact of the settings in which psychologists work and offer trainees guidance to build an ethical culture in the organizations in which they work. Guest presentations by researchers and practitioners who have worked to develop an ethical culture in their settings are helpful in this regard, as are student interviews of psychologists in a variety of professional settings. Typically, students learn strategies for building a support network for consultation on ethical issues and methods for developing agency policy and procedures to enhance motivation for ethical action. Focusing on how supervisors can support ethical action is a particularly timely instructional approach because supervision issues are in the forefront of trainees’ minds as they proceed through practica and internship. Strategies for building organizational support for ethical approaches to research can be found at the Online Ethics Center for Engineering and Science (2005). One other strategy that has value is not based so much on encouraging ethical action as it is on acquainting students with the negative consequences of unethical action—it is the stick and not the carrot approach, in other words. When students read details of disciplinary actions by licensing boards, they begin to appreciate the distress and practical costs that unethical practice causes psychologists, clients, or research participants, and the family and colleagues of the disciplined professionals. Reading such cases brings to life the disastrous effects of egregious violations in a way that no hypothetical case or lecture by a professor could accomplish (Luepker, 1999; Schoenfeld et al., 2001).

Pedagogy to Promote Ethical Resoluteness Promoting ethical resoluteness is the most challenging of the tasks of ethics instruction because it depends on so many variables beyond the control of the graduate program. In many ways, it assumes substantial progress toward an integrated ethical identity (Handelsman et al., 2005). Exposure to positive role models who have implemented ethical

decisions even when unpleasant and costly is an important initial activity. Offering students examples of those who have indeed modeled what the aspirational components of the Ethics Code envision shows them that ethical action is indeed possible and worthwhile even when it includes negative aspects. It also shows trainees that ethical action can have unexpected rewards or that the costs of resoluteness are not quite as high as they may fear. Because the social justice mission of the profession goes well beyond understanding and interpreting rules and regulations, linking professional ethics to issues of social justice is another vehicle to encourage resoluteness. Reinforcing the notion that unethical action causes suffering, just as prejudicial action causes suffering may place professional ethics in the broader context of fundamental ethical principles and virtues (Fowers, 2005; Fowers & Richardson, 1996). Because resoluteness is a component of an integrated ethical identity, progress toward this goal is most likely to be achieved if the ethical standards and values are discussed throughout the curriculum and not limited to any single course. Accountability for self: Ethics when no one is looking. Ultimately, ethical practice is not simply about avoiding disciplinary actions or liability claims—it is about acting ethically even when there is no threat of discipline. Most unethical behaviors never get reported to ethics committees or licensing boards and most of the ethical issues that regularly trouble practitioners rarely result in ethics complaints (Pope & Vasquez, 2011; Welfel, 2010a). Coupled with these facts is the probability that in their long careers virtually all of our students are likely to be guilty of at least one minor ethical violation about which no one else knows. For example, many professionals acknowledge providing professional service when not really competent to do so (Pope, Tabachnick, & Keith-Spiegel, 1987; Tubbs & Pomerantz, 2001) as the following case illustrates. Case Example 8: Thomas Thomas, a psychologist at a mental health agency, is highly regarded by colleagues and clients alike as a skilled and compassionate professional whose work focuses on adolescents with conduct 297

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and substance abuse problems. Thomas’s 15-year-old daughter recently was assaulted by a boy she knew from school. She successfully fought off his attempt to rape her but suffered broken ribs and several other injuries. Needless to say, Thomas has been distraught about his daughter’s victimization. He has found it difficult to concentrate during therapy sessions and frequently has felt negative emotions toward his clients. These emotions have ranged from a loss of empathy (a feeling that his clients were merely whining about trivial issues) to experiences of rage at teenagers who fail to see the harm they cause with illegal and risky behavior. In sessions since the assault Thomas has been “going through the motions” and has at times been harsh, judgmental, and sarcastic. Several weeks after the assault, Thomas realizes that his recent work with clients has been mediocre at best and substandard at worst. So he asks himself, “Now what do I do? I can’t simply erase the last 6 weeks.”6 Psychologists also frequently acknowledge unintentional unethical actions, as the following case suggests. Case Example 9: Marianne Marianne, a school psychologist, is widely respected as a knowledgeable professional whom students and parents can trust. Each month she has breakfast in a nearby restaurant with an old friend from college. They sometimes swap stories about their frustrations and successes at work. In one recent conversation after a particularly difficult week Marianne began discussing her concerns about some of her students. She was careful not to disclose identifying information, but she did reveal specifics about the issues

that brought these students to counseling and about some of her interactions with their parents. By the end of the meal, she was feeling that this discussion had helped her gain perspective and energy for the week. However, as a man seated close to Marianne was getting up from his table, he gave her a disgusted stare and mumbled that he was right not to trust that marriage counselor with information about his personal life— she would have ended up gossiping too. Marianne felt shocked and chastised but did not know what to do next.7 Case Examples 8 and 9 tend to produce lively class discussion (and are equally effective in CE programs). The major goal of the use of the cases is to alert trainees to their own fallibility and to raise their awareness that ethics is as much about taking responsibility after the fact as it is about preventing an ethical misstep in the first place. The specific instructional task is to invite students to discuss what they would advise Thomas and Marianne to do and whether these psychologists have a responsibility to do anything except promise themselves not to make the same mistake again. After students produce several recommendations, we review how that plan compares with the one I have published that involves three steps: recognition of the misconduct, development of a plan for reducing or eliminating the damage from the misconduct if possible, and implementation of a plan for change so that this type of misconduct is unlikely to be repeated (Welfel, 2005, 2010a). Asking students to role-play a consultation with Thomas or Marianne about their concerns also helps students sort out the next ethical step. Although there may be practical and ethical considerations in such an activity, including guest speakers who describe the ways in which they have accepted accountability for minor ethical errors would be useful. To the extent appropriate, faculty can also disclose incidents during which they may

6

From “Accepting Fallibility: A Model for Personal Responsibility for Nonegregious Ethics Infractions,” by E. R. Welfel, 2005, Counseling and Values, 49, p. 120. Copyright 2005 by the American Counseling Association. Adapted with permission.

7

From “Accepting Fallibility: A Model for Personal Responsibility for Nonegregious Ethics Infractions,” by E. R. Welfel, 2005, Counseling and Values, 49, p. 121. Copyright 2005 by the American Counseling Association. Adapted with permission.

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have inadvertently committed a minor ethical misstep, or may have entertained such actions, and the steps they took to ensure that such a misstep was not repeated. Ending the course with this activity highlights ethical ideals while remaining grounded in the reality of human fallibility and the daily demands of our work. EFFECTIVE CONTINUING EDUCATION EXPERIENCES In spite of the frequency with which licensing boards mandate CE in professional ethics and the substantial monetary investment involved in participation in these experiences, limited research exists on their outcomes or the instructional methods associated with positive outcomes. All jurisdictions have installed procedures for certification of the quality of training proposals, usually based on ASPPB guidelines for continuing professional education (ASPPB, 2001) and APA sponsorship guidelines. These procedures include verifying that the trainers have appropriate professional credentials, mandating the use of course evaluations, and requiring that sponsors of CE programs keep records of participation and evaluations. When states accept self-study or other experiences as an alternative to participation in formal programs, the review of these substitute experiences usually is conducted by the board or designated authority. However, follow-up to assess the impact of the experiences on the behavior of psychologists in their professional settings is rare. The typical pattern is for professional associations to be reactive to proposals for CE programs they receive rather than proactive in identifying the education needs of the professional community (Knapp & Lemoncelli, 2005). Research suggests that most psychologists support the mandate for CE in ethical and legal issues and two thirds of psychologists report that they would participate regardless of the mandate (Neimeyer, Taylor, & Wear, 2009, 2011; Sharkin & Plageman, 2003; VandeCreek, Knapp, & Brace, 1990). Most psychologists rate their experiences in CE programs in professional ethics positively. One study shows that two thirds of Pennsylvania

psychologists agree that it is valuable (Sharkin & Plageman, 2003) and a larger national survey found that 65% of psychologists believe that it has helped them practice more responsibly (Neimeyer et al., 2009), but doctoral-level professionals in another study rated these programs as considerably less useful (Johnson, Brems, Warner, Roberts, & Weiss, 2006). Some participants indicated that risk management trainings left them more anxious about their liability risks than they had been, but not well equipped to know how to act in ways that reduce that risk (Sharkin & Plageman, 2003).

Typical Format and Content of CE Experiences The usual format for formal training is the large group lecture using slides and handouts with time for questions and discussion. Knapp and Sturm (2002) reported that 91% of the programs they studied included more than 50 participants using this format. The content of these programs tended to be updates on ethical and legal issues with extensive review of the Ethics Code. Most psychologists, however, appear to favor other content (Johnson et al., 2006; Knapp & Sturm, 2002). Johnson et al. (2006) found strong preferences in two content areas—ethical interactions with special needs and diverse populations and responsibilities related to colleague misconduct—and a disinterest in programs that reviewed the codes and focused on boundary issues. Knapp and Sturm (2002) indicated that psychologists expressed the strongest interest in programs that reviewed laws and regulations, ethical decision making, and the ethics of clinical work with children. The trend in both studies was for psychologists to prefer training experiences that were focused on specific topics and relevant to their settings.

Recommendations for Improving Continuing Education Experiences Six major recommendations for content and pedagogy emerge from the literature and from my own experience conducting CE experiences. The first recommendation is to design training experiences with a particular audience in mind and to forego a general review of the Ethics Code unless APA 299

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recently revised its code. The pedagogical problems with this format are identical to those found when it is used in graduate programs. Because over the course of their professional lives most psychologists have no choice but to attend dozens of CE programs (for which nearly everyone pays a fee), presenters have a responsibility to focus the content on the issues that audiences want to cover. The second recommendation is to encourage application of ethical duties to cases and vignettes that authentically represent the circumstances of professional practice and to use these cases to promote ethical sensitivity and improve ethical decision-making skills. It is also important that case examples are representative of the cultural and social diversity of the population. Film and other media may be especially useful ways to engage participants in discussion of ethical issues (Schoener, 2008). The third recommendation is to design experiences that build on clinical competencies and participants’ tendency to be self-directed learners. This can be achieved by creating experiences to capitalize on these characteristics and avoiding activities that put the student in the role of passive recipients of knowledge. I often begin programs with small group discussions of the cases that I will be using to illustrate the major points in the workshop. Audiences are sometimes hesitant to become active in the first hour of a workshop, but once engaged, they report the case discussions to be quite helpful. This activity also provides information about the knowledge base of participants and their intuitive methods of approaching ethical issues, which the instructor can use to adapt the presentation to the particular group. The fourth recommendation is to clarify the relationship between professional ethics, philosophical principles, and legal standards. Behnke (2007) has a useful model for clarifying the relationship between social values and the law. The fifth recommendation is to include jurisdictional information about relevant laws, regulations, and court rulings. These topics rarely are included in predoctoral training, but because legal standards are dynamic, past training is insufficient regardless of its quality. Recent research (Pabian et al., 2009) and anecdotal evidence has suggested that even highly experienced clinicians often are misinformed 300

or unaware of legal requirements that affect their practice. For example, Ohio enacted a statute in 1989 allowing adolescents limited access to mental health care without parental consent, but few of the psychologists attending my workshops in the state know about its existence. When legal requirements are included in training, however, they must be presented in a way that reduces anxiety rather than enhances it. Workshops with copresenters from both law and ethics are ideal for this goal. The final recommendation is to design the experience so that participants emerge from it with practical guidance for ethical decision making and a list of resources to assist them in exploring the issues further. For example, when I present trainings on the ethical issues in the use of technology in professional practice, I provide participants with a list of guidelines for responsible use of electronic communication with clients and samples of websites that offer accurate information on mental health concerns. It is important to acknowledge that offering CE workshops has become a business, a big business for some enterprises. Most psychologists receive hundreds of mailings and e-mails about CE programs each year. Those who profit from offering these programs have a special ethical duty to ensure that what they are offering is worthwhile, designed on the basis of the best evidence the current scholarship offers, and that the programs are sensitive to the needs of each audience. In parallel fashion, sponsoring organizations have a duty to be diligent in screening the credentials of those proposing programs and in auditing their success. And as Neimeyer et al. (2009) recommended, measures of actual learning rather than perceptions of learning and satisfaction with training need to be implemented. Additional research on the impact of CE in professional ethics is also a duty owed to all those who spend time and money in attendance at multiple programs. CONCLUSION In summary, if ethics education is going to reach its goal of enhancing responsible professional practice, instructors must move beyond explanation of rules

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and laws and exhortations to do good. Ethics education must be designed and implemented by professionals with expertise in the content, the skills to vary instructional approach to the requirements of the topic and the audience, and a commitment to comprehensively evaluate the effectiveness of their instruction. Education ought to be focused on ethics and ethical ideals, with instruction in legal issues and risk management as secondary concerns. All those involved need to keep in mind that ethics education is a necessary condition for ethical action, but action relies on more than knowledge and decisionmaking skills: It demands a psychologist with an ethical professional identity. APPENDIX 14.1: LIST OF ETHICS TEXTS FOR PROFESSIONAL PSYCHOLOGY COURSES Anderson, S. K., & Handelsman, M. M. (2010). Ethics for psychotherapists and counselors: A proactive approach. Malden, MA: Wiley-Blackwell. Barnett, J. E., & Johnson, W. B. (2009). Ethics desk reference for psychologists. Washington, DC: American Psychological Association. Bersoff, D. N. (Ed.). (2007). Ethical conflicts in psychology (4th ed). Washington, DC: American Psychological Association. Bush, S. S., Connell, M. A., & Denney, R. L. (2006). Ethical practice in forensic psychology: A systematic model for decision making. Washington, DC: American Psychological Association. Campbell, L., Vasquez, M. J. T., Behnke, S., & Kinscherff, R. (2010). APA Ethics Code commentary and case illustrations. Washington, DC: American Psychological Association. Fisher, C. B. (2003). Decoding the ethics code: A practical guide for psychologists. Thousand Oaks, CA: Sage. Ferguson, K. E., & O’Donohue, W. T., (2003). Handbook of professional ethics for psychologists. Thousand Oaks, CA: Sage. Francis, R. D. (2009). Ethics for psychologists. New York, NY: Wiley-Blackwell. Kitchener, K. S., & Anderson, S. K. (2011). Foundations of ethical practice, research, and teaching in psychology. (2nd ed.). Mahwah, NJ: Erlbaum. Knapp. S., & VandeCreek, L. (2003). A guide to the 2002 revision of the American Psychological Association’s Ethics Code. Sarasota, FL: Professional Resource Press.

Knapp. S., & VandeCreek, L. (2006). Practical ethics for psychologists: A positive approach. Washington, DC: American Psychological Association. Koocher, G. P., & Keith-Spiegel, P. S. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press. Nagy, T. F. (2005). Ethics in plain English: An illustrated casebook for psychologists (2nd ed.). Washington, DC: American Psychological Association. Pope, K. S., & Vasquez, M. J. T. (2011). Ethics in psychotherapy and counseling (3rd ed.). San Francisco, CA: Jossey-Bass. Sales, B. D., & Folkman, S. (2000). Ethics in research with human participants. Washington, DC: American Psychological Association. Schank, J. A., & Skovholt, T. M. (2006). Ethical practice in small communities: Challenges and rewards for psychologists. Washington, DC: American Psychological Association. Sommers-Flanagan, R., & Sommers-Flanagan, J. (2007). Becoming an ethical helping professional: Cultural and philosophical foundations. New York, NY: Wiley. Truscott, D., & Crook K. H. (2004). Ethics for the practice of psychology in Canada. Edmonton, Alberta, Canada: University of Alberta Press. Welfel, E. R. (2010). Ethics in counseling and psychotherapy: Standards, research, and emerging issues (4th ed.). Belmont, CA: Cengage.

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Johnson, W. B., & Corser, R. (1998). Learning ethics the hard way: Facing the Ethics Committee. Teaching of Psychology, 25(1), 26–29. Johnson, W. B., Elman, N. S., Forrest, L., Robiner, W. N., Rodolfa, E., & Schaffer, J. B. (2008). Addressing professional competence problems in trainees: Some ethical considerations. Professional Psychology: Research and Practice, 39, 589–599. doi:10.1037/ a0014264 Jordan, A. E., & Meara, N. M. (1990). Ethics and the professional practice of psychologists: The role of virtues and principles. Professional Psychology: Research and Practice, 21, 107–114. doi:10.1037/0735-7028. 21.2.107 Jorgensen, G. T., & Weigel, R. G. (1973). Training psychotherapists: Practices regarding, ethics. personal growth, and the locus of responsibility. Professional Psychology, 4, 23–27. doi:10.1037/h0034688 Josephson, M. (1990). Ethics: More than just a set of rules. Retrieved from http://www.memun.org/ SchoolsProject/Resources/conflictofInterest/ Ethics.htm Kalbeitzer, R. (2009). Psychologists and interrogations: Ethical dilemmas in times of war. Ethics and Behavior, 19, 156–168. doi:10.1080/10508420 902772793 Keith-Spiegel, P. S. (1977). Violation of ethical principles due to ignorance or poor professional judgment versus willful disregard. Professional Psychology, 8, 288–296. doi:10.1037/0735-7028.8.3.288 Kempner, K. P. (2008). The effects of ethical climate and faculty-student relationships on graduate student stress. Dissertation Abstracts International, 68(9-A), 3758. Kitchener, K. S. (1984). Intuition, critical evaluation and ethical principles: The foundation for ethical decisions in counseling psychology. The Counseling Psychologist, 12(3–4), 43–55. doi:10.1177/001100008 4123005 Kitchener, K. S. (1992). Psychologist as teacher and mentor: Affirming ethical values throughout the curriculum. Professional Psychology: Research and Practice, 23, 190–195. doi:10.1037/0735-7028.23.3.190 Kitchener, K. S., & Anderson, S. K. (2011). Foundations of ethical practice, research, and teaching in psychology and counseling (2nd ed.). New York, NY: Routledge. Knapp, S., & Lemoncelli, J. (2005). The role of a state psychological association in promoting ethical conduct. Professional Psychology: Research and Practice, 36, 663–664. doi:10.1037/0735-7028.36.6.663 Knapp, S., & Sturm, C. (2002). Ethics education after licensing: Ideas for increasing diversity in content and process. Ethics and Behavior, 12, 157–166. doi:10.1207/S15327019EB1202_3 303

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Knapp, S., & VandeCreek, L. (2004). Using case law to teach professional ethics. Teaching of Psychology, 31, 281–284. Knapp, S., & VandeCreek, L. (2007). When values of different cultures conflict: Ethical decision making in a multicultural context. Professional Psychology: Research and Practice, 38, 660–666. doi:10.1037/0735-7028.38.6.660 Koocher, G. P., & Keith-Spiegel, P. S. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York, NY: Oxford University Press. Ladd, J. (1991). The quest for a code of professional ethics: An intellectual and moral confusion. In D. G. Johnson (Ed.), Ethical issues in engineering (pp. 130–136). Englewood Cliffs, NJ: Prentice Hall. Levine, S., & Pinsker, H. (1994). The mock trial in psychiatric staff education. The Bulletin of the American Academy of Psychiatry and the Law, 22, 127–132. Lindsey, R. T. (1985, August). Moral sensitivity: The relationship between training and experience. Paper presented at the 93rd Annual Convention of the American Psychological Association, Los Angeles, CA. Luepker, E. T. (1999). Effects of practitioners’ sexual misconduct: A follow-up study. The Journal of the American Academy of Psychiatry and the Law, 27, 51–63. Maxwell, B. (2008). Professional ethics education: Studies in compassionate empathy. New York, NY: Springer. doi:10.1007/978-1-4020-6889-8 McCullah Linder, M. (2002). The ethics of professional psychology: Training and practice. Dissertation Abstracts International, 62(10-B), 4794. Meara, N. M., Schmidt, L. D., & Day, J. D. (1996). Principles and virtues: A foundation for ethical decisions, policies and character. The Counseling Psychologist, 24, 4–77. doi:10.1177/00110000 96241002 Montgomery, L. M., Cupit, B. E., & Wimberley, T. K. (1999). Complaints, malpractice, and risk management: Professional issues and personal experiences. Professional Psychology: Research and Practice, 30, 402–410. doi:10.1037/0735-7028.30.4.402 Moore, E. M. (1999). The relationship between clinical graduate students’ experiences with their educators and their views of therapist–client dual role relationships. Dissertation Abstracts International, 59(8-B), 4476. Neimeyer, G. J., Taylor, J. M., & Wear, D. M. (2009). Continuing education in psychology: Outcomes, evaluation, and mandates. Professional Psychology: Research and Practice, 40, 617–624. doi:10.1037/ a0016655. Neimeyer, G. J., Taylor, J. M., & Wear, D. M. (2011). Continuing education in professional psychology: 304

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CHAPTER 15

ETHICS ISSUES IN SCHOLARSHIP Jeffrey E. Barnett and Linda F. Campbell

The profession of psychology has a long history of a commitment to scientific inquiry. In fact, the very existence of the profession of psychology and its enduring vitality depends on research by psychologists. Promoting the advancement of our understanding of the human condition, as well as of diagnosis, assessment, and treatment, is vital for our ongoing relevance to society and to those we serve. Whether we come from a scientist-practitioner or from a scholarpractitioner training model, a focus on advancing our profession through ongoing research is an essential element of our professional identity as psychologists. Every psychologist participates in this process by conducting research. Some do so only through their doctoral dissertation, whereas others may make this the main focus of their career. For those who enter the profession as practitioners, access to timely, relevant, and ethically conducted research is essential. We each depend on the latest research findings to assist and guide us in our clinical work. If psychological research is not conducted or disseminated ethically, it can have a devastating impact on the profession and on those who receive our clinical services. Furthermore, it can have a pernicious ripple effect in which subsequent research is influenced, creating an ever-expanding negative effect. As such, the ethical conduct of researchers within the profession of psychology is of great importance. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010a) dedicates an entire section to the ethics of conducting research and to the dissemination of its results; Standard 8, Research and Publication.

This standard includes issues relevant to the conduct of research studies to include Standard 8.01, Institutional Approval; Standard 8.02, Informed Consent to Research; Standard 8.03, Informed Consent for Recording Voices and Images in Research; Standard 8.04, Client/Patient, Student, and Subordinate Research Participation; Standard 8.05, Dispensing With Informed Consent for Research; Standard 8.06, Offering Inducements for Research Participation; Standard 8.07, Deception in Research; Standard 8.08, Debriefing; and Standard 8.09, Humane Care and Use of Animals in Research. (More information on these standards and the ethical issues relevant to the conduct of research can be found in Chapter 16 of this volume.) This chapter addresses the ethics of scholarship. Scholarship is not limited to the conduct and dissemination of empirical studies, but it may include the dissemination of theoretical, integrative, and other types of information. Scholarship includes issues relevant to Standard 8.10, Reporting Research Results; Standard 8.11, Plagiarism; Standard 8.12, Publication Credit; Standard 8.13, Duplicate Publication of Data; Standard 8.14, Sharing Research Data for Verification; Standard 8.15, Reviewers; Standard 4.07, Use of Confidential Information for Didactic or Other Purposes; and other issues to include conflicts of interests and influences that may adversely affect the ethics of scholarship. A FOCUS ON ETHICS Ethical researchers and scholars are guided by the General Principles of the Ethics Code (APA, 2010a).

DOI: 10.1037/13272-015 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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Although not enforceable, these General Principles are aspirational in nature, providing psychologists with ethical guidance that can assist in making choices regarding the appropriateness of our decisions and conduct. These General Principles include Principle A, Beneficence and Nonmaleficence; Principle B, Fidelity and Responsibility; Principle C, Integrity; Principle D, Justice; and Principle E, Respect for People’s Rights and Dignity. Although psychologists must follow the enforceable standards of the Ethics Code, the five General Principles provide psychologists with underlying principles to guide ethical judgment and decision making. For example, when considering a particular course of action or when faced with an ethical dilemma, one might ask, “Is taking this action likely to lead to harm to this individual?” “Will acting in this way be in this person’s best interest?” “Is this action in keeping with my obligations to this person?” “Am I treating this individual differently than I treat others, and if so, why?” and “Am I allowing prejudices or biases to cloud my judgment regarding this person?” The relevance of such questions to guide decision making and professional judgment will be readily apparent in the discussions of specific areas of ethics in scholarship that follow.

How Can Unethical Behavior Happen? It is reasonable to assume that the vast majority of psychologists are ethical individuals who aspire to the highest ideals of our profession on an ongoing basis. Yet, available data indicate that some psychologists do engage in unethical (and illegal) behaviors in their professional roles (Association of State and Provincial Psychology Boards [ASPPB], 2009). One easily can ask how individuals who enter a profession with stated goals that include helping others frequently can end up engaging in unethical behaviors that may cause harm to those they have dedicated themselves to serving. Several contributing factors may be relevant, although ethics committees and licensing boards do not collect and publish data on underlying motivations or causes. Possible factors may include (a) naiveté, lack of awareness, or lack of adequate clinical and ethics training; (b) impairment of professional judgment 310

from such factors as life stresses, mental health difficulties, substance abuse, or conflicts of interest; or (c) premeditated and consciously planned unethical behavior motivated by ego, avarice, greed, or characterologic factors. Certainly, other factors may exist as well. These various factors may function independently or in combination to contribute to the commission of unethical acts by psychologists. Yet, it is believed that psychologists may help reduce the risks of unethical practices with (a) comprehensive training in ethics and ongoing ethics continuing education activities throughout our careers; (b) thoughtful attention to psychological, physical, and spiritual wellness and the ongoing practice of self-care; (c) an ongoing focus on the aspirational ethical principles of our profession; (d) the judicious use of consultation and supervision with experienced colleagues; and (e) attention to pressures that may influence ethical judgment and decision making.

Ethics, Pressures, and Impaired Judgment in Scholarship Numerous forces and influences are present with which every scholar and researcher must contend. Some may be obvious and others more subtle. Yet, each may challenge psychologists to produce and disseminate scholarly work in an ethical and appropriate manner. Ethical dilemmas, pressures, and problems in scholarship may take a variety of forms. A number of situations may arise in which various influences, pressures, and conflicts of interest may lead to unethical behavior. In recent years, the media have reported on several instances in which researchers and scholars from a wide range of fields have fallen prey to these influences and pressures. In a study published in Nature, Martinson, Anderson, and de Vries (2005) reported on ethical lapses acknowledged by U.S.-based scientists during their careers. They surveyed several thousand early and midcareer scientists who self-reported on their own unethical behaviors. Findings included the following: 15.5%: Changing a study under pressure from a funding source. 15.3%: Dropping data from analysis based on a gut feeling.

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12.5%: Overlooking others’ use of flawed or questionably interpreted data. 10.8%: Withholding details of methodology or results in papers or proposals. 10.0%: Inappropriately assigning authorship credit. 6.0%: Failing to present data that contradicts one’s own previous research. 4.7%: Publishing the same data or results in two or more publications. 1.7%: Unauthorized use of confidential information. 1.4%: Using another’s ideas without permission or giving credit. 1.4%: Questionable relationships with students, subjects, or clients. 0.3%: Not properly disclosing involvement with firms whose products are based on one’s own research. 0.3%: Falsifying or “cooking” research data. (Martinson et al., 2005, p. 737) RECOGNIZING CONFLICTS OF INTEREST The multiple and often complex professional roles held by psychologists may render them vulnerable to conflicts of interest. Conflicts of interest may occur when psychologists’ multiple roles become incompatible or when the means by which psychologists achieve their professional goals are compromised. The Ethics Code (APA, 2010a) defines the application of conflicts of interest in Standard 3.06, Conflicts of Interest, which states, Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation. (p. 6) This ethics standard is cited in the Human Relations section of the Ethics Code and very often is

associated with multiple roles and relationships with clients, students, and others with whom psychologists associate in psychotherapy or other treatment interventions. Frequently cited examples are (a) a psychologist who rents space in a building owned by the client, (b) the psychologist who takes financial advice from a client who is a successful stock broker and whose stock tips are always on the mark, and (c) a psychologist who purchases art work from a client who is an artist at a cost the psychologist knows is below the purchase price for other buyers. The phrase “interests or relationships” within Standard 3.06, Conflict of Interests, signals a more comprehensive meaning than just relationship conflicts. Ethical conflicts that arise in roles related to the pursuit of scholarship often do not involve a relationship with another person but rather psychologists’ compromises through the means by which they achieve professional goals. Examples include (a) allowing financial sponsorship of a research project to affect methodology and analysis to favor the sponsor, (b) “cooking” outcome data from a treatment study to acquire renewal for a grant, and (c) promoting educational materials in a workshop without disclosing the consultant role held with the publisher of the materials. Conflicts of interest could surface through any standard in this section but often occur in violation of the following standards: Standard 8.10, Reporting Research Results; Standard 8.11, Plagiarism; Standard 8.12, Publication Credit; Standard 8.13, Duplicate Publication of Data; Standard 8.14, Sharing Research Data for Verification; and Standard 8.15, Reviewers. Other conflicts of interest applicable to the Research and Publication Section do not necessarily involve advancing one’s professional career by questionable means but may stem from loss of objectivity in showing favoritism, intended helpfulness, or intended negative influence (Standard 3.06(1)). Examples may include a reviewer (a) identifying a manuscript whose author is a friend or competitor and still providing the review and (b) offering coauthorship on a publication to a colleague who did not participate in producing the manuscript but who is going up for promotion soon. The Publication Manual of the American Psychological Association, Sixth Edition (APA, 2010b) cites 311

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the importance of both awareness of and transparency in potential conflict-of-interest matters, noting “objective interpretations of evidence and unbiased interpretation of fact” (p. 17) are assumed. Even in circumstances in which there is not an actual conflict of interest, “the integrity of the field requires disclosure of the possibilities” (p. 17). Regarding decision making and the perception of conflict of interest, the APA Publication Manual suggests that authors may consider that if there are events or relationships that if known to the reader may be perceived as a conflict of interest, then the authors should include an explanatory note (and should do so even if the authors do not think there is a conflict). In addition, psychologists guard against a possible perception of negative bias against products, services, or individuals, such as holding the copyright to a psychological test and making a judgment about a publication or the convention presentation of an individual whose psychological test is a major competitor (APA, 2010b). Because of the increased concern about conflicts of interest in scholarly publications in recent years (e.g., Pachter, Fox, Zimbardo, & Antonuccio, 2007; Perlis et al., 2005; Reist & VandeCreek, 2004; Tungaraza & Poole, 2007), publishers may now ask for a statement regarding compliance with ethical standards and disclosure of conflicts of interest, such as financial agreements or association with related services or products, and potential negative bias that could affect decision making or outcome (APA, 2010b). Upon acceptance of a manuscript, APA journals mandate the use of forms attesting to compliance with ethical standards and disclosure of conflict of interest. Authors and researchers are wise to consider the expectations of compliance with ethical standards and disclosure requirements at the beginning of their professional activities whether or not they are planning to submit to an APA journal (APA, 2010b). There are many aspects of ethical and appropriate conduct that if not built into the scholarly activity at inception often cannot be incorporated at a later point in the development process. The APA Publication Manual allows for a Special Circumstances inclusion in APA published materials. Authors who think they may be perceived as having

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a conflict of interest may declare the potential conflict in this section.

Evolving Potential for Conflicts of Interest Psychologists who may be the most likely to deal with conflicts of interest given the nature of their scope of practice and the health care context of their scholarly work and publications are those who conduct research involving medications, participate in research sponsored or funded by pharmaceutical companies, work in consultation or collaboration with testing companies, and seek to gain prescription authority as well as those who are prescribing psychologists. Psychologists who work in circumstances that increase vulnerability to conflicts of interest strive to bring transparency and readily accessible information to their professional activities. A commitment made by organized psychology in the pursuit of prescription authority is the continued identity as scientist-practitioners (DeLeon & Wiggins, 1996; Levant & Sammons, 2003) and therefore the expectation is that psychologists will be able to delineate conflicts of interest and ethical practices. Health professions that have not made the commitment that their professional membership will engage in and be informed by science in the conduct of providing services to the public may fall prey to conflicts of interest without the health care professionals knowing or understanding their vulnerabilities. Psychological associations and their publications also may be vulnerable as corporate sponsorship increases and prescription of psychotropic medication becomes a significant part of research and publication. Psychological journals are still by and large independent of the influence of advertisers and other external sources of revenue and have not become dependent on external funding, as has medicine (Kirsch, 2003). In 2000, the American Psychiatric Association accepted $13 million in advertisement and other revenues from the pharmaceutical industry. This amount was $3 million more than the amount generated by dues-paying members (Vedantam, 2002). The journals of professional associations produce considerable profit for the associations and the risk of publishing articles unfavorable to manufacturers and corporate

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interests could result in a significant loss of revenue (Pellegrino & Relman, 1999).

Recommendations for Potential Conflicts of Interest In 2002, Philip Zimbardo, then president of the APA, commissioned the Task Force on External Funding. The objective of the group was to determine the impact on other professions of corporate funding and to then suggest policies that would protect APA from damaging effects. The task force submitted recommendations in the areas of association income, annual convention, research and journals, continuing education, practice, and conflicts of interest and ethics. The recommendations developed and published by the task force (Pachter et al., 2007) for research and journals (i.e., publications) are as follows: ■

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All raw data from research studies published in APA journals would be available for independent review. This recommendation corresponds to Ethical Standard 8.14, Sharing Research Data for Verification. When research is sponsored by corporate funding, psychologists would participate in each stage of the data development and be able to ensure access to data and participation in any manuscripts submitted for publication. Financial conflicts emerging from sponsored presentations, publications, research, journal review, and other professional activates in which corporate influence could be wielded would be fully and publically disclosed. Journals should publish a disclaimer regarding claims made by corporate or industry-funded advertisement. APA should weigh the merits of sponsoring its own clinical trial registry. Short of that option, all clinical trials should appear in a public registry to meet criteria for publication in an APA journal.

Similar recommendations were made for continuing education programs that are sponsored by the pharmaceutical industry or other corporate interests to minimize any appearance of conflicts of interest and to reduce the influence and interests of these entities

on the content presented (Pachter et al., 2007). Additional recommendations were made for removing conflicts of interest in the education setting and within research. Pachter et al. (2007) concluded that “results of several studies show a statistically significant association between industry sponsorship and proindustry conclusions of investigators” (p. 1010) and that “researchers funded by pharmaceutical companies that sell the drug they are evaluating tend to produce results favorable to that drug” (p. 1009). The authors recommended a clear separation of academic researchers from corporate funding sources. Finally, they recommended clear policies to prevent conflicts of interest in practice that may affect practitioners’ treatment decisions, to include the acceptance of gifts, an awareness of the potential impact of marketing and advertising materials and efforts, and the role of personal relationships with industry representatives on the treatment decisions they make. Conflicts of interest can be complex and not readily realized. Conflicts may occur in contemplated multiple-role relationships, when ethical conduct conflicts with the pursuit of professional objectives, or when benign gestures are enacted for the benefit of others. As the roles of psychologists evolve and corporate and other financial interests play a greater role in the work of psychologists, greater vigilance about perceived and actual conflicts of interest will be needed.

Publication Credit Publication and authorship credit pertains to those who are listed as authors for their contributions to scholarly work and how this credit is acknowledged. Examples include sole authorship for a publication, multiple authorship credit for a publication, and the acknowledgment of contributions to a publication that does not rise to the level of authorship credit. Similar options exist for presentations, workshops, and other scholarly activities. Upon initial consideration, the issue of authorship credit may seem clear and straightforward. The relevant standard in the Ethics Code (APA, 2010a), Standard 8.12, Publication Credit, states, (a) Psychologists take responsibility and credit, including authorship credit, only

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for work they have actually performed or to which they have substantially contributed. (See also Standard 8.12(b), Publication Credit.) (b) Principal authorship and other publication credits accurately reflect the relative scientific or professional contributions of the individuals involved, regardless of their relative status. Mere possession of an institutional position, such as department chair, does not justify authorship credit. Minor contributions to the research or to the writing for publications are acknowledged appropriately, such as in footnotes or in an introductory statement. (c) Except under exceptional circumstances, a student is listed as principal author on any multiple-authored article that is substantially based on the student’s doctoral dissertation. Faculty advisors discuss publication credit with students as early as feasible and throughout the research and publication process as appropriate. (See also Standard 8.12(b), Publication Credit.) (p. 11) Thus, as is stated in this standard, psychologists take credit only for the work they actually have performed, order of authorship credit is given on the basis of the relative contributions of each individual involved in the scholarly activity, and minor contributions that do not warrant authorship credit are addressed through an acknowledgment or introductory statement in the publication. Authorship credit is never given on the basis of one’s institutional position or status and work published on the basis of a student’s dissertation typically will list the student as first author. Furthermore, faculty and more senior colleagues should be mindful of the power differential inherent in their relationships with students and junior colleagues and of their motivations when making authorship decisions. They should ensure that their actions fulfill the obligations set in Principle A, Beneficence and Nonmaleficence, of the Ethics Code (APA, 2010a), which states, “Because psychologists’ scientific and professional judgments 314

and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or (other) factors that might lead to misuse of their influence” (p. 3). Despite the apparent clarity of these obligations, thoughtful psychologists endeavoring to follow this guidance may face complex issues that may not be resolved easily. Upon initial consideration, it may seem that an ethical course of action for addressing authorship issues would be to have all those involved in a research or professional writing project reach an agreement up front that addresses each participant’s responsibilities in the project (Hopko, Hopko, & Morris, 1999; Nguyen & Nguyen, 2006; Washburn, 2008). Then, on the basis of each participant’s agreed-on relative contributions to the project, this contract would specify their agreed-on order of authorship on any publications that result from their collaboration. This would be a reasonable approach to addressing the requirements of Standard 8.12. Although this seems like a thoughtful and prudent approach, several dilemmas and challenges come with it. First, not all colleagues will necessarily fulfill their agreed-on obligations in a timely manner, or to the level of excellence anticipated by the other collaborators. Busy professionals may have numerous other competing demands, both in their professional and personal lives, which interfere with achieving agreed-on deadlines. Colleagues who may have believed they possessed the needed experience and expertise to participate in the project and perform at anticipated levels of competence and excellence may find themselves ill prepared for the rigors of a project. Others may lose interest in a project or for a variety of other reasons not fulfill their obligations. Each of these situations may necessitate the need to modify initial authorship agreements. As a result, the possibility of such situations arising should be anticipated and also should be included in all written authorship agreements (Fine & Kurdek, 1993). Second, each author’s relative contributions to a research or writing project may be difficult to determine and agree on. For example, how does one value the importance of developing the idea for a research project, designing a study, deciding which statistical tests will be utilized, putting together the research team and delegating activities, writing a

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grant application or institutional review board application, conducting various aspects of the data collection, analyzing the data, writing the manuscript, and editing the manuscript? Furthermore, within each of these aspects of scholarship, how are each contributor’s relative contributions valued with regard to proportion of contributions to the study? It may seem that agreeing on a simple formula for order of authorship credit would be a suitable approach; if two authors are involved, the one who did 51% or more of the work would be listed as first author. When three or more authors are involved, a similar proportional approach to assessing each participant’s relative contributions, and thus authorship credit, could be used. Although this approach is quite logical and fair, the issues raised complicate the matter and make implementing this approach a great challenge. Fine and Kurdek (1993) have recommended that authorship credit be given on the basis of both substantive activities and overall contribution to the project, but they also advise against a rigid application of order of authorship determination criteria. Other authors such as Winston (1985) have suggested the use of a point system for determining authorship credit and order. Twelve essential tasks that are a part of the research and publishing process (from formulating the idea to editing the final manuscript) are assigned points and all individuals who earn 50 or more points are listed as an author on publications that result from the project. The order of authorship is then determined by listing the authors in descending order of points earned. Although this approach also may seem to be fair and logical, it has not been widely used by psychologist researchers and scholars (Oberlander & Spencer, 2006). While it may be challenging to do so, before the beginning of the scholarly activity, those who will be participating will need to reach a tentative agreement on authorship credit. This credit should be assigned on the basis of their assessment of the relative value of each type of activity they contribute to the successful completion of the project, as suggested by Winston (1985), or more informally, as appears to have been the general practice of researchers and other scholars (Yank & Rennie, 1999). This will need to be done without coercion or undue influence, and all involved should agree to this before the

beginning of the project. Furthermore, if doubt or disagreements exist about the relative value of various contributions, experienced and trusted colleagues should be consulted before the contract is signed. Despite all these steps being taken, this still should be considered a tentative agreement by all involved because some participants may not fulfill their agreed-on obligations and others may do more than originally anticipated. Thus, all written agreements should include clauses that emphasize the evolving nature of the agreement. The written agreement can stipulate agreed-on duties and expectations as well as how the order of authorship credit may change as a result of how each collaborator fulfills his or her obligations. It also may be prudent to retain the services of a colleague not involved in the project who can serve as an ombudsperson should any disagreements about authorship credit arise during the course of the project (Oberlander & Spencer, 2006). Before work is initiated, all parties involved in the project should agree on this person and her or his role and authority. Standard 8.12(c) addresses the scholarly work of students and provides specific safeguards to prevent their exploitation. This standard emphasizes that except under “unusual circumstances” publications that are “substantially based on the student’s doctoral dissertation” will have the student listed as principal author (p. 11). This standard also emphasizes the need to address authorship credit issues with students “as early as feasible and throughout the research and publication process as appropriate” (p. 11). This final point is consistent with the process of informed consent, which is so essential to all professional relationships in which psychologists participate. Furthermore, as with the informed consent process, it is seen as an ongoing process and not a singular event. Thus, all faculty engaged in scholarship activities with students bear the responsibility of ensuring that authorship credit issues are openly discussed and addressed in a manner that does not exploit students (Louw & Fouché, 1999), that this discussion be initiated at the outset of the scholarly activities, and that this be reviewed and revisited over time as needed to ensure compliance with the obligations articulated in the Ethics Code (Fine & Kurdek, 1993). 315

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In a study by Martinson et al. (2005), 10% of researcher respondents acknowledged inappropriately assigning authorship credit. An additional 1.4% reported using another’s ideas without permission or giving credit. Furthermore, Sandler and Russell (2005) surveyed members of APA and found that 27.3% “felt they had been involved in an unethical or unfair authorship assignment” (p. 65). Similarly, Geelhoed, Phillips, Fischer, Shpungin, and Gong (2007) found that 27% of psychologist authors they surveyed reported being involved in authorship decisions that were unethical. Thus, despite the clearly stated standards of the Ethics Code, such behaviors do still occur. As several authors have recommended, updated institutional policies are needed that more clearly address these issues and that more specifically delineate criteria for authorship inclusion and order, and active oversight and implementation of these policies is needed to ensure that those with less power and authority are protected (Arthur et al., 2004; Holaday & Yost, 1995; Oberlander & Spencer, 2006; Sandler & Russell, 2005; Washburn, 2008). In addition to the challenges and issues addressed thus far, Standard 8.12, Publication Credit, also has relevance for the issues of ghost or vanishing authorship and gift or honorary authorship. Ghost authorship refers to individuals who have made substantive contributions to a research project or publication and who are not credited as authors (Flanagin et al., 1998; Rennie & Flanagin, 1994). This practice directly violates Standard 8.12 of the Ethics Code and may be the result of a range of motivations. For example, this practice has been used to hide apparent conflicts of interest of funding sources for research that may have an interest in certain outcomes being achieved, yet who wish to present the appearance of valid, objective, and unbiased research findings (Flanagin et al., 1998; Kempers, 2002; Washburn, 2008). The practice also may be used by those in positions of power to exploit those who are dependent and in positions of less power, such as when senior faculty and researchers fail to give students and junior faculty authorship credit for work they have done (Rennie & Flanagin, 1994). Geelhoed et al. (2007) found this practice reported by 9% of the psychologist authors they surveyed. 316

An example of a failure to give authorship credit might be a faculty member who has supervised a student’s thesis or dissertation research. Once the student has graduated, the faculty member may be tempted to analyze the data generated by the student differently, and then submit a new manuscript for publication with the faculty member as the sole author. Although this differs from merely submitting the student’s research for publication without the student’s permission or involvement, it is still inappropriate. The use of data generated by another individual may be done only with appropriate consent. In this situation, the faculty member should have contacted the former student and proceeded with this new project only with the former student’s permission and involvement. In addition to obtaining permission to use the data in a new publication, as described, the issue of authorship credit would need to be agreed on before proceeding with the new project. This agreement should include the possibility of other studies and manuscripts being generated from the student’s original research and explain how decisions about pursuing these would be handled. In the present example, even if the former student does not participate in the new data analysis or in the writing of the new manuscript, appropriate authorship credit would need to be given to the former student because of his or her significant contributions to the present study. One could ask, “Could I create this manuscript without the former student’s scholarly contributions (i.e., data generated previously)?” If not, then one could reasonably argue that authorship credit must be provided. Honorary or gift authorship is the practice of listing an individual as an author of a manuscript submitted for publication even though that individual did not make a substantive contribution to the project. The results of one study (Flanagin et al., 1998) suggested that up to 20% of all scientific publications may include honorary or gift authors on manuscripts they publish. Another study (Yank & Rennie, 1999) found that 44% of individuals listed as authors of the journal Lancet did not meet widely accepted criteria for determining authorship credit. According to Geelhoed et al. (2007), this practice was reported by 18% of the psychologist authors they surveyed.

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In fact, in many gift authorship situations, individuals credited as authors of a study often have had no actual involvement in the planning, conduct, analysis, or writing of research submitted for publication. The listing of these individuals as coauthors on publications may be seen as an effort to add credibility to the research results (Laflin, Glover, & McDermott, 2005). Additionally, this practice may be the result of pressures from individuals in positions of authority and power such as a department chair or research supervisor. Furthermore, Oberlander and Spencer (2006) highlighted that this practice at times may indicate the payment for favors or as a means to assist students or subordinates by enhancing their publication record (despite not having earned the authorship through their substantive contributions). All of these suggested motivations for engaging gift authorship practices are supported by a survey of authors (Geelhoed et al., 2007) who reported their motivations for engaging in this practice to include “sense of loyalty or obligation,” “publish or perish pressures,” and “power differentials” (p. 95). This practice is a great violation of the trust of the consumers of the research as well as an assault on the integrity of the scientific process. It is clearly a violation of Standard 8.12 of the Ethics Code (APA, 2010a), and as Bennett and Taylor (2003) pointed out, “it dilutes the credit for the authors who made legitimate and substantive scientific contributions” (in Oberlander & Spencer, 2006, p. 218). But, as Laflin et al. (2005) have suggested, gift authorship practices may be prevalent “at least in part, due to the atmosphere found in many universities and funding agencies that may encourage quantity over sustained quality in academic work” (p. 583). Clearly, such an environment must be changed, with quality being emphasized over quantity, and with integrity and ethical conduct modeled and emphasized by senior researchers, leaders, junior colleagues, and students alike. PREVENTING PLAGIARISM Plagiarism involves using another’s words, ideas, data, or scientific work and failing to provide appropriate credit to that individual, either by specifically claiming credit for the work or by failing to give appropriate credit to that individual. Standard 8.11,

Plagiarism, of the Ethics Code (APA, 2010a) states that “psychologists do not present portions of another’s work or data as their own, even if the other work or data source is cited occasionally” (p. 11). The APA Publication Manual (APA, 2010b) states quite clearly that “researchers do not claim the words and ideas of another as their own; they give credit where credit is due” (p. 15). The APA Publication Manual (APA, 2010b) further emphasizes that all words of another individual should be placed in quotation marks and the original source should be noted, including the name of the individual(s), the year of publication, and the page number(s) of the publication being quoted. The full citation then should be included in the reference section of the publication. When another individual’s ideas are shared or that individual’s words are paraphrased, these need to be appropriately cited as well. This credit is given by citing the author and year in parentheses immediately following the paraphrased statement. As highlighted, however, the Ethics Code suggests that merely citing an author’s name and the year of publication at the end of a paragraph may be insufficient. Authors must make explicitly clear which ideas are another author’s and which are their own. The single citation at the end of a paragraph may appear to imply that only the final sentence is based on the scientific work or ideas of another. Authors must make explicitly clear what is their own scholarship, what is others’ scholarship, and what scholarship is influenced by others. Appropriate credit of others for their scientific work and ideas applies to all forms of scholarship, not just publications. Thus, the presentations and personal communications of others also should be cited appropriately. Additionally, the medium of the psychologist’s scholarship is irrelevant to this requirement, with appropriate credit being given to others in presentations, in Internet and web-based communications and publications, and in teaching. Presenters of workshops, symposia, papers, speeches, posters, and the like must credit others appropriately for their work and ideas. Similarly, faculty who present lectures to students should state the source of ideas and information presented and not imply or state that others’ work is their own. Both presenters and faculty can provide appropriate credit to others 317

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verbally, in written handouts and other materials, and on PowerPoint slides.

Unintentional Plagiarism Perfect and Stark (2008) have investigated unintentional plagiarism to include what they term unconscious plagiarism and have found that this may occur with significant regularity. They described how individuals may recall another’s ideas as their own (recall-own) and how generating solutions to challenging problems can result in coming up with solutions that are formed on the basis of others’ previously stated ideas (generate-new). These processes help explain some sources of unconscious plagiarism and these are found to be more specific cognitive errors than just imperfect memory abilities. Perfect, Field, and Jones (2009) presented further support that these two distinct sources of unconscious plagiarism exist (recall-own and generate-new) and that they may occur independently of each other. Furthermore, evidence for the existence of these two different psychological processes occurring in cases of plagiarism lends additional support to the suggestion that many cases of plagiarism may be the result of unconscious processes and not intentional or malicious acts (Perfect et al., 2009).

Inadvertent Plagiarism Plagiarism also may be inadvertent but not unconscious. For example, scholars who read many articles and take notes on them may forget which of the notes are their own ideas, which are other authors’ ideas paraphrased, and which are actual quotes that have been written down. Failure to provide appropriate attribution to other authors when taking notes, while not necessarily an intentional or malicious act, still may result in plagiarism and remains a serious breech of professional ethics. McCabe, Smith, and Parks (2007) also found that weaknesses in working memory can be associated with increased incidents of inadvertent plagiarism, further lending support to the necessity for taking careful notes that include careful attribution to others’ words and ideas.

Self-Plagiarism and Intentional Plagiarism Clearly, all cases of plagiarism cannot be seen as being the result of unconscious processes or carelessness. 318

Some who engage in plagiarism may do so for all the reasons cited previously for engaging in unethical behaviors in general. These may include laziness, a feeling that rules do not apply to oneself, poor time management, the pressure to be published, and others. Self-plagiarism. Self-plagiarism is another form of plagiarism about which scholars must be vigilant. The APA Publication Manual (APA, 2010b) describes this as presenting one’s “previously published work as new scholarship” (p. 16). Roig (2008) stressed that self-plagiarism is inconsistent with “the mission of most scholarly journals (which) is to publish original research” (p. 245). It is true that many scholars will publish work that is built on their previous work. In doing so, it may be appropriate to mention this past work and to describe it. But, to present the past work as though it is new or original would constitute self-plagiarism. A scholar’s own words, passages, and ideas from prior publications should be cited just as the work of others would be, to include a full entry in the reference section of the new publication. Additionally, when one’s previously published words are included in a new publication they should be presented between quotation marks with one’s name, the year of original publication, and the original page numbers provided immediately following the quote. While citing one’s previous work in this manner is necessary, such citing of one’s own work should be done only sparingly. As is stated in the APA Publication Manual (APA, 2010b), “The core of the new document must constitute an original contribution to knowledge, and only the amount of previously published material necessary to understand that contribution should be included, primarily in the discussion of theory and methodology” (p. 16). Intentional plagiarism. Failure to give appropriate credit to authors of previously published work when the plagiarism or citation is not unconscious or inadvertent likely will constitute intentional plagiarism. This act is clearly unethical and violates Standard 8.11, Plagiarism, of the Ethics Code (APA, 2010a). In keeping with this standard, all use of “another’s work or data” must be appropriately cited to give appropriate credit and to ensure that there is no appearance of presenting them as one’s own (p. 11).

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As is highlighted in the APA Publication Manual (APA, 2010b), authors may need permission of copyrighted work to reprint it or adapt it for use in a subsequent publication (Section 6.10, Permission to Quote, Reprint, or Adapt). As described, quoting involves citing between quotation marks brief passages of another’s words or ideas, with appropriate attribution. Reprinting involves reproducing verbatim larger sections of another individual’s work. Adaptation involves modifying another individual’s work for use in one’s new work. Merely quoting or citing sections of copyrighted material or using an author’s note or statement of acknowledgement for adaptations of another’s work may not be sufficient. Each publisher has a policy on the reuse of published material and each author is responsible to be aware of and comply with these policies before using previously published materials in their work. The policy of the APA is as follows: APA policy permits authors to use, with some exceptions, a maximum or three figures or tables from a journal article or book chapter, single text extracts of fewer than 400 words, or a series of text extracts that total fewer than 800 words without requesting formal permission from APA. (APA, 2010b, p. 173)

Crediting Sources Appropriately The APA Publication Manual (APA, 2010b) provides detailed guidance on how to appropriately cite the work of others in one’s current work. Specific information is provided on how to quote accurately, when material being quoted may be modified with and without explanation, how to do citations within quotations, and when permission to quote, reprint, or adapt is required. Furthermore, within each of these areas, specific guidance is provided for citing references correctly. For example, instructions and representative examples are included for citing a work by one author, a work by multiple authors, a work by groups of authors, a work with no identified author, secondary sources, classical works, personal communications, and the like. Additionally, specific instructions and representative examples are provided for constructing a reference list of all sources

cited in one’s publication and for doing it appropriately. All psychologists engaged in scholarship are strongly encouraged to become familiar with these and other relevant sections of the APA Publication Manual and to use this manual as a resource when engaged in scholarship activities.

Reducing Plagiarism In the Internet age, accessing others’ scholarship and simply “cutting and pasting” material into one’s own work can occur with ease. Although some online plagiarism-checking technologies exist (e.g., Turnitin), relying merely on them will likely prove insufficient (Baggaley & Spencer, 2005). Additional steps are recommended to include education, ongoing training, and active oversight (Roig, 1999; Walker, 2008). (More information on plagiarism among students and ways to prevent it can be found in Chapter 12 of this volume.) For psychologists supervising the scholarly activities of others, it is important to ensure that their supervisees are made aware of relevant standards and that all words and ideas of others are appropriately cited. It may be prudent to provide supervisees and students with training regarding the definition of plagiarism to ensure their full understanding of it, to train them to appropriately cite and adapt others’ work, and to be aware of both conscious and unconscious sources of plagiarism. Closely monitoring subordinates’ work and actively working to ensure their efforts to attain the highest possible standards in the ethics of scholarship also are recommended. Furthermore, academic departments and research institutions may find educational efforts with all scholars, regardless of their level of experience or seniority, to be helpful. An example might be the provision of ongoing staff training and professional development activities on understanding and avoiding of plagiarism. REPORTING RESEARCH RESULTS Instances of variance in reporting results may include unintentional mistakes in procedures or statistical analysis, but also may include intentional misrepresentation of results by (a) distorting data to increase the appearance of significant results, (b) omission of data that prove counter to the research hypotheses, 319

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or (c) manipulation of the criteria for selection of participants. Two standards of the Ethics Code (APA, 2010a) are relevant to the reporting of research results. Standard 8.10, Reporting Research Results, states the following: (a) Psychologists do not fabricate data. (See also Standard 5.01(a), Avoidance of False or Deceptive Statements.) (b) If psychologists discover significant errors in their published data, they take reasonable steps to correct such errors in a correction, retraction, erratum, or other appropriate publication means. (p. 11) Because of the multisite nature of many federally funded research projects and multiple authorship of findings from major research initiatives, psychologists now more than ever need to be vigilant for errors in their own research entered by or created by others involved in the publication. Standard 5.01, Avoidance of False or Deceptive Statements (APA, 2010a) includes two passages that are relevant for reporting research results: (a) Psychologists do not knowingly make public statement that are false, deceptive, or fraudulent concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated. (b) Psychologists do not make false, deceptive, or fraudulent statements concerning . . . their publications or research findings. (p. 8) These standards speak specifically to psychologists’ treatment of their work in the public arena. The public has little opportunity to verify the accuracy of psychologists’ work and lacks the expertise to do so. The Ethics Code has devoted Section 5 to Advertising and Other Public Statements partly for this reason. Psychologists have a duty to present truthful and factual information to those who will rely on the veracity of the information. Standard 5.01(a) particularly addresses the importance of psychologists not misrepresenting 320

their scholarly and scientific work that might be done for professional enhancement or advancement purposes. Standard 5.01(b) further specifies that psychologists do not misrepresent “their publications or research findings” (p. 8). Thus, while Standard 5.01 is devised to protect the public, Standard 8.10 is devised to protect the integrity of the academy in reliance on the authenticity of data to advance our science. The APA Publication Manual (APA, 2010b) asserts that “the essence of the scientific method involves observations that can be repeated and verified by others” (p. 12). Furthermore, the APA Publication Manual elucidates, “Modifying results, including visual images . . . to support a hypothesis or omit troublesome observations from reports to present a more convincing story is also prohibited” (p. 12) and is further described in Standard 5.01 of the Ethics Code. The APA Publication Manual offers authors and researchers a procedure to correct errors. First, they should inform the editor and publisher of the error so that they can issue a notice of the correction for the purpose of alerting future authors and researchers in use of the information, and then a correction notice should be attached to the original article in an online database so that any time the article is referenced, the correction also will appear (Section 1.07, Ethical Reporting of Research Results). For example, a junior faculty member faced with numerous personal and professional pressures may lose objectivity and judgment when considering what she can do to ensure that she can report significant findings and have a chance of having her work published. The pressures of her upcoming promotion and tenure reviews weigh heavily on her and may lead her to report research results unethically. Or, a senior researcher faced with the possibility of losing grant funding may consider altering or shading research results that will be reported to the funding source with the hope of achieving better results in the future. Once again, a conflict-of-interest situation holds the potential of leading a researcher to report results in a misleading and unethical manner. The medical profession has been fraught with serious ethical violations involving falsifying research results or failure to make public any actual or perceived conflict of interest. Recent examples

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include the following: (a) A researcher at the University of Virginia reported that there was no evidence that advertising affects underage drinking but failed to report that his institute is funded by a $2.5 million grant from Anheuser-Busch (Turner, 2009); (b) the U.S. Public Health Service (“Findings of Scientific Misconduct,” 2009) referenced a researcher at Harvard Medical School who falsified half of the physiological data from a major study of sleep apnea in obese patients so that the data would better match the research hypotheses; (c) Harris (2009) reported that one of the most published and highly respected researchers in anesthesiology admitted fabricating data and never conducted clinical trials for the 21 journal articles he had written (Pfizer had underwritten most of the research in which the researcher found that Pfizer drugs were effective); (d) Collier (2009) reported that a wellknown academic company published a fake journal in Australia for apparent purposes of advertising rather than advancement of scientific information; (e) Gorner (2000) reported that 96% of researchers who found favorable results for hypertension were funded by the producer of the drug, whereas only 37% of researchers not funded by the sponsoring company found favorable results. Two recommendations are made by the APA Task Force on External Funding (Pachter et al., 2007) to better protect the integrity of reporting research results in psychological journals: ■

■

Raw data intended to be published in a psychological journal should be available for independent review by any qualified scientist. Those psychologists who do participate in corporate sponsored research should be involved with the design and measurement of the study and contribute to the writing of any manuscript submitted to a psychology journal.

The accurate representation of research results can appear to be a straightforward process; however, as noted, many influences exist and sometimes prevail. As psychological research continues to become more complex and multifaceted, ethical principles and standards will become increasingly important in guiding psychologists in their important research contributions to the profession.

AVOIDING DUPLICATE PUBLICATION OF DATA The Ethics Code (APA, 2010a), Standard 8.13, Duplicate Publication of Data, states that “psychologists do not publish, as original data, data that have been previously published. This does not preclude republishing data when they are accompanied by proper acknowledgment” (p. 11). Psychologists facing pressures from upcoming tenure and promotion reviews and to increase their number of publications may be tempted to submit their research to multiple publications (either simultaneously or serially). They may be tempted to repackage or modify the focus or wording of a manuscript slightly and submit it as though these were unique and separate manuscripts. Doing so, however, violates basic tenets of the APA Ethics Code. These include Principle B, Fidelity and Responsibility, which states in part that psychologists “are aware of their professional and scientific responsibilities to society” (p. 3) and Principle C, Integrity, which states that “psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge, or intentional misrepresentation of fact” (p. 3). The APA Publication Manual (APA, 2010b) defines the duplicate publication of data as “the publication of the same data or ideas in two separate sources” (p. 13). It further defines the related concept of piecemeal publication as “the unnecessary splitting of the findings from one research effort into multiple articles” (p. 13). These two issues are addressed jointly in Standard 1.09, Duplicate and Piecemeal Publication of Data, which is part of a section titled Ensuring the Accuracy of Scientific Knowledge. Thus, both the duplicate and piecemeal publication of data are seen as inimical to promoting the accuracy of scientific knowledge.

Piecemeal Publication All authors who consider breaking a study into multiple publications should first consider the appropriateness of doing so. The APA Publication Manual (APA, 2010b) requires that authors doing so notify the editor of this fact, providing the rationale for doing so, sharing all requested data and 321

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supporting materials to the editor, and then leaving the decision on the appropriateness of submitting multiple manuscripts to the editor. There may be times when creating several manuscripts from one data set may result in “a clear benefit to scientific communication” (p. 14). For example, as Jones (1999) pointed out, “a large-scale or multidisciplinary project may be appropriate to publish in multiple reports” (p. 102). However, as stated, this process must be engaged in openly and without subterfuge. Because authors likely may be motivated to have as many publications as possible, or at least others may assume this, it is always best to leave piecemeal publication decisions up to the journal editors when considering this approach to publishing scientific work.

Duplicate Publication Reasons for prohibiting the duplicate publication of data given in the APA Publication Manual (APA, 2010b) include that it “distorts the knowledge base by making it appear that there is more information available than really exists” (p. 13), it wastes precious journal pages and the time and efforts of editors and reviewers, and it may leave other researchers with the impression that these findings have been replicated and thus that there is greater scientific support for them. The APA Publication Manual also points out that the duplicate publication of data may lead to charges of copyright violation because one may not “assign the copyright for the same material to more than one publisher” (p. 13), making this not just an ethics issue but a legal one as well. These issues have received wide attention among researchers and professional oversight organizations that are promoting high ethical standards for scholarship (Walter & Bloch, 2001). Susser and Yankauer (1993) noted that these practices have been described by multiple names to include prior, duplicate, repetitive, fragmented, and redundant publications. Walter and Bloch (2001) further described the practice of piecemeal publishing as “publishing in least publishable units” (p. 29). These authors have added to the reasons for avoiding this practice, stating that it “squanders journal space and may distort meta-analyses” (p. 29). Steinbok (1995) added that it also may harm a journal’s reputation as well as 322

that of the author’s academic institution, colleagues, and profession. At times, it may be appropriate to submit for publication material that previously has been published. The APA Publication Manual (APA, 2010b) allows for the publication of manuscripts that previously have been published in abstracted form such as the proceedings of conferences and meetings, “or in a periodical with limited circulation or availability (e.g., in a report by a university department, by a government agency, or in a U.S. dissertation)” (p. 13). Similar provisions are made for the republishing of “a ‘classic’ paper or a journal article as a book chapter, or an article in a journal whose readers may not have ready access to the original” (Walter & Bloch, 2001, p. 29). However, the APA Publication Manual (APA, 2010b) makes it clear that with the advent of the Internet and searchable online databases, such a practice will only rarely be considered justified. More appropriately, previously published material may be included in a new publication to “frame new research that follows up on previous work from the authors’ laboratory” (p. 14). When this is done, it is essential that all previously published work be identified as such through appropriate citations and referencing. The APA Publication Manual (APA, 2010b) provides specific criteria and requirements for this practice. These are: 1. The amount of duplicated material must be small relative to the total length of the text. 2. The text must clearly acknowledge in the author note and other relevant sections of the article (i.e., Method and/or Results sections) that the information was reported previously, and the citation to the previous work must be given. 3. Any republished tables and figures must be clearly marked as reprinted or adapted, and the original source must be provided both in the text and in a footnote to the table or figure. 4. The original publication venue must be clearly and accurately cited in the reference list. (p. 14)

Reanalysis of Published Data There are times, especially with longitudinal or multidisciplinary studies “when it is both necessary

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and appropriate to publish multiple reports” (APA, 2010b, p. 14). In longitudinal research, new data are obtained from the same individuals over time. Changes in these data over time necessitate the need for additional publications so that important scientific information may be shared. With multidisciplinary studies, manuscripts may be written based on the same data for different professional audiences and thus necessitate publications in the appropriate journals for different professional disciplines. This practice helps disseminate useful scientific information more broadly by making it more readily accessible to different professional audiences.

Submitting Manuscripts for Publication Lundberg and Flanagin (1989) have made it clear that every author who submits a manuscript for publication must “ensure that the information has not been previously published and will not be published elsewhere without permission of the editors” (p. 2003) and have recommended that this be done in a written statement that accompanies the manuscript when it is submitted for publication. This is consistent with requirements articulated in the APA Publication Manual (APA, 2010b), which include that all manuscript submissions be accompanied by a cover letter to the journal’s editor in which, among other things, the author includes information about any previous presentation of the data (e.g., at a scientific meeting), information about the existence of any closely related manuscripts that have been submitted for simultaneous consideration to the same or to another journal; and a copy of the permission granted to reproduce or adapt any copyrighted material from another source or a notice that permissions are pending. (p. 231) More succinctly, each cover letter that accompanies submissions for publication must include a statement that verifies that “the manuscript is original, not previously published, and not under concurrent consideration elsewhere” and must “inform the journal editor of the existence of any similar published manuscripts written by the author” (APA, 2010b, p. 243).

SHARING RESEARCH DATA FOR VERIFICATION In keeping with the goal of disseminating knowledge and advancing the science of our profession, psychologists generally make all data from their research available to other researchers and scholars for the purpose of replicating their findings. For researchers whose findings are unanticipated, different than previously published results, or in some other way noteworthy, the replication of their findings by other researchers can be seen as added support for their results. This is consistent with Lundberg and Flanagin’s (1989) recommendation that researchers be able to provide “the data on which the manuscript is based for examination if requested by the editors” (p. 2003). Standard 8.14, Sharing Research Data for Verification, of the Ethics Code (APA, 2010a) states in part: (a) After research results are published, psychologists do not withhold the data on which their conclusions are based from other competent professionals who seek to verify the substantive claims through reanalysis and who intend to use the such data only for that purpose, provided that the confidentiality of the participants can be protected and unless legal rights concerning proprietary data preclude their release. This does not preclude psychologists from requiring that such individuals or groups be responsible for costs associated with the provision of such information. (p. 11) This standard makes it clear that while psychologists must in general comply with requests for access to their data for the purposes of verifying their published results and conclusions, psychologists are not required to comply with all requests. First, the request must come from “other competent professionals” (APA, 2010a, p. 11) who have a stated goal of reanalyzing the data to see if the results and conclusions can be verified. Thus, researchers receiving such a request have the right to verify the credentials of the requesting professional to ensure that he or she is in fact a competent 323

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professional. This verification likely would involve a review of the other professional’s credentials, training, and research experience. This information should be made readily available through a careful reading of that professional’s curriculum vitae. If needed, other information could be obtained by visiting the website of the other professional’s institution or by directly asking questions to verify that the professional has the needed background, training, and experience to perform the appropriate statistical analyses. The other professional’s stated purposes for requesting the data also can be examined during this questioning to ensure that it is for the purpose stated in Standard 8.14, and only for that purpose. Second, researchers have the right to verify how requesting professionals will maintain the privacy of the study’s subjects and their data. But, whenever possible, researchers should “delete any personally identifiable information or code that would make it possible to reestablish a link to an individual participant’s identity” before releasing the data for reanalysis (APA, 2010b, p. 12). Additionally, before releasing any data, researchers must confirm that there are no “legal rights concerning proprietary data [that] preclude their release” (APA, 2010a, p. 11). Finally, the costs associated with copying and making available all the data from a large study can be quite significant. Standard 8.13 makes it clear that the requesting party bears the responsibility for all costs involved in the researcher complying with the request to provide data for the purposes of verifying the results. It would be reasonable for researchers to ensure that each of the abovementioned issues are addressed before releasing any data in compliance with this ethics standard. It is recommended that all such issues be addressed in a written agreement between the two parties before the data are shared (APA, 2010b) to ensure an understanding of the parameters of the agreement and the expectations of both parties. Possible limitations include who in addition to the requesting researcher may have access to the data (e.g., a research team under the requestor’s supervision, other colleagues at the requestor’s institution, etc.) and how the findings of the reanalysis will be disseminated. As the APA Publication Manual makes clear, authorship expectations for any publications 324

generated from the reanalysis of the data should be agreed on before the release and subsequent reanalysis of the data. Accordingly, it is recommended that researchers keep and safeguard all raw data from published studies for a minimum of 5 years after publication (APA, 2010b) so that other competent professionals may conduct reanalyses to verify these findings. Additionally, all other material relevant to the conduct of a study must be maintained for this time period as well so that other researchers may fully analyze the data. These materials include “instructions, treatment manuals, software, details of procedures, code for mathematical models reported in journal articles” (APA, 2010b, p. 12). These requirements in the APA Publication Manual are based on Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, of the Ethics Code (APA, 2010a), which requires psychologists to “maintain, disseminate, store, [and] retain . . . records and data relating to their professional and scientific work in order to . . . allow for replication of research design and analyses” (p. 9). It is also important that researchers who obtain funding from other sources do not accept any agreements that restrict their ability to share data from published studies (Mello, Clarridge, & Studdert, 2005). This practice most often has been reported when research has been funded by the pharmaceutical industry and practices such as ghost and guest authorship are utilized; and researchers are advised against entering such agreements (Pachter et al., 2007). These authors further recommended “that all raw data for any study published in a psychology journal should be made available to any qualified scientist, allowing for independent review of data and data analyses” (Pachter et al., 2007, p. 1010). In addition to the obligations placed on researchers receiving such requests to release copies of their data for the purpose of reanalysis and verification of their results and conclusions, requesting professionals also bear certain responsibilities (in addition to bearing financial responsibility for all reproduction and shipping costs). These responsibilities are outlined in the remaining portion of Standard 8.14, which states, “(b) Psychologists who request data from other psychologists to verify the substantive

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claims through reanalysis may use shared data only for the declared purpose. Requesting psychologists obtain prior written agreement for all other uses of the data” (APA, 2010a, p. 11). Thus, allowable uses of these data and obligations that must be fulfilled by requesting professionals are made quite clear. USING CONFIDENTIAL INFORMATION FOR DIDACTIC OR OTHER PURPOSES Confidentiality is an important issue for psychologists in all their professional roles. Because most clients and research participants anticipate confidentiality in professional relationships with psychologists (Miller & Thelen, 1986), it is essential that this issue be addressed as part of the informed consent process with each participant (APA, 2010a, Standard 4.02, Discussing Limits of Confidentiality, and Standard 8.02, Informed Consent to Research). Consistent with these standards, psychologists ensure that clients and research participants understand just what is and is not confidential, how confidential information will be protected, who may have access to confidential information and under what circumstances, and any laws or regulations that place limits on confidentiality. All this information should be shared with the research participants at the outset of the professional relationship so they may make an informed decision about participation (Barnett, Wise, Johnson-Greene, & Bucky, 2007). Furthermore, the Ethics Code, in Standard 4.01, Privacy and Confidentiality, highlights that “psychologists have a primary obligation and take reasonable precautions to protect confidential information” (APA, 2010a, p. 7), emphasizing the requirement that psychologists establish and enforce policies that protect and preserve each individual’s confidentiality to the extent agreed upon in the informed consent process. More generally, as Parker and Szymanski (1996) stated, researchers have an obligation “to protect the rights and welfare of persons participating in research, as well as of other individuals who may be affected by the research” to include “acquiring and documenting informed consent from each research participant (p. 162). Confidentiality generally is anticipated in professional relationships with psychologists to include research and scholarship. In fact, Standard 8.02,

Informed Consent to Research, specifies that any reasonably anticipated limits of confidentiality is one of the issues that should be included in each subject’s informed consent agreement (APA, 2010a). Yet, at times, it may be quite helpful to use clinical case examples in publications or presentations to illustrate points being made. The ability to do so is addressed in Standard 4.07, Use of Confidential Information for Didactic or Other Purposes. This standard states that “psychologists do not disclose in their writings, lectures, or other public media, confidential, personally identifiable information concerning their clients/patients, students, research participants . . . or other recipients of their services that they obtained during the course of their work” (APA, 2010a, p. 7) except under three circumstances. These circumstances include taking reasonable steps to disguise the identity of the individual, receiving that individual’s permission through the informed consent process, or being authorized to do so by law. It may be quite helpful to share information about a research participant or client in one’s professional writings to illustrate important points for the reader, but doing so without meeting one or more of these three conditions would be in direct contradiction of the General Principles of the APA Ethics Code of Beneficence and Nonmaleficence, Fidelity and Responsibility, Integrity, and Respect for People’s Rights and Dignity. Furthermore, such actions may violate numerous enforceable standards of the Ethics Code, including Informed Consent, Informed Consent to Research, Avoiding Harm, Exploitative Relationships, Conflict of Interest, Maintaining Confidentiality, Disclosures, and Use of Confidential Information for Didactic or Other Purposes. As is stated in the APA Publication Manual (APA, 2010b), failure to meet standards of confidentiality with research subjects or participants “can be grounds for rejecting a manuscript for publication or for retraction of a published article” (p. 16). A first step to the possible use of a client’s or participant’s confidential information in one’s scholarship is an open discussion with the client or participant. Consistent with the obligations stated in the Ethics Code, the individual’s options and right to freely refuse without penalty or consequences 325

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(Standard 8.02, Informed Consent to Research) must be clearly stated. As presented in the APA Publication Manual (APA, 2010b), when discussing these issues with clients or participants and seeking their informed consent to utilize their confidential information for one’s scholarship, “one must be careful not to exploit persons over whom one has supervisory, evaluative, or other authority” (p. 17). Thus, there should be no coercion, pressure, or perceived threat of withholding of services experienced by clients or participants when these discussions occur and such requests are made. Should the client or participant not consent to the use of confidential information in the psychologist’s scholarship an option is to appropriately disguise the individual’s identifying information in the written materials. In doing so, care must be taken to sufficiently disguise the client or participant’s information to include personal characteristics, name, diagnosis, life circumstances, and the like. Such modifications must create a meaningful change in the information presented so that the client or research participant cannot be identified. The APA Publication Manual (APA, 2010b) offers four recommendations for using confidential information in one’s scholarship without that individual’s consent. These are “(a) altering specific characteristics, (b) limiting the description of specific characteristics, (c) obfuscating case detail by adding extraneous material, and (d) using composites” (p. 17). When altering client or participant and case details, it is important not to lose the integrity of the case and fail to achieve the goals of using a clinical case example. The APA Publication Manual (APA, 2010b) makes this point in citing Tuckett (2000), who stated, “Such disguising of cases is a delicate issue because it is essential not to change variables that would lead the reader to draw false conclusions related to the phenomena being described” (p. 17). In such situations, the option of using composites or creating fabricated case examples may be viable alternatives. SERVING AS A REVIEWER Scholarly activities that contribute to the body of knowledge in the profession include conducting 326

research, authoring articles, and editing the work of others. Journal editors regularly receive submissions of manuscripts that describe research and other scholarly work. Editors must decide whether each manuscript is worthy of publication in their journal. They must determine if the manuscript is relevant to the scope and focus of their journal; if it makes a substantive contribution that is worthy of dissemination to other scholars; and if the design of the study, how the data were analyzed, the statements made, and the overall quality of the writing meet the journal’s standards for publication. As Bedeian (2004) stated, “Scientists (have) sought the competent appraisal and authentication of their work from disciplinary peers before it was entered into the archives of science as accepted knowledge” (p. 198). Chapter 8, The Publication Process, in the APA Publication Manual (APA, 2010b) details the editorial process for manuscripts that are submitted for publication, including the review process. Here the goal of the peer review process is articulated quite clearly: “To ensure the quality of each contribution—that the work is original, valid, and significant—scholars in the subspecialties of a field carefully review submitted manuscripts” (p. 225). Chapter 8 also provides an explanation of the masked review process along with an explanation of the roles and functions of reviewers.

Reviewers and the Integrity of the Editorial Process Editors rely on the peer review process to help them to make editorial decisions. Most journal editors rely on other psychologists who are experts in areas of scholarship relevant to the focus of a particular manuscript to participate in a masked peer review process. The masked component of the peer review process attempts to ensure that the identity of the author(s) is not made known to the reviewers. The feedback provided by reviewers can be of great value to authors as well. Frequently, even those manuscripts that eventually are accepted for publication will need some modifications before being accepted. Thus, reviewers provide an important service that can significantly affect the growing knowledge base of the profession. Taking the role of reviewer seriously and fully understanding the role and possible impact of a reviewer are of great importance.

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The Ethics Code (APA, 2010a) addresses the role of the reviewer in Standard 8.15, Reviewers, which states that “psychologists who review material submitted for presentation, publication, grant, or research proposal review respect the confidentiality of and the proprietary rights in such information of those who submit it” (p. 11). Reviewers typically are selected by editors to review a particular manuscript because of their expertise and interest in the particular aspects of psychology being addressed in the manuscript. As such, reviewers of a manuscript frequently will be engaged in scholarship in the same, or closely related, area of psychology. When reading the manuscript under review, there may be aspects of it that are relevant to the reviewer’s own work. As is stated in the ethics standard, reviewers must treat all material in manuscripts under review as confidential and not utilize it in any way in their own scholarship (APA, 2010b, Section 1.14, Reviewers).

an author or authors of a manuscript. This may be the result of the narrow range of scholarship involved, multiple citations to the author’s work in the manuscript, or a particular writing style of the author. Reviewers’ suggestions, comments, and recommendations should be based solely on the content and quality of the manuscript. The review process never should be used to hold back or advance the scholarship or career of another unfairly. Furthermore, if reviewers surmise the identity of an author (who could be a close friend or a competitor, etc.), they must question their ability to provide a fair, impartial, and objective review of the manuscript. Such concerns should be discussed immediately with the editor and a decision should be made about the appropriateness of the reviewer conducting a review of this particular manuscript. Standard 3.05, Multiple Relationships, and Standard 3.06, Conflicts of Interest, of the Ethics Code (APA, 2010a) are particularly relevant in this regard.

Competitors A related issue concerns reviewing manuscripts of competitors or other psychologists conducting research in the same aspect of psychology. Reviewers treat the work of other scholars with respect and do not use the review process as an opportunity to keep the work of competitors out of print. Reviewers must be guided by the General Principles of the Ethics Code (APA, 2010a) as they carry out these important duties. These include Beneficence and Nonmaleficence (doing good and minimizing harm to others), Fidelity and Responsibility (only acting in ways consistent with their professional obligations), Integrity (being honest and accurate in their work), Justice (treating all others fairly and with equal quality), and Respect for People’s Rights and Dignity (treating all others with equal respect). Thus, reviewers must understand the trust placed in them as they carry out their role in the editorial review process, which is so essential to ensuring that the best scholarship in the profession is disseminated to others and that scholarship not worthy of publication is not.

Identity of Author Despite the masked review process, it may at times be possible for a reviewer to determine the identity of

Reviewer as Role Model Although reviewers serve in the role of gatekeepers who endeavor to uphold the high standards of scholarship of their journal, they also must conduct themselves as professionals and provide reviews in a respectful and helpful manner. Reviewers typically are expert in their particular aspects of psychology, but they may not fully understand their role as a reviewer. It therefore is important that editors ensure that reviewers understand their role, mission, and function. Providing new reviewers with some orientation to this role can be quite important. Charles J. Gelso, editor of the journal Psychotherapy: Theory, Research, Practice, Training through 2009, developed a set of guidelines that he sent to all potential reviewers for the journal to be read and agreed on before being accepted as a reviewer for the journal. These guidelines were developed by Gelso in 1981 when he was an associate editor of the Journal of Counseling Psychology with the assistance of Sam Osipow, editor for that journal. Gelso updated these guidelines most recently in 2003. These very helpful guidelines are provided in Appendix 15.1 at the end of this chapter. Although other editors may have created similar guidelines for their journals, these provide a helpful representative example. 327

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Important points to emphasize from Gelso’s reviewer guidelines include the following five criteria for reviews: educational value, clarity, objectivity, thoroughness, and tact. Each of these points is emphasized for reviewers so that they can provide a high-quality review that meets the objectives of a review process. For example, reviewers may read manuscripts that are substandard and that have no evident potential for publication, regardless of the amount of revision performed. Examples include those manuscripts that are fundamentally flawed in their design. Other manuscripts may be the first submission of a student or early career professional that do not meet the criteria of scholarship of the journal. Each of these should be reviewed with Gelso’s five points in mind. Reviewers should consider their role in providing feedback to colleagues. A review that is respectful and not condescending is more likely to be of value to a budding scholar. Those that are overly critical, condescending in tone, or outright hostile could derail a potentially important and productive research career or cause a researcher to never again submit a manuscript to that particular journal. Well-written reviews will acknowledge positive aspects of a manuscript, provide feedback that may be helpful for improving it, and raise questions for the author(s) to consider that might assist further developing the ideas and research. Reviewers not only are gatekeepers but also are educators and mentors. Even when manuscripts are rejected for publication, the impact of the review process should be helpful, with the author(s) receiving information that can help them improve the manuscript and develop as a professional. Implied in this discussion is that reviewers will take sufficient time to provide a thorough and detailed review. Reviewers who are overly brief or general in their feedback will not likely be helpful to authors. Service as a reviewer involves a substantial time commitment. All reviewers should question their motivation for serving in this role. There is status and prestige that comes with being a reviewer (or other member of an editorial board), to include having one’s name listed on the masthead of a journal and being able to list this position on one’s curriculum vitae. This can be an important form of

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scholarship that may enhance the career progression of some scholars. But, there is also a significant responsibility. This responsibility goes beyond the gatekeeper function and is encompassed in Gelso’s guidelines (see Appendix 15.1).

Reviewer as Mentor Mentoring has been described as “dynamic, emotionally connected, reciprocal relationships in which the faculty member or supervisor shows deliberate and generative concern for the student or trainee beyond mere acquisition of knowledge or clinical skill” (Johnson, 2008, p. 31). Mentoring is seen as an important aspect of most psychologists’ professional development and an important obligation for senior psychologists to fulfill in their professional roles with junior or less experienced colleagues (Barnett, 2008). Specific activities that may be a part of a mentoring relationship include teaching, encouragement, support, and collegiality (Ponce, Williams, & Allen, 2005). An argument can be made that reviewers are in a unique position to serve in a mentoring role and that they should, in fact, see this as an essential aspect of their reviewing duties. By seeing one’s role as encompassing a mentoring component and intentionally integrating the mentoring role into the functions of a reviewer (Johnson, 2002), psychologists may serve the profession in a much broader manner than merely serving in the gatekeeper role typically associated with the review process. Fulfilling a mentoring role in addition to reviewers’ other duties are consistent with the aspirational ideals of the profession as articulated in General Principle A, Beneficence and Nonmaleficence, of the Ethics Code (APA, 2010a), which states that “psychologists strive to benefit those with whom they work and take care to do no harm” (p. 3). It is hoped that all psychologists serving in the role of reviewer will embrace the role of mentor as well and integrate it into this important work. The role of mentor by more senior reviewers can be carried out with students and junior colleagues who also participate in the review process. Some journal editors, however, require that additional reviewers be identified.

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CONCLUSION This chapter has addressed the ethics issues relevant to scholarship in the profession of psychology. Relevant sections of the Ethics Code (APA, 2010a) and the APA Publication Manual (APA, 2010b) have been highlighted and discussed in light of the relevant professional literature to promote ethical conduct. Addressing these issues will help ensure the integrity of research findings and their dissemination. Commonly faced ethical dilemmas and frequently occurring challenges have been addressed and recommendations have been provided for ethically and effectively engaging in scholarship. With attention to the issues raised and recommendations made, the highest ethical ideals of the profession of psychology can be achieved. APPENDIX 15.1: GUIDELINES FOR EFFECTIVE MANUSCRIPT EVALUATION, BY CHARLES J. GELSO Central publication outlets in any scientific/ professional field both reflect the substance of that field and shape, in critical ways, the knowledge and beliefs of that field. The journal review process is at the heart of what scholarly journals offer to readers, authors, and the discipline. A vital aspect of the review process is the written evaluation of manuscripts performed by members of the editorial board and ad hoc reviewers. Although editors and associate editors make final decisions about manuscripts, the editorial consultants provide the most essential input for those decisions, and the reviewer’s written evaluations are a crucial part of that input. The quality of manuscript evaluation has for many years been a concern throughout the scholarly publication world. One of the problems reviewers often encounter is the lack of guidelines or general criteria for effective reviews. In an effort to aid in the review process, I suggest the following five criteria: (a) educational value, (b) clarity, (c) objectivity, (d) thoroughness, and (e) tact. Each of these is discussed below.

Educational Value Is the essential role of Psychotherapy reviewers and editors that of “gatekeeper” or “educator”?

A gatekeeper attempts to keep out all of the “junk” from the journal’s pages, so as not to confound the archives of our science with mediocrity and worse. Those espousing this role might see themselves as discriminative, selective, and sometimes punitive in their efforts. The educator’s job, on the other hand, is to disseminate knowledge and consequently to stimulate authors to improve their communication and methodology. Those espousing such a role would likely view themselves as more consultative, helpful, and supportive than those in the gatekeeper role. Of course, we oversimplify the world with such a dichotomy, but at the same time it is likely that editors and journals lean toward one side or the other of this gatekeeper–educator continuum. Additionally, it is useful to make explicit which of these two roles should be most prominent. It is the role of educator that is endorsed in Psychotherapy. This is not to imply that reviews should be uncritical. They naturally must be critical. It does imply, however, that it is not enough simply to accept or reject a paper and communicate that to the authors. The process of submitting a manuscript and receiving an editorial evaluation should be a positive educational experience for authors. Thus, in addition to helping editors make decisions, manuscript reviews should be knowledgeable critiques aimed at helping authors improve their scientific functioning, for example, writing, thinking, manuscript preparation, methodology.

Clarity A clearly written review should contain two elements. First, it is grammatically readable to both editor and author(s). Second, it is concrete and specific enough that the author can make operational sense of what is being said, what the criticisms are, and what suggestions are being made. Sweeping criticisms (e.g., “this paper has little to offer”) without specific examples of what is impeding the paper’s contributions are unhelpful. It is helpful, however, to give specific illustrations of problems and suggestions. Authors need clear feedback on which suggestions the reviewer believes should be required, in contrast to suggestions the reviewer thinks the author should

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simply consider. This applies regardless of whether or not the reviewer recommends acceptance. If the manuscript is rejected, at least the author will have a sense of the importance of each suggestion. It is also helpful to provide specific references when alluding to this or that literature. The converse, a bald statement to the effect that the manuscript does not make connections to the literature, can be confusing and frustrating to editor and author.

Thoroughness An effective review should attend to such features in the manuscript as (a) how clearly the purposes are presented and then connected to what follows; (b) the acceptability of the sampling (e.g., size and selection procedures); (c) the soundness of the methodology in light of the topic and purposes; and (d) the cogency of the conclusions, for example, for an empirical piece, the connection of the conclusions to the data and the purposes. For conceptual pieces, the quality and cogency of the theoretical arguments must also be addressed. A thorough review will also attend to such factors as the importance of the piece and the quality of the writing. The reviewer must at once put aside parochial views of what is and is not relevant to the field and, with some perspective, make a judgment on importance. Lucid writing is, of course, a primary concern and needs to be addressed in the review. It would require a manuscript in itself to respond in detail to each of these elements. Furthermore, every reviewer naturally has areas of strength and weakness, such that he or she cannot comment with equal competence on all aspects of the manuscript. Yet, within the context of this inevitable limitation, every review should explicitly address methodology (for empirical pieces), theoretical coherence (especially for theoretical pieces), importance, and writing. The length of a review is only one indicator of its thoroughness. At the same time, it may be helpful for reviewers to know the editor’s view of the minimum length of a sound (qua thorough) review. Experience suggests that it is most difficult to perform a thorough review in less than a about a singlespaced page. On the other hand, reviews that are much more than two pages may reflect overediting. 330

Objectivity Perhaps a better label for this criterion is “controlled subjectivity.” Although the editorial consultant’s subjective reactions inevitably enter into judgments about the manuscript, it is important that the reviewer be aware of subjectivity and indicate that awareness in the written review. As a wise reviewer once suggested, “I believe that the review should convey the reviewer’s awareness that these are many times personal judgments and that a review would appropriately be sprinkled with ‘as I see it,’ ‘my attitude toward . . .,’ and ‘my question about this procedure is. . . .’” I would add that as much as possible the reviewer should minimize the effect of personal biases or prejudices on the manuscript review. For example, any paper deserves to be evaluated on its own merit, rather than on the basis of the reviewer’s like or dislike of the topic. There will be understandable instances when a reviewer cannot transcend personal biases, for example, when a particular treatment procedure runs deeply counter to the reviewer’s philosophy or values. In such cases, the reviewer can either return the manuscript with a clarifying note or admit in the review that such biases are entering into the evaluation.

Tact Any piece of work should be evaluated with consideration of the author’s feelings and with respect toward its originator. Particularly eschewed are evaluations that contain a hostile or demeaning flavor. The review must naturally be a critique, and a sound one at that. Nor is it being suggested that the reviewer refrain from honestly conveying what is seen as the limitations of the study or theory. Even when the reviewer believes that a manuscript should be rejected and should not be submitted elsewhere, this may be honestly stated. It is the manner in which this is done rather than the substance of the review that can be demeaning. In trying to take the perspective of the author, it may be helpful to remember your own reactions upon receiving negative reviews of your work. Psychotherapy will likely be rejecting most of the work that is submitted to it. We need not add insult to injury when recommending rejections. At the same time, it is true that some of the material

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that is submitted is highly deficient, to the point of creating exasperation in the reviewer. In such cases, we plead for restraint or, at a minimum, an admission of these feelings openly rather than allowing them to create a demeaning flavor to the review. It might help to put our therapeutic hats on in such cases.

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Louw, D. A., & Fouché, J. B. (1999). Authorship credit in supervisor–student collaboration: Assessing the dilemma in psychology. South African Journal of Psychology, 29, 145–148.

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Ponce, A. N., Williams, M. K., & Allen, G. J. (2005). Toward promoting generative cultures of intentional mentoring within academic settings. Journal of Clinical Psychology, 61, 1159–1163. doi:10.1002/ jclp.20157 Reist, D., & VandeCreek, L. (2004). The pharmaceutical industry’s use of gifts and educational events to influence prescription practices: Ethical dilemmas and implications for psychologists. Professional Psychology: Research and Practice, 35, 329–335. doi:10.1037/0735-7028.35.4.329 Rennie, D., & Flanagin, A. (1994). Authorship! Authorship! Guests, ghosts, grafters, and the two-sided coin. JAMA, 271, 469–471. doi:10.1001/jama.271.6.469 Roig, M. (1999). When college students’ attempts at paraphrasing become instances of potential plagiarism. Psychological Reports, 84, 973–982. doi:10.2466/ PR0.84.3.973-982

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THE RESPONSIBLE CONDUCT OF PSYCHOLOGICAL RESEARCH: AN OVERVIEW OF ETHICAL PRINCIPLES, APA ETHICS CODE STANDARDS, AND FEDERAL REGULATIONS Celia B. Fisher and Karyn Vacanti-Shova

Unparalleled growth in psychological science beginning in the 20th century has and will continue to make significant contributions to society’s understanding of biological, cognitive, emotional, cultural, and social processes characterizing and influencing adaptive and maladaptive behavior of individuals and groups as well as the extent to which interventions and policies succeed in promoting the development of persons and organizations, preventing risk, and remediating psychological disorders and social problems. Increased public recognition of the value of social research has been accompanied by heightened sensitivity to the obligation to conduct social science responsibly. The formidable task of ensuring ethical competence in psychological research depends on sensitive and informed planning by scientists who possess the ethical commitment, awareness, and competence to ensure that research meets the highest principles of scientific design and human participant protections. This chapter provides a broad overview of organizational and federal guidelines governing the responsible conduct of psychological research. We begin with discussion of fundamental requirements for ethical decision making for psychological science incorporating a goodness-of-fit ethics perspective (Fisher, 2002a, 2003a; Fisher & Goodman, 2009; Fisher & Masty, 2006; Fisher & Ragsdale, 2006).

Major portions of the chapter address six major domains of research ethics responsibilities: institutional review board (IRB) review, informed consent, confidentiality, deception research, conflict of interest, and reporting conflict of interest. (More information on ethical issues with vulnerable populations can be found in Chapter 17 of this volume; on Internet research in Chapter 18 of this volume; on deception research in Chapter 19 of this volume; and on research involving animals in Chapter 20 of this volume.) A significant portion of the chapter addresses informed consent issues because the requirements of informed consent encompass descriptions of many essential participant protections required by law and the profession of psychology. These protections include discussion of research risks and benefits, research compensation, voluntary participation, and special considerations for children and adults with questionable capacity to consent, as well as when it is ethically appropriate to dispense with part or all of informed consent requirements. Details on the relevance of the Health Insurance Portability and Accountability Act (HIPAA; 1996) to the conduct of research creating, using, or disseminating protected health information is also provided. We conclude the chapter with an illustration of how the goodness-of-fit ethics framework can enhance the responsible conduct of multicultural research.

Portions of this chapter are reprinted from Decoding the Ethics Code: A Practical Guide For Psychologists (updated 2nd ed.), by C. B. Fisher, 2012, Thousand Oaks, CA: Sage. Copyright 2012 by Sage Publications, Inc. Reprinted with permission. DOI: 10.1037/13272-016 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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ETHICAL DECISION MAKING AND THE RESPONSIBLE CONDUCT OF RESEARCH The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010a) and the Code of Federal Regulations (C.F.R.) Protection of Human Subjects (Department of Health and Human Services [DHHS], 2005) provide a set of aspirational principles and behavioral rules written broadly to apply to researchers’ varied roles and the diverse contexts in which research is conducted. In their everyday activities, research psychologists will find many instances in which familiarity with and adherence to specific regulations and Ethical Standards provide adequate foundation for ethical actions. There will also be many instances in which (a) the means by which to comply with a standard are not readily apparent, (b) two seemingly competing standards appear equally appropriate, (c) application of a single standard or set of standards appears consistent with one aspirational principle but inconsistent with another, or (d) a judgment is required to determine whether exemption criteria for a particular standard are met. This section discusses ethical attitudes and decision-making strategies that can help psychologists prepare for, identify, and resolve ethical challenges as they continuously emerge and evolve in the conduct of research.

Ethical Commitment Ethical commitment refers to a strong desire to do what is right because it is right (Josephson Institute of Ethics, 1999). In psychology, this commitment reflects a moral disposition and emotional responsiveness that moves research psychologists to creatively apply the federal regulations and the Ethics Code principles and standards to the unique ethical demands of the scientific context (Fisher, 2012). The desire to do the right thing often has been associated with moral virtues or moral character defined as a disposition to act and feel in accordance with moral principles, obligations, and ideals—a disposition that is neither principle bound nor situation specific (Beauchamp & Childress, 2001; MacIntyre, 1984). Virtues necessary for the conduct of responsible research are dispositional habits acquired 336

through social nurturance, education, and science mentoring that provide psychologists with the motivation and skills necessary to apply the ideals and standards of psychological science (Fisher, Fried, & Feldman, 2009; Fisher, Fried, Goodman, & Kubo Germano, 2009; Fisher, Wertz, & Goodman, 2009; Jordan & Meara, 1990; National Academy of Sciences, 1995). For disciplines such as psychology, in which regulations and organizational guidelines for research dictate the general parameters but not the contextspecific nature of ethical conduct, ethical commitment is reflected by behaviors stemming from the virtues of conscientiousness, discernment, and prudence (Fisher, 2012). A conscientious researcher is motivated to do what is right because it is right, diligently tries to determine what is right, and makes reasonable attempts to do the right thing. A discerning investigator brings contextually and relationally sensitive insight, good judgment, and appropriately detached understanding to determine what is right. And a prudent scientific psychologist applies practical wisdom to ethical challenges leading to right solutions that can be realized given the nature of the problem and the participants involved.

Ethical Awareness Ethical commitment is just the first step in effective ethical decision making. Good intentions are insufficient if psychologists fail to identify the ethical situations to which they should be applied. Conscientious psychologists understand that identification of situations requiring ethical attention is dependent on familiarity and understanding of relevant federal guidelines and organizational codes of conduct applicable to their specific work-related activities. Too often psychologists approach ethics as an afterthought to research designs. Ethical planning based on familiarity with virtues, foundational principles, ethical standards, professional guidelines, state and federal laws, and organizational and institutional policies should be seen as integral rather than tangential to psychologists’ work. Familiarity with the rules of conduct set forth in regulation and the Ethical Standards enables psychologists to take preventive measures to avoid the harms, injustices, and violations of participant rights and

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inadequate protection of their welfare. Another important element of information gathering is identifying and understanding applicable laws, government regulations, and institutional and organizational policies that may dictate or limit specific courses of actions necessary to avoid or resolve an ethical problem.

Goodness-of-Fit Ethics Ethical commitment and well-informed ethical planning will reduce but not eliminate ethical challenges that emerge during the course of research. Ethical problems often arise when two or more principles or standards appear to be in conflict, from unforeseen reactions of participants, or unexpected events. There is no ethical menu from which the right ethical actions can simply be selected. Many ethical challenges are unique to time, place, and persons involved. The very process of generating and evaluating alternative courses of action helps place in vivid relief the moral principles underlying such conflicts and stimulates creative strategies that may resolve or eliminate them. Goodness-of-fit ethics (Fisher, 2002a, 2003a; Fisher & Goodman, 2009; Fisher & Masty, 2006) conceptualizes research vulnerability (participant susceptibility to research risk) as the joint product of participant characteristics and the research context. From this perspective, harms produced by participant–research interactions can be minimized by fitting ethical procedures to participant susceptibility to or resilience against research harms. Goodness-of-fit ethics involves dual attention to characteristics of participants and the research context that may conjointly create or exacerbate research vulnerability. Such analysis is followed by exploration of alternative approaches to shaping the research design and ethical procedures that will maximize scientific advancement and the protection of participant and social welfare (Fisher & Ragsdale, 2006). To identify and minimize risks emerging from the intersection of population and research characteristics, the goodness-of-fit approach encourages investigators to ask three questions: What special life circumstances may render participants more susceptible to risks that arise in this research design? What aspects of the methodology, implementation, or dissemination

may create or exacerbate such research risks? And, how can research procedures be fitted to participant characteristics to best minimize risk? (Fisher, 2003b; Masty & Fisher, 2008). For example, in a recent study, Fisher (2010) drew on data on misconceptions about and mistrust in HIV vaccine clinical trials among intravenous drug users (IDUs) to develop procedures that could enhance consent preparedness of this population. IDUs account for almost one third of HIV/AIDS cases in the United States (Centers for Disease Control and Prevention, 2009). When designing HIV vaccine clinical trials, investigators must consider both the potential benefits to the IDU population of research leading to the discovery of an effective HIV vaccine and the characteristics of this population (e.g., lack of education, health care disparities, social stigma) that require special ethical considerations for ensuring informed, rational, and voluntary consent. Fisher (2010) created and empirically evaluated the effectiveness of a brief, pictorially illustrated, population-sensitive lesson on the purpose and nature of HIV vaccine trials that specifically addressed issues of concern to the IDU population. She found that exposure to the lesson significantly increased IDUs’ knowledge of inclusion criteria, random assignment to placebo, likelihood of false-positive HIV test results, and the experimental blind and reduced misconceptions that the vaccine can cause participants to acquire or transmit HIV. In addition, although not directly addressed in the lesson, exposure significantly increased IDUs’ trust in investigators and sponsors of these trials.

Colearning Colearning is a goodness-of-fit process whereby perspectives from the prospective participant populations are used to identify ethical issues and construct ethical procedures (Fisher, 1999, 2002b). It enables researchers to fit research methods and ethical procedures to the needs and values of the participant population (Fisher & Ragsdale, 2006) and assumes that ethical decision making may be inadequate if it fails to consider the views of participants or their representatives (Fisher, 1999, 2000b, 2002a). A second substantive assumption of colearning is that researchers, participants, and participant communities have 337

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equally important but different expertise in areas that are essential to the conduct of responsible science. Although researchers have expertise in the extant research literature and the research methods that can be utilized to study public health concerns, prospective participants and their community representatives have expertise in what they think is important to study, how they will react to planned procedures, the subjective risk–benefit balance of the research, and the moral and cultural frameworks informing their perspectives (Fisher, 1997, 1999, 2000b; Fisher & Goodman, 2009; Stiffman, Freedenthal, Brown, Ostmann, & Hibbeler, 2005). As important as gaining participant perspectives is to the development of population-fitted ethical procedures, these perspectives must inform, but cannot substitute for, the ethical decision-making responsibilities of psychological scientists. Participant opinions help to bring into practical application aspirational moral principles and behavioral guidelines in research procedures that reflect the values and merit the trust of participants (Fisher, 2000a). We next turn to specific domains of ethical awareness essential to the responsible conduct of psychological science. INSTITUTIONAL APPROVAL AND THE RESPONSIBLE CONDUCT OF RESEARCH The responsible conduct of psychological research depends on ethically informed planning by psychologists and careful review by federally mandated IRBs. The National Research Act of 1974, Public Law 93-348, mandates that universities receiving federal funding for biomedical or behavioral research must establish an IRB. Codified in Title 45, Part 46 of the C.F.R. (DHHS, 2005), IRBs must ensure that federal regulations are met and that research participants’ rights and welfare are protected. Institutions with IRBs found to be in noncompliance with regulations can lose federal funding for both their research and student programs. The diversity of expertise and wide latitude in decision making given to individual IRBs under federal regulations can be intimidating to psychologists who must gain IRB approval before conducting their research (Standard 8.01, Institutional 338

Approval; De Vries, DeBruin, & Goodgame, 2004; DuBois, 2004; Eissenberg et al., 2004). As a first step in developing IRB applications, psychologists should familiarize themselves with federal regulations and the Office of Human Research Protection’s (n.d.) “Frequently Asked Questions” website.

Moral Principles Guiding Institutional Review and Psychological Science IRBs are charged with ensuring that investigators protect the rights and welfare of research participants. Specific IRB requirements reflect three general moral principles articulated by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1979) and adapted in three corresponding aspirational principles within the APA Ethics Code (Principles A, Beneficence and Nonmaleficence; Principle D, Justice; and Principle E, Respect for People’s Rights and Dignity). Beneficence and nonmaleficence requires IRBs to ensure that research submitted for their review is designed to maximize benefits for science, humanity, and research participants and to avoid or minimize risk or harm. Applied to the research context, the principle of justice obligates IRBs to ensure that investigators will equitably select individuals to participate in research and that the potential benefits and costs of research participation are distributed fairly among diverse groups. Principle E, Respect for People’s Rights and Dignity, requires IRBs to ensure that in research protocols submitted for review, informed consent and confidentiality procedures protect the autonomy and privacy rights of participants.

Scientific Validity and IRB Risk–Benefit Calculation A common error made by social behavioral investigators submitting protocol applications for IRB review is omitting an explanation of the scientific justification for the study on the basis of the erroneous assumption that IRBs are not responsible for evaluating scientific merit. Although IRBs should never take on the role of a scientific peer review panel, they are obligated to evaluate the balance of potential research benefits to risks. Because a study that lacks methodological validity cannot provide

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scientific or social benefits, a research protocol that poses even minimal risk may not be approved if an IRB has no evidence that the design has scientific merit (Fisher & Rosendahl, 1990). Psychologists can facilitate approval of their protocols by including in their IRB applications brief explanations of the scientific justification for their selection of research questions, methods, and participant populations (Fisher, 2002b, 2012).

APA Ethics Code Requirements for Institutional Approval Standard 8.01, Institutional Approval, of the Ethics Code (APA, 2010a) has four basic requirements. First, psychologists must know if and from whom institutional approval is required. All institutions receiving federal funding for biomedical or behavioral research are required to establish IRBs to protect the rights and safety of research participants. In addition, many social welfare agencies, health care facilities, schools, correctional facilities, businesses, and other public and private organizations have their own internal review requirements for research. Psychologists conducting research in these settings may need to obtain approval from both their institutional IRB and the ethics review board for these sites. Federal guidelines list activities that are exempt from institutional review; however, the exempt status of any specific project must be approved by an institution’s IRB (DHHS, 2005). Depending on institutional policy, psychology laboratory course experiments may not require review (Fisher, 2012). The remaining three requirements within the standard are that applications for institutional review must be accurate, approval must be obtained before the research is conducted, and research procedures must follow the approved protocol. Failure to meet any of these conditions violates this standard. It is not unusual for methods to be modified during different phases of research. Any changes in participant informed consent language or procedures, compensation, confidentiality protections, or methods that increase participant risk or safety should be resubmitted for institutional approval before implementation. Psychologists should consult the appropriate IRB about the need to provide

an informative memo or to resubmit proposals for minor changes unrelated to participant protections or welfare.

Defining Minimal Risk Risks associated with social–behavioral research often meet the federal definition of minimal risk (Citro, Ilgen, & Marrett, 2003; Fisher, Fried, & Feldman, 2009), yet this term is poorly understood by investigators and IRBs as evidenced by widespread inconsistency among different IRBs in applying the definition to evaluate the risk level of surveys and other methods commonly used in psychological research (Janofsky & Starfield, 1981; Shah, Whittle, Wilfond, Gensler, & Wendler, 2004). Lack of consensus between IRBs and investigators on the level of risk not only presents barriers to expedited review, but also can result in informed consent language that overstates participation risk. One reason for this confusion is the ambiguity of the regulatory language for the definition of minimal risk, which varies within the regulations depending on whether the research includes prisoners, children, or adults with impaired cognitive capacity. Another reason is that examples in federal regulations are drawn largely from biomedical research. Subpart A (known as the Common Rule) of federal regulations gives the following definition: Minimal risk means that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests. (DHHS, 2005, 45 C.F.R. § 46.102(i)) Federal regulations go into some detail describing when the collection of blood samples and other biological specimens should be considered minimal risk, but they provide no such detail on which types of routine psychological examinations or tests meet this criteria. This often leaves psychological scientists and their IRBs at odds in interpreting level of risk. As described by Fisher, Kornetsky, and Prentice (2007), the DHHS Secretary’s Advisory Committee for Human Research Protections (SACHRP; 339

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2005) addressed this problem for research involving children by generating a list of routine procedures for the “well-child” pediatric visit and the pediatric mental health interview as reasonable benchmarks to determine routine medical and psychological examinations or tests. The well-child routine procedures cited in this report included questions regarding potential child abuse and family conflict for younger and older children and sexual and other health-compromising behaviors for adolescent patients (SACHRP, 2005). Investigators working with adults might find it useful to generate an equivalent list to determine minimal risk benchmarks for this population. Even when biomedical examples are provided in federal regulations, IRBs and investigators often are unsure whether assessment of minimal risk must be limited to these specific examples or other procedures judged to be equivalent. Among the criteria identified by SACHRP for determining minimal risk equivalence are (a) the duration and frequency of the procedure, (b) the cumulative risk posed by a set of procedures that individually might be equivalent but cumulatively be greater in probability or magnitude of risk than those in daily life or routine physical or psychological examinations, and (c) the degree to which any harms if they do occur are transient and reversible (Fisher et al., 2007; Institute of Medicine [IOM] of the National Academies, 2004; SACHRP, 2005).

Exempt Research and Expedited Review Federal regulations 45 C.F.R. § 46.101(b)(1–6) (DHHS, 2005) detail a narrow range of research with human participants that are exempt from required IRB review. Psychologists seeking to apply for such an exemption should remember that the determination of whether a study meets the criteria for exempt status is the responsibility of the IRB and not the individual investigator. Thus, investigators must submit to the appropriate IRB a formal request and justification for exempt status. Federal regulations also permit IRBs to conduct an expedited review when the research protocol submitted is judged to present no more than minimal risk to participants or entails minor revisions in an already approved protocol (DHHS, 2005, 45 340

C.F.R. § 46.110). When meeting expedited review criteria, the evaluation may be carried out by the IRB chair or designee in lieu of full board review. Most psychological studies meet these criteria, but in the perception of many in the social and behavioral science research community, IRBs often overestimate social behavioral research risks and thus fail to expedite protocols that meet the federal criteria (National Research Council, 2003). Applying the regulatory definition of minimal risk has been confusing for IRBs and investigators alike (Fisher et al., 2007). One reason for this confusion is that federal guidance on expedited categories is short on examples of social behavioral research (DHHS, 1998). To facilitate expedited review of new IRB applications, psychologists should carefully document their rationale for why the research is minimal risk. For continuing review applications, psychologists should detail how the research plan for the coming year does not differ in significant ways in the procedure and in the protections for human participants that previously were IRB approved.

Justifying Treatment and Control Conditions: Clinical Equipoise Important questions of treatment efficacy and effectiveness driving the conduct of randomized clinical trials for mental health treatments raise, by their very nature, the possibility that some participants will fail to respond to treatment conditions or experience a decline in mental health during the trial. The ethics of intervention research requires clinical equipoise— genuine uncertainty on the part of the scientific community regarding the comparative therapeutic merits of each arm in a clinical trial. IRBs generally will not approve research if either a treatment or control condition has been empirically substantiated as inferior. This does not exclude psychologists from conducting studies that seek to test new treatments for nonresponders to empirically validated interventions, to improve upon existing treatments, to study the practical effectiveness of interventions validated under highly controlled conditions, or to study the generalizability of validated treatments to unstudied populations (Fisher, 2012). IRBs do expect investigators to provide evidence explaining why they believe

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(a) participants placed in a control group will not be deprived of an available treatment with empirically validated effectiveness, and (b) individuals assigned to the experimental intervention will not be exposed to greater risk than if they had been assigned to a control or standard treatment condition. To comply with IRB requirements to minimize risk and Ethics Code Standard 3.04, Avoiding Harm, research psychologists should develop procedures to identify and address the possibility of nonresponders to the treatment condition or those who experience a decline in mental health during a clinical trial. Such steps can include (a) scientifically and clinically informed inclusion and exclusion criteria for patient participation; (b) the establishment of a data safety monitoring board to evaluate unanticipated risks that may emerge during a clinical trial; and (c) before the initiation of the research, establishing criteria on the basis of anticipated risks for when a trial should be stopped to protect the welfare of participants (Fisher, 2012).

Ensuring Consent to Research Is Informed, Rational, and Voluntary Within the context of research, informed consent requirements reflect Ethics Code Principle E, Respect for People’s Rights and Dignity. Guided by this aspirational principle, psychological scientists must ensure that decisions to participate in research are informed, voluntary, and rational. The specific Ethics Code standards applying to informed consent for research are consistent with federal regulations for the Protection of Human Subjects (DHHS, 2005, 45 C.F.R. § 46.116). With few exceptions, psychologists must obtain and document written or oral consent in the manner set forth in Ethics Code Standard 3.10, Informed Consent, and Standard 8.02, Informed Consent to Research.

Language and Terminology The informed component of consent requires that individuals are provided all the pertinent information needed to make a reasoned choice about whether they wish to participate in a study. This includes providing information in a language and at a language level understood by prospective participants and, where applicable, their legally authorized

representative (Standards 3.10(a) and 3.10(b)). For example, psychologists must use appropriate translations of consent information for individuals for whom English is not a preferred language or who use sign language. Psychologists also should adjust reading and language comprehension levels of consent procedures to an individual’s developmental or educational level or reading or learning disability. When obtaining guardian permission and participant assent for research involving populations that do not speak English or for whom English is a second language, psychologists should be alert to the possibility that prospective participants and their legal guardians may have different language preferences and proficiencies (Council of National Psychological Associations for the Advancement of Ethnic Minority Interests, 2000; Fisher et al., 2002). Recently immigrated individuals or those from disadvantaged communities may lack familiarity with assessment, treatment, or research procedures, as well as with terminology typically used in informed consent documents. These individuals also may be unfamiliar with or distrust statements associated with voluntary choice and other client–patient or research participant rights described during informed consent. Standard 3.10 requires sensitivity to the cultural dimensions of individuals’ understanding of and anticipated responses to consent information and mandates psychologists to tailor informed consent language to such dimensions. This also may require psychologists to include educational components regarding the nature of individual rights in agreeing to psychological services or research participation (Bruzzese & Fisher, 2003). For individuals not proficient in English, written informed consent information must be translated in a manner that considers cultural differences in health care or scientific concepts that present challenges for a word-for-word translation. When using interpreters to conduct informed consent procedures, psychologists must follow the requirements of APA Standard 2.05, Delegation of Work to Others in assuring their competence, training, and supervision.

Consent via Electronic Transmission Standard 3.10(a) requires informed consent be obtained when research is conducted via electronic 341

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transmission, such as the telephone or the Internet. Psychologists need to take special steps to identify the language and reading level of those from whom they obtain consent via electronic media. In addition, psychologists conducting research via e-mail or other electronic communications should take precautions to ensure the individual who gave consent is in fact the individual participating in the research, for example, use of a participant–client–patient password (Fisher, 2012). (More information on this subject can be found in Chapter 18 of this volume.)

Consent for Recording Voices and Images in Research Under Ethics Code Standard 8.03, Informed Consent for Recording Voices and Images in Research, psychologists must obtain informed consent to electronically recorded research participation before beginning data collection. Stored auditory and visual records pose a greater risk of personal identification over time than other data formats, and therefore consent procedures must allow persons to evaluate the personal consequences of such risks before research participation. Restricting data access to the research team best protects personal identification. If recordings also will be used for training purposes or presentation at professional meetings, consent must be obtained specifically for these purposes unless image scrambling, voice distortion, or other identitymasking techniques can ensure adequate disguise.

Describing the Nature of Participation Prospective participants, and when appropriate their legal guardians, must be given information and the opportunity to ask questions about the purpose, duration, and procedures involved in participation that is sufficient to make an informed decision.

Qualitative Data Collection The open-ended nature of ethnographic, phenomenological, and participant observation studies can make it difficult to anticipate the exact nature of information that may be gained through participant–investigator interactions. The focus on discovering emergent themes in qualitative research means that investigators do not always know beforehand privacy and confidentiality issues that may emerge 342

during the course of research (Fisher, 2004a). Investigators should alert the prospective participant to this possibility during informed consent, monitor verbal or behavioral information during the course of the study, and remind the participant about confidentiality protections and limitations when unexpected topics emerge. If a new direction of inquiry emerges that might be in conflict with participants’ confidentiality expectations, this should be identified and the participant given the opportunity to reconsent. In street studies involving drug use or other illegal behaviors, an agreement can be reached during informed consent about which activities will and will not be asked or witnessed (Fisher, 2012; Singer et al., 2000).

Explanation About Control Groups and Methods of Assignment to Treatment Conditions The principles of good scientific design often require investigators conducting intervention research to (a) assign some participants to control group conditions as a point of comparison for the experimental treatment (between-group designs) or (b) vary the treatment and control conditions for individual participants (within-group designs). Control conditions may consist of participants receiving different levels of the investigational intervention, a treatment of documented effectiveness, currently available services (treatment-as-usual), a placebo, or no treatment. Provisions No. 2 and No. 3 of Ethic Code Standard 8.02b, Informed Consent to Research, require that informed consent adequately describes the nature, potential risks, and probable benefits of control group assignment as well as how assignment to experimental and control group conditions will be made. When appropriate, the nature of random assignment should be explained using terminology that can be understood by individuals unfamiliar with the scientific method. Informed consent for studies using single- or double-blind procedures should describe the extent to which participants and members of the treatment and research teams will know which group the participant has been assigned to and the steps that will be taken to determine if and how the blind will be broken. From a goodness-of-fit perspective, effort should be made to

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fit explanations about control group randomized designs not only to participants’ cognitive and educational characteristics but also to experiential differences, such as health disparities, that may influence their attitudes about the trustworthiness of the investigators (Fisher & Masty, 2008).

Describing Research Risks Informed consent must provide an accurate description of the potential risks of research participation. In psychopharmacological research, such risks often are defined in terms of the range of side effects that might realistically occur determined on the basis of previous research. In intervention research, prospective participants must be informed about potential risks of assignment to each arm of a clinical trial. Because informed consent to randomization must by definition precede actual assignment to conditions, the consent process must include the realistic range of risks that might arise in assignment to either condition. When psychosocial questionnaires or therapies are added to a medical intervention, discussion of risks and benefits should be limited to those that may result from the research, as distinguished from risks and benefits of therapies patients would receive if not participating in the research (DHHS, 2005, 45 C.F.R. § 46.111(a)(2)).

Describing Research Benefits For both therapeutic and nontherapeutic research, investigators need to distinguish those aspects of the research that may provide direct benefits to the participant and those procedures designed to produce potential benefits to scientific knowledge. In research involving children, federal regulations include as a direct benefit monitoring procedures that are likely to contribute to the participant’s well-being as potential benefits (DHHS, 2005, 45 C.F.R. § 46.4.05). Thus, when appropriate, psychologists can include in consent forms a description of direct benefits that may be derived from participation, such as (a) access to new treatments not yet available for general use; (b) benefits of the experimental treatment if it proves effective during or following the conclusion of the study; (c) comprehensive psychological assessment and monitoring; (d) treatment referrals; or (e) upon participant-signed authorization, a summary of the

participant’s response to the treatment conditions forwarded to a qualified mental health professional. When it comes to describing benefits, psychologists need to be aware that the Office for Human Subjects Protections has interpreted federal regulations as prohibiting investigators from describing participant compensation as a benefit when obtaining informed consent (see Standard 8.06, Offering Inducements for Research Participation).

Addressing the Therapeutic Misconception Appelbaum, Roth, and Lidz (1982) coined the term therapeutic misconception to describe participants’ common but incorrect beliefs about participation in randomized clinical trials: (a) that individualized needs will be taken into account in condition assignment, and (b) unreasonable expectations of medical benefit from research participation (see also Appelbaum, Lidz, & Grisso, 2004). These misconceptions may be compounded by therapeutic mistrust in underserved or marginalized populations (Fisher, Oransky, et al., 2008). APA Standard 8.02b, Informed Consent to Research, also requires that psychologists address such potential misconceptions during informed consent (see Fisher, 2012). The first provision, clarifying the experimental nature of the treatment, requires that informed consent procedures address the general misconception that “experimental” treatment means “better” treatment with known direct benefits for participants. The primary goal of intervention research is to provide generalizable information on whether a particular type of intervention is successful. Depending on the stage of research, an untested experimental treatment may place participants at greater risk than a no-treatment or treatmentas-usual condition. Most important, psychologists must take reasonable steps to communicate to prospective participants that the purpose of conducting treatment research is to determine whether or not a treatment works or how it works in comparison with another treatment.

Discussing Confidentiality In behavioral sciences, the greatest risk of research participation is often disclosure of confidential 343

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information obtained during the course of research (National Research Council, 2003). Disclosure of confidential information can result in criminal or civil liability or financial or social damage. To ensure that prospective participants are fully informed, consent procedures must include a clear explanation of the extent and limits of confidentiality, including (a) whether investigators must comply with reporting requirements such as mandated child abuse reporting, elder abuse, or duty-to-warn laws; (b) the investigator’s confidentiality and disclosure policy for responses indicating a participant or another person is in immediate danger or otherwise at a high level of risk; or (c) if the method of data collection may limit the extent of confidentiality protections as may be the case when research is conducted via the Internet. Investigators conducting research in schools or studies involving children or adults with questionable consent capacities should familiarize themselves with evolving federal and state laws governing guardians’ rights of access to health- or school-related records created, used, or disclosed by a researcher (see Fisher, 2012), and they should disclose such information to guardians and children during informed consent. We address additional confidentiality obligations later in this chapter.

The Voluntary Nature of Participation During consent, investigators must directly inform participants they will not be penalized for declining or withdrawing from participation, especially when the prospective participant has reason to believe that dissent may result in adverse consequences as indicated in APA Standards 8.02b and 8.04, Client/ Patient, Student, and Subordinate Research Participants. Institutionalized populations are particularly vulnerable to involuntary participation in research. Prisoners and youth held for brief periods in detention centers, for example, are highly vulnerable because of their restricted autonomy and liberty, often compounded by their low socioeconomic status, poor education, and poor health (Gostin, 2007). Incarcerated persons have few expectations regarding privacy protections and may view research participation as a means of seeking favor with or avoiding punishment from prison or detention 344

guards or officials. Psychological scientists should be aware that federal regulations require additional protections against involuntary participation for prisoners (DHHS, 2005, 45 C.F.R. § 46, Subpart C) and institutionalized children (DHHS, 2005, 45 C.F.R. § 46.409). The requirement that the voluntary nature of participation is not only communicated to potential participants but also ensured within the research design is also relevant to requirements of APA Standard 3.08, Exploitative Relationships.

Compensation for Research Participation Informed consent must accurately describe the nature of compensation (cash, monetary equivalents, services) as well as under what conditions participants will receive none, partial, or full compensation. Selecting noncoercive compensation for research participation helps ensure that participation is voluntary, that research burdens are not borne unequally by economically disadvantaged populations, and that these populations are not deprived (based on inability to afford to participate in the study) of knowledge generated by research that can be applied to enhance their well-being (Principle D, Justice). Psychologists considering compensation for effort, time, and inconvenience of research should take steps to ensure that inducements do not encourage individuals to lie or conceal information that would disqualify them from the research or lure them into procedures they otherwise would choose to avoid. Ethics Code Standard 8.06, Offering Inducements for Research Participation, recognizes that some inducement often is necessary to ensure a sufficiently large and representative sample and that it is possible for investigators to distinguish between “due” and “undue” inducements (Dickert & Grady, 1999; Macklin, 1981). Some institutions adopt a standard compensation rate for all research participation. Others have defined noncoercive financial inducements as the amount of money a normal, healthy volunteer would lose in work and travel time or by fair market value for the work involved. Different economic and cultural circumstances may lead to varying perceptions of a cash inducement as fair or coercive (Fisher, 2003b; Oransky, Fisher,

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Mahadevan, & Singer, in press). At the same time, fairness and justice entitle all persons to equal compensation for equal levels of participation in a particular research project (Ethics Code, Principle D, Justice). Consulting with members of the population who will be recruited for research participation about different types of research compensation can help investigators and their IRBs determine the extent to which cash or nonmonetary compensation is fair or coercive. Providing psychological services as compensation for research participation is ethical when participants are fully aware of (a) the nature and risks of services (e.g., the type of treatment, the type of provider, risks to confidentiality), (b) the personal and financial obligations and time commitment involved in receiving the services, and (c) limitations of the type and in the length of services provided. Psychological scientists might also wish to refer to Ethics Code Standard 6.04, Fees and Financial Arrangements, and Standard 6.05, Barter With Clients/ Patients. Linking involvement in nontherapeutic research with treatment that immediately follows may encourage participants with mental health problems to engage or continue in treatment. However, psychologists should take special steps to ensure that offering such services does not compromise the voluntary nature of research participation of individuals who do not have access to adequate health care and social services (Fisher, 2004a, 2012). The conditions under which individuals will qualify for full compensation for participation or continuation of experimental interventions if they withdraw from the study must also be fully described (see Standard 8.06, Offering Inducements for Research Participation). In specifying compensation, psychologists must include a description of all reasonably anticipated costs. When appropriate, psychologists should consult with university or health care organization administrators regarding the extent to which the institution is responsible for injuries that may result from research participation or whether the investigator’s funding, the health organization, participant, or participant’s health insurer is responsible for coverage of researchrelated medical care. This information must be included in the informed consent.

Tribal and International Research and the Role of Others in the Consent Process When conducting research involving American Indian and Alaskan Native communities or indigenous villages in countries outside the United States, cultural traditions sometimes require investigators to obtain permission from a tribal leader or village council before they can approach individual community members (Mohatt & Thomas, 2006; National Bioethics Advisory Committee, 2001; Noe et al., 2006). In other cultures, an investigator may be required to obtain permission from a woman’s husband, father, or other male relative before she can be approached for research participation. Obtaining tribal leaders’ or a family member’s permission to recruit individuals for research participation should not be confused with or compromise individual consent. Investigators gaining community permission should approach each individual member and implement consent procedures to ensure that agreement to participate is informed, rational, and voluntary. Substitutive consent should not be conducted in communities where the political structure or power imbalances based on gender compromise the voluntary requirement of consent by placing pressure on individuals to participate where APA Ethics Code Standard 3.08, Exploitative Relationships, may apply (Fisher, 2012). In settings in which respecting individual autonomy may place potential participants in physical danger of spousal or other types of abuse, psychologists need to consider the tension between respect for persons and our duty to do no harm. (More information on research involving vulnerable populations can be found in Chapter 17 of this volume.)

Informed Consent to Research Involving Children and Adolescents In both law and ethics, children have been presumed to lack certain requirements of consent capacity because of immature cognitive skills, inadequate experiences in situations analogous to the research context, and the actual and perceived power differential between children and adults, and such limitations have drawn empirical support for children and early adolescents (IOM, 2004). Ethics 345

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Code Standard 3.10(b), Informed Consent, and federal regulation 45 C.F.R. § 46.408b (DHHS, 2005) require guardian permission for research involving children to provide added protections for populations vulnerable to rights violations. Child assent. Out of respect for children as developing persons, federal regulations (DHHS, 2005, 45 C.F.R. § 46.408a) and the Ethics Code Standard 3.10(b) require investigators to obtain the assent of child participants in a language appropriate to their developmental level. Neither federal regulations nor the Ethics Code, however, stipulates a specific age at which assent must be sought. For each research protocol, investigators and their IRBs must make that determination by taking into account the nature of the research and age, maturity, psychological state, and preferences and history of family decision making of the minor involved (Fisher & Masty, 2006; Masty & Fisher, 2008). According to federal guidelines (DHHS, 2005, 45 C.F.R. § 46.408a) for a specific research project, the assent determination can be made for all children to be involved in research under a particular protocol, or for each child, as the IRB deems appropriate. Moreover, if the IRB determines that the capability of some or all of the children is so limited that they cannot reasonably be consulted or that the intervention or procedure involved in the research holds out a prospect of direct benefit that is important to the health or wellbeing of the children and is available only in the context of the research, the assent of the children is not a necessary condition for proceeding with the research. Exceptions to guardian permission. Exceptions to the requirement for guardian permission as outlined in 45 C.F.R. § 46.402a (DHHS, 2005) include “emancipated minors” who have assumed adult responsibilities such as self-support, marriage, or procreation, or “mature minors” who according to state law may be treated as an adult for certain purposes (e.g., treatment for venereal disease, drug abuse, emotional disorders). Compounding such decisions is the fact that state laws often are silent on how mature minor laws, designed to permit adolescent receipt of medical and mental health treatment in the absence of guardian permission, 346

apply to research (IOM, 2004). This is one reason why most IRBs do not frequently assert their right to waive guardian permission. Unfortunately, reluctance to waive parental permission often means that life-threatening social conditions of adolescence are not studied (Fisher & Goodman, 2009). When the research involves no more than minimal risk to participants, guardian permission also may be waived by an IRB if the research will not adversely affect participant rights and welfare, could not practicably be carried out without the waiver, and participants provided with additional pertinent information after participation (DHHS, 2005, 45 C.F.R. § 46.116.d; see also Standard 8.08, Debriefing). Research psychologists need to be aware, however, that under federal regulations passive consent procedures (sending guardians forms asking for a response only if they do not wish their child to participate in the research) are not an ethical substitute for guardian permission. Psychologists who do not obtain the active affirmative permission of guardians violate this standard except when the research meets the conditions for Ethics Code Standard 8.05, Dispensing With Informed Consent for Research, or when an IRB waives the requirement for guardian under federal regulations 45 C.F.R. § 46.116d and § 46.408c (DHHS, 2005). The APA and regulatory restrictions on passive consent reflect ethical principle of respect. It reflects society’s obligation to ensure that children are provided the adult supports necessary to make informed and noncoerced consent decisions and recognizes that consent is an intentional act that cannot be assumed by its absence. Research psychologists conducting longitudinal studies with minors also should consider reconsent procedures appropriate to children’s changing consent maturity. Under 45 C.F.R. § 46.408c (DHHS, 2005), an IRB also may waive guardian permission when there is serious doubt as to whether the parents’ interests adequately reflect the teenager’s interests (e.g., research on child abuse or neglect, genetic testing of the healthy sibling of a child with a mental disorder) or when parental consent cannot reasonably be obtained (e.g., research on runaway youth). Requests to IRBs to waive guardian permission should thus include when relevant (a) state

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laws on emancipated and mature minor status; (b) justification of minimal risk status of research; (c) why guardian consent will not be in the child’s best interest or is unavailable; and (d) how an independent participant advocate will be appointed, verify youths’ understanding of procedures, support their participation preferences, and assess reactions to planned procedures (Fisher, Hoagwood, et al., 1996).

Goodness-of-Fit Ethics for Informed Consent to Pediatric Intervention Research Fisher (2003a, 2003b) has called for an ethics framework for pediatric intervention research that conceptualizes participant respect and protections in terms of the goodness of fit among (a) the child’s developmental capacities and disorder-based vulnerabilities, (b) the parents’ understanding of their child’s health condition and research terminology, (c) the family’s preferred mode of health decision-making for the child, and (d) the unique characteristics of the specific research context. Goodness-of-fit ethics conceptualizes research risks and benefits as a product of both experimental design and child-and-family attributes. Additionally, it shifts judgments regarding ethical procedures away from an exclusive focus on assumed child or parental consent vulnerabilities to an examination of those aspects of the research setting that are creating or exacerbating research vulnerability. The goodness-of-fit framework calls for scientists to construct informed consent procedures guided by (a) the moral principles of respect, care, and justice; (b) a responsiveness to the abilities, values, and concerns of pediatric research participants and their parents; and (c) an awareness of the scientists’ own competencies and obligations (Fisher, 1997, 1999). These considerations in turn obligate investigators to consider how the consent setting can be modified to produce a process that best reflects and protects the participant’s rights, concerns, and welfare (Fisher, 2003a, 2005). Following a colearning process in which they elicited patient and parent attitudes toward the role of parental permission and adolescent assent in pediatric cancer trials, Masty and Fisher (2008) proposed four factors essential to

consider when creating a family-fitted consent process: ■

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the child’s current cognitive assent capacity and emotional readiness to make clinical research participation decisions, parent characteristics that might affect parents’ responsivity to consent information, the child’s autonomy strivings balanced with parents’ duty and responsibility to make decisions in their child’s best interest, and the family’s history of shared decision making.

INFORMED CONSENT FOR RESEARCH INVOLVING ADULTS WITH IMPAIRED CONSENT CAPACITY The ethical value of informed consent rests on the assumption that prospective participants are able to understand the nature and rationale of the study as well as their research rights, including the right to freely volunteer and withdraw participation, to receive and understand information about the study, and to have their responses remain confidential. The process of obtaining informed consent presents unique ethical challenges for research involving adults with schizophrenia, mental retardation, Alzheimer’s disease, and other disorders characterized by fluctuating, declining, or long-term impairments in decisional capacity. Obtaining informed consent from these populations raises a fundamental ethical question: How can psychologists balance their ethical obligation to respect the dignity and autonomy of persons with mental disorders to make their own decisions with the obligation to ensure that ill-informed or incompetent choices do not jeopardize their welfare or leave them open to exploitation (Cea & Fisher, 2003; Fisher, 1999; Fisher, Cea, Davidson, & Fried, 2006)?

Legal Status, Diagnostic Labels, and Consent Capacity The moral claims on science of adults with cognitive impairments should not differ from those who do not have identified mental vulnerabilities. All persons have the right to assume that researchers are obligated to communicate with them honestly, to 347

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respect their autonomy rights and protect their privacy, to design research procedures that minimize harms and maximize benefits, and to treat them fairly (Fisher, 1999, 2003a). Some adults with serious mental disorders have been declared legally incompetent to consent. Removal of a person’s legal status as a consenting adult does not, however, deprive him or her of the moral right to be involved in treatment or research participation decisions. For these adults, federal regulation 45 C.F.R. § 46.111(a)(4) (DHHS, 2005) and APA Ethics Code Standard 3.10(b) require that psychologists obtain the appropriate permission from a legally authorized person and provide an appropriate explanation to the prospective client–patient or research participant, consider such person’s preferences and best interests, and seek the individual’s assent. The implementation of ethically appropriate consent procedures is more complex for the many situations in which individuals diagnosed with neurological or other mental health disorders retain the legal status of a consenting adult, although their capacity for making informed, rational, and voluntary decisions may be compromised. Each person with a serious mental disorder is unique. Sole reliance on a diagnostic label to determine a client’s or patient’s capacity to make treatment or research participation decisions risks depriving persons with mental disorders of equal opportunities for autonomous choice. However, although federal regulations call for investigators to provide additional safeguards for mentally disabled persons and others vulnerable to coercion (DHHS, 2005, 45 C.F.R. § 46.111b), the regulations and the Ethics Code do not provide specific guidance on such safeguards. However, the National Institutes of Health (NIH) has developed an interim list of points to consider (NIH, Office of Extramural Research, 2009).

Fitting Consent Procedures to Enhance Decisional Capacities and Protections Grisso and Appelbaum have developed the most well-known model of consent capacity (Appelbaum & Grisso, 2001; Grisso & Appelbaum, 1998). It consists of four increasingly complex consent components: choice, understanding, appreciation, and 348

reasoning. This model has given rise to several empirically validated instruments (Dunn et al., 2007). Assessing capacity is a necessary, but insufficient, basis for determining consent procedures for individuals with mental disorders. Fisher (2012) has provided the following guidance for research psychologists to draw on the Grisso and Appelbaum (1998) psycholegal model to maximize the ethical fit between participant and the research context. Choice. Evidencing a choice reflects the ability to actively indicate consent or dissent. For example, some adults suffering from catatonia or Parkinson’s dementia may be unable to verbally or nonverbally communicate a choice. Although these individuals may understand some of the consent information presented and may have a participation preference, their inability to communicate agreement or dissent will require stringent safeguards against harmful or exploitative consent procedures. In such settings, creating a goodness of fit between person and consent context often requires respectful inclusion of a consent surrogate who has familiarity with the patient’s preference history. The proxy can help ensure that the consent decision reflects to the extent feasible the patient’s attitudes, hopes, and concerns. Once proxy consent has been obtained, respect for personhood and protection of individual welfare requires psychologists to be alert to the patient’s appropriate expressions of anxiety, fatigue, or distress that indicate an individual’s dissent or desire to withdraw from participation. Understanding. Understanding reflects comprehension of factual information about the nature, risks, and benefits of treatment or research. When understanding is hampered by problems of attention or retention, psychologists can incorporate consent enhancement techniques into their procedures, such as incorporating pictorial representations of research procedures, presenting information in brief segments, or using repetition. Person-consent context fit also requires identifying which information is and is not critical to helping an individual make an informed choice. For example, when seeking consent for a behavioral intervention study addressing aggressive disorders in a residence for adults with developmental disabilities, it may be important for

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prospective participants to understand the specific types of behaviors targeted (e.g., hitting other residents), the reward system that will be used (e.g., points toward going to movies or other special activities), and who will be responsible for monitoring the behavior (e.g., researchers or residential staff). It also is important for them to understand the ethical protections (confidentiality) and their research rights (the voluntary nature of participation), although requiring them to be able to articulate details of these procedures may undermine the principle of respect. For example, in a study on the consent capacity of adults with developmental disabilities, Fisher et al. (2006) found that in response to a hypothetical consent protocol, participants clearly understood the concept of confidentiality, often describing it in terms of keeping their records safely “locked in a drawer,” even though the consent information noted only that all information would be kept private and the investigator would tell no one about what the participant had said. Appreciation. Appreciation refers to the capacity to comprehend the personal consequences of consenting or dissenting to research. For example, an individual suffering from schizophrenia may understand that clinical research is testing treatment effectiveness, but may not appreciate she has a disorder that requires treatment. A sliding-scale approach based on the seriousness of personal consequences of the consent decision can be helpful in evaluating the ethical weight that should be given to the participant’s capacity for appreciation. For example, understanding may be sufficient for consent decisions to standard or experimental interventions that present minimal risk and are supplemental to current treatment programs. On the other hand, appreciation may be essential when experimental interventions may expose the individual to the risk of serious side effects or offer an opportunity to receive needed services otherwise not available. Reasoning. Reasoning reflects the ability to weigh the risks and benefits of consent or dissent. An individual’s right to independently consent to experimental treatment sometimes is judged in terms of his or her ability to not only understand the nature of the experiment, but also to rationally calculate

whether the possibility of deriving benefit from the research out weighs the risks. Holding persons to this standard of cognitive competence often has justified widespread substitute decision making for those with mental impairments, especially when the disabled person refuses participation based on disagreement with the risk-benefit assessment of the IRB, investigators, and caretakers. As beneficent as such an approach may appear, Fisher has argued that such judgments may unintentionally violate the principle of justice (Fisher, 1999, 2002a, 2002b, 2003b). For example, who decides what is or is not a rational criterion for a risk-benefit calculation? Should such a criterion be used to take away the rights of persons to decide whether they wish to decline participation in social behavioral experimentation when the equally nonrational preferences to decline research participation made by adults without diagnosed impairments are not questioned? For example, an adult with schizophrenia with paranoid features may understand the nature of an experimental treatment and appreciate its potential for reducing his anxiety, but the person may reason that the risks outweigh the potential benefits because the psychologist offering the treatment is part of a conspiracy to undermine his freedom. Similarly, an adult with midstage Alzheimer’s disease may understand the minimal risks posed by the experimental procedures in a nontreatment study using the Tower of Hanoi (Welsh & Huizinga, 2001) to test planning ability, but the person may judge as a serious risk the possibility of inflicted insight caused by personal failure on these tasks—and in many cases may not be able to articulate his or her reasoning to investigators. Adults without an identified disorder also may reject participation because they do not trust the intent of investigator or have a heightened fear of failure, but their participation refusal will not be questioned. Defining consent competency in terms of whether participants attribute the same weight to research risks and benefits as their nonimpaired peers in some circumstances does not do justice to significance of emotions, needs, and practical experiences that contribute to human judgments. Consent and empowerment. People with longstanding, declining, or transient disorders related 349

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to decisional capacities may be accustomed to other people making decisions for them and may not understand or have experience applying the concept of autonomy. In institutional contexts, individuals with mental disorders may fear disapproval from doctors or residence supervisors or feel they must be compliant in deference to the authority of the requesting research psychologist. Some may have little experience in exercising their rights, or if they are living in a community residence, may be fearful of discontinuation of other services. Psychologists also can look toward recent research demonstrating the effectiveness of brief interventions to enhance consent capacity in adult patients (Mittal et al., 2007). Modifying the consent setting to reduce the perception of power inequities, providing opportunities to practice decision making, demonstrating that other services will not be compromised, and drawing on the support of trusted family and peers can strengthen the goodness of fit between person and consent setting and ensure that informed consent is obtained within a context of justice and care. To facilitate IRB review of protocols involving participation of adults with questionable consent capacity, psychologists may facilitate the review by providing evidence that their consent procedures are (a) sensitive to differing and fluctuating levels of capacity, (b) tailored to the specific research context, (c) timed to avoid periods of heightened vulnerability, and (d) repeated when studies are longitudinal. IRB applications also should include legal, psychological, and ethical criteria for determining consent capacity and decisions regarding when and from whom surrogate consent will be sought and how the voluntary nature of participant assent will be obtained and protected (see Appelbaum, Grisso, Frank, O’Donnell, & Kupfer, 1999; Carpenter et al., 2000; Fisher, 2002a; also see APA, 2010a, Standard 3.10(b), Informed Consent). DISPENSING WITH INFORMED CONSENT FOR RESEARCH According to both federal regulations (DHHS, 2005, 45 C.F.R. § 46.116(c–d)) and the Ethics Code (Standard 8.05, Dispensing With Informed Consent for Research), an IRB may approve and an investigator 350

may request a consent procedure that does not include, or alters, some or all of the elements of informed consent or waives the requirement to obtain informed consent. Under federal regulations such conditions include (a) government-approved research on public programs and (b) minimal risk research that could not practicably be carried out without the waiver or alteration, but that does not adversely affect the rights and welfare of participants and, whenever appropriate, provides participants additional pertinent information after participation. Ethics Code Standard 8.05 restricts dispensing with informed consent for research to three welldefined conditions—all of which are predicated on the condition that the research will not create distress or harm. Drawing on Fisher (2012), these conditions are described in the following sections.

Research Conducted in Schools Ethical justification for waiving the informed consent requirement for specific types of research conducted in education settings is predicated on the right and responsibility of education institutions to evaluate their own programs, practices, and policies to improve services as long as the research procedures do not create distress or harm. Studies of normal education practices that do not require informed consent include comparisons of different instructional methods and classroom management techniques, or evaluation of education placements. In elementary and secondary school settings, dispensing with informed consent is a waiver of guardian permission for research involving persons who are legally incapable of consent. Irrespective of whether the type of research conducted meets the criteria for waiving parental permission under this standard, psychologists should consider state and federal laws and parental expectations regarding parental involvement in children’s participation in normal educational practices before deciding whether to dispense with parental permission or student assent. Psychologists conducting program evaluation in the schools also should be familiar with the Family Educational Rights and Privacy Act of 1974 and other federal regulations that may require parental access to their child’s school

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records regardless of whether parental permission for the evaluation was required or obtained. Permission to dispense with informed consent for research in education settings does not apply to studies designed to describe or test hypotheses regarding the relationship between student personality traits or mental health disorders and school performance (e.g., gender differences in math anxiety and its relationship to scores on a math achievement test). The assessment of such personal characteristics is not a part of normal educational practice and could constitute an invasion of privacy. In addition, some investigator-initiated school-based programs, such as drug prevention programs, may not be considered a normal educational practice or part of the school curricula and thus would not meet the Standard 8.05 criteria for waiver of parental permission or child–adolescent assent or consent. Investigators conducting such studies must either follow the consent requirements outlined in 45 C.F.R. § 46.116 and § 46.408 (DHHS, 2005) and Ethics Code Standard 3.10, Informed Consent, and Standard 8.02a, Informed Consent to Research, or obtain a waiver of parental permission from their IRB in compliance with these regulations and standards.

Anonymous, Naturalistic, or Archival Research Informed consent is not required for investigations using anonymous questionnaires, naturalistic observations, or archival research when (a) confidentiality is protected; (b) disclosure of responses would not place participants at legal, financial, or social risk; and (c) the research methods would not reasonably be expected to cause distress or harm. The phrase “for which disclosure of responses would not place participants at risk” (APA, 2010a, Ethical Standard 8.05) refers to both the certitude that participants could never be identified and the nature of data collected. Thus, unless anonymity can be assured, psychologists should avoid dispensing with informed consent when personal information collected would create participant distress or involve criminal activity, substance abuse, or other activities that if known would place the participant at risk. When research is conducted through the mail or on the Internet and adequate protections are put in

place to ensure that participants’ responses are anonymous (e.g., postmarks will not reveal participants’ home addresses, web-based responses cannot be linked to identifying information), informed consent information must be provided at the beginning of the survey, in the same detail required by Standard 3.10, Informed Consent, and Standard 8.02, Informed Consent to Research. However, documentation of consent (e.g., name and signature confirming agreement) is not required because (a) completing the survey and mailing it to the investigator or submitting it via the Internet is considered evidence of voluntary consent, and (b) requiring identifying documentation would compromise participant anonymity. Studies of individual responses in chat rooms and on listservs may be considered naturalistic observation if the users have no reasonable expectation of privacy and the investigator is not manipulating the discussion to test or elicit particular responses. Under Standard 8.05, psychologists may dispense with informed consent under these situations if protections are in place to guard against personal identification and harm. Investigators should also consider whether the uniqueness of the population studied (e.g., individuals from small and geographically restricted ethnocultural communities; persons with rare genetic, medical, or psychological disorders) increases the probability that anonymous, naturalistic, or archival procedures may not be sufficient to safeguard identification of participants or their immediate community (Fisher et al., 2002).

Studies of Job or Organization Effectiveness Subpart 1(c) of Ethics Code Standard 8.05 recognizes the right and responsibility of organizations to draw on the research expertise of psychologists to investigate factors related to job or organization effectiveness as long as (a) research participation does not pose a direct risk to an individual’s current employment status, (b) confidentiality is adequately protected, and (c) the research procedures would not be expected to create distress or harm. This standard is meant to apply to dispensing with informed consent to research directly linked to a specific organization’s needs and not to studies 351

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designed to test general hypotheses regarding organizational effectiveness. The phrase “not reasonably be assumed to create distress or harm” highlights the fact that in most circumstances it would be ethically inappropriate to dispense with informed consent for organizational effectiveness studies using measures of psychopathology or biological data because assessment of mental health or physiological responses without consent can violate an individual’s right to privacy of information not directly related to job performance and can be experienced as personally intrusive and distressful (see Fisher, 2012, for detailed examples of the meaning of qualifying terms, such as meaningful, throughout the Ethics Code).

Waiving Consent for Recording Voices and Images in Research Under Ethics Code Standard 8.03, investigators may record the voices and images of persons without their consent if (a) observations occur in a public setting in which one would have no reasonable expectation of privacy, for example, a public park, a hotel lobby, a street corner; (b) procedures do not disturb or manipulate the natural surroundings; and (c) protections are in place to guard against personal identification and harm, especially when the behaviors observed place participants at legal or social risk, for example, vandalism. Investigators conducting deception research that meets the requirements of Standard 8.07, Deception in Research, can receive approval from their IRB to waive the requirement to obtain consent for recording before data collection, but they must seek permission to use recordings for data analysis from participants during debriefing. Recordings must be destroyed if the participant declines permission. MAINTAINING CONFIDENTIALITY Psychologists respect the privacy and dignity of persons by protecting confidential information obtained from those with whom they work (Principle E, Respect for People’s Rights and Dignity). Standard 4.01, Maintaining Confidentiality (APA, 2010a) is broadly written and requires all psychologists to take reasonable precautions to maintain confidentiality. 352

Federal regulation 45 C.F.R. § 46.111(a)(7) (DHHS, 2005) is similarly broad. The nature of precautions required will differ according to the nature of the data to be collected; the age, competency, and legal status of the participant and relevant federal regulations; state and local laws; and institutional and organizational policies. The term reasonable precautions (APA, 2010a, Standard 4.01) recognizes both the responsibility to be familiar with appropriate methods of protecting confidentiality and the possibility that confidentiality may be broken despite an investigator’s best efforts.

Common Strategies for Maintaining Confidentiality Strategies for protecting participant confidentiality include using participant codes on all data collection materials and data entered for analysis, maintaining records linking participant codes to personal identifiers in a secure file and destroying such records once they are no longer needed, limiting access to personally identifiable information, supervising research personnel in routine confidentiality precautions, and separating consent forms from coded materials to avoid participant identification. Research involving small or unique populations. When publishing or otherwise disseminating research findings, it is important to consider special confidentiality protections when unnamed, but small, unique samples can be identified through descriptions of demographic variables (e.g., persons with rare diseases from distinct communities). Similarly, investigators should work to ensure that recruitment and research procedures do not inadvertently reveal confidential information. For example, when studying addictions, mental disorders, sexually transmitted diseases, or other potentially stigmatizing conditions, approaching target populations for recruitment may result in public identification of individuals who have the condition (Fisher, 2004a). In international behavioral science research, the investigator and participant community may differ in their concepts of physical, informational, and decisional privacy (Goldman & Choy, 2001). In some communities with less rigid building structures and cultural values emphasizing community

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openness and family interdependence, participants may question the motives of an investigator who attempts to protect privacy by conducting research interviews in a secluded area and in the absence of family members (Monshi & Zieglmayer, 2004). In cross-cultural research, therefore, it is important to determine how the participant population defines and values privacy, to design confidentiality procedures to reflect these values, and to clarify during informed consent how confidentiality safeguards have been selected to respect community values and fulfill investigators’ ethical responsibilities (Fisher, 2012). Use of the Internet and other electronic media. According to Fisher (2012), Ethics Code requirements for collecting research data over the Internet obligates psychologists to become knowledgeable about or obtain technical assistance in employing appropriate methods for protecting confidential records generated or obtained by the investigator, including encrypted data, password protections, and firewall techniques. When files are stored via a common server or backed up on a university system or hub server, investigators are wise to discuss and develop security measures with appropriate personnel. When scientists electronically transmit confidential information via e-mail, facsimile, or electronic media to other scientists or professionals, they should take reasonable steps to ensure that recipients of the information have an adequate confidentiality policy. (More information on this subject can be found in Chapter 18 of this volume.) Confidentiality risks during recruitment. In field settings such as public parks in which recruitment of participants for research on violent or illegal behaviors often takes place, investigators frequently find that routine procedures for ensuring confidentiality (e.g., participant codes, secure storage and limited access, disposal of unnecessary information, supervision of research personnel, and anonymous data collection) do not provide sufficient protections. For instance, confidentiality risks arise when investigators known by the community to be studying drug use or gang membership approach prospective participants for research recruitment. The recruitment activity can arouse the suspicion of

police or other community members to the nature of the participants’ behaviors. In some cases, the contact may lead to arrest or physical jeopardy if other drug users or gang members believe the participant is revealing information that may lead to their arrest. Similar concerns arise if studies involving domestic violence, child abuse, or HIV risk require prospective participants to go to a testing site that is easily identified by other community members, or when interviews are conducted in the community for ethnographic research (Fisher, 2004a; Fisher & Goodman, 2009). To avoid recruitment procedures that risk violating participant privacy and welfare, before recruitment, psychologists may wish to consult with prospective participants, community members, police, and others to increase confidentiality and privacy protections in these situations.

The Certificate of Confidentiality The Public Health Service Act (1944–2006) permits investigators to apply for a Certificate of Confidentiality issued by the NIH and other DHHS agencies. The certificate protects investigators from being forced or compelled by law enforcement or subpoena to disclose personally identifiable research information that could place participants in legal jeopardy or damage their financial standing, employability, insurability, or reputation. The certificate does not protect investigators from being compelled by law to release confidential information related to suspected child abuse and it does not preclude investigators from voluntarily disclosing confidential information. If investigators who have acquired a certificate intend to make certain voluntary disclosures to protect the research participant or others from harm (see Standard 4.05, Disclosures), the consent form should detail both the certificate protections and the limits of confidentiality (Fisher et al., 2002; Fisher & Goodman, 2009).

Data Storage and Disposal Ethics Code Standard 6.02, Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work, requires that psychologists protect the confidentiality of scientific information in all phases of record creation, maintenance, dissemination, and disposal. The standard 353

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refers to confidential records or data in the form of written and printed materials, automated scoring reports, audio and video recordings, Internet websites or e-mails, company computer networks, storage on hard drives or disks, and facsimiles. Steps that can be taken to protect confidentiality include (a) keeping records in a secure place, (b) limiting access to staff or team members who must use the record to competently perform their duties, (c) deidentifying records using code numbers or other methods, or (d) disposing of tapes and other identifiable records when they are no longer needed and their disposal is consistent with law. Psychologists should be careful not to assume that their research staff or employees of an institution or company with which they work are familiar with confidentiality requirements or appropriate confidentiality procedures. To the extent it is under their control, they must take steps to ensure that confidential records are kept secure from staff members who do not have approved access.

Disclosures Social–behavioral research frequently is designed to elicit sensitive information about personal problems and illegal behaviors to generate critical knowledge about the correlates, sequelae, and personal and social mediators of individual, group, and societal problems. Such information can include studies of health-compromising behaviors, such as alcohol and drug use, high-risk sexual behavior, and suicide, as well as potentially criminal activities associated with violence, child abuse, or purchasing and selling of illegal drugs. Obtaining such information raises unique confidentiality and disclosure concerns. On the one hand, disclosure of such information could place participants or their family members in social, physical, economic, or legal jeopardy. On the other hand, such research often reveals information about serious physical, psychological, or social problems (e.g., suicidality, toxic drug dose administration, sexually transmitted disease) that place the participant in immediate jeopardy or uncover aspects of participants’ behavior that pose a serious threat to known others, such as a planned gang hit, a violence-prone participant obtaining a gun, or identified sexual partners naive 354

about the participant’s highly contagious sexually transmitted diseases.

Federal and Professional Guidelines Federal guidelines are largely silent on specifying situations for which a disclosure policy for confidential research data should be developed. Ethics Code Standard 4.05(b) provides greater specificity, by describing those situations in which it is ethically permissible to disclose identifiable confidential information without the consent of the participant. This standard is permissive rather than mandatory, however, leaving the decision to disclose confidential information under the listed categories to the psychologist’s discretion. Not surprisingly, research psychologists, especially those conducting nonintervention research with high-risk populations, have been cautious about disclosure policies for information about participants uncovered during research in cases in which (a) using assessments designed to evaluate differences between groups may lack diagnostic validity for individual participants or groups; (b) taking action to help participants (e.g., making referrals for treatment) can threaten the internal validity of a research design (especially longitudinal designs); (c) disclosing confidential information may create participant mistrust or jeopardize recruitment; (d) disclosing information runs the risk of creating harmful or stressful consequences for participants or risk disclosures that inappropriately overestimate mental health problems among minority participants (Fisher, 1994, 1999; Fisher & Goodman, 2009; Fisher, Higgins-D’Allesandro, Rau, Kuther, & Belanger, 1996; Scott-Jones, 1994).

Mandated Reporting Ethics Code Standard 4.05 permits disclosures mandated by law. This can include state laws governing mandated reporting of child abuse, harm to others, and court orders for data. Research psychologists who are not licensed practitioners often are confused regarding their status as child abuse and neglect mandated reporters. States have varying definitions of who within the general citizenry are mandated reporters. Some restrict the reporting laws to health and mental health practitioners and school professionals, others specify researchers in the

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reporting law, and others require all citizens within the state to report suspected child abuse. Psychologists conducting research involving populations at risk for revealing information of suspected child abuse should consult their state law to determine whether they are mandated reporters. In addition, if they are conducting research in a school, social service, or health care setting, they should determine the reporting responsibilities of those collaborating on the research and incorporate appropriate disclosure policies into their research procedures and informed consent (Fisher, 2012).

Harm to Others Research psychologists should also remain up-todate on whether duty-to-protect laws apply to research. Investigators who study violent behavior may learn that a research participant is intending to harm a third party. Duty-to-protect laws typically require certain classes of health care professionals to inform a third party of the prospect of being harmed by a client–patient or take some other action designed to prevent harm. Although there has yet to be case law in the area of research, investigators need to give appropriate consideration to whether their relationship to a research participant meets the duty to protect outlined by Tarasoff v. Regents of the University of California (1976), which requires informing a third party of the prospect of being harmed if one has (a) a “special relationship” with the prospective assailant, (b) the ability to predict that violence will occur, and (c) the ability to identify the potential victim. Appelbaum and Rosenbaum (1989), for example, have argued that researchers specializing in violence may be seen as having more expertise than individual health care providers in the ability to predict that an individual will carry through on a violent threat. They also note that the term special relationship is legally ambiguous and may or may not be applied to research psychologists in some experimental contexts. (More information on Tarasoff as it relates to psychological treatment can be found in Volume 1, Chapter 14, this handbook.) In developing confidentiality and disclosure policies for research involving high-risk behaviors, investigators may benefit from preliminary discussions

with members of the prospective participant population to learn their views. For example, Fisher, Oransky, et al. (2009) found that in focus group discussions, many active street drug users were in favor of an ethnographic researcher disclosing information on a participant’s HIV status to the participant’s partner if (a) participants told the investigator they chose to knowingly keep their HIV positive status from their partner; (b) the partner was HIV negative, identified by the participant, and also a participant in the study; and (c) the possibility that confidential information would be disclosed to protect a third party from harm was included in the original informed consent.

Suicidal Intent Under Standard 4.05(b) psychologists are permitted to disclose confidential information to protect individuals from self-harm. It is difficult to determine when it may be ethically appropriate for investigator to take steps to protect a participant from selfharming behaviors. Although clinical interviews and assessments used to determine suicide risk severity are available, they have not been shown to reliably predict the imminence of such a risk on the behavior of a specific individual. In mental health treatment research for depression and other disorders known to be associated with suicidal risk, for which comprehensive psychological assessment batteries are administered, clinical investigators—as part of the data safety monitoring and risk minimization procedures—need to develop empirically informed objective criteria. All members of the research team will use these criteria to determine when a participant’s responses require action and what those actions should be (e.g., immediate intervention, referral to clinician, informing relatives of risk, elimination from the study; Fisher & Goodman, 2009). The ethical choices are similar for investigators conducting nonintervention research with the following caveats: (a) determine whether the measures or items suggesting suicidal ideation are valid indicators of an individual’s mental health status, (b) recognize the limitations of their competence if they are not trained clinicians and recognize the risk of creating a dual relationship with participants if they do have clinically training, (c) identify 355

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appropriate referrals, and (d) include disclosure information in informed consent (Fisher, HigginsD’Allesandro, et al., 1996). Investigators utilizing surveys to better understand suicidality also can enhance identification of experimentally induced risk by empirically examining survey or interview participants’ postexperimental reactions (Gould et al., 2005) or by debriefing participants to address any distress evoked. Drawing on participant perspectives can inform development of appropriate disclosure policies. For example, in a series of studies examining the perspectives of adolescents and parents about the ethics of adolescent risk research, Fisher and her colleagues repeatedly have found that the majority would desire referrals for assistance if suicidal ideation was uncovered, and many would want parents or counselors to be contacted (Fisher, 2002c, 2003b; Fisher, HigginsD’Allesandro, et al., 1996; O’Sullivan & Fisher, 1997).

Steps for Determining Confidentiality and Disclosure Procedures Ethical decisions regarding confidentiality and disclosure procedures are not singular or static. Every research project requires a series of decision points that build to the construction of best ethical practices for the particular population and research context. Fisher and Goodman (2009) provided a multistep decision-making strategy for constructing responsible confidentiality and disclosure policies for high-risk research. Drawing on Fisher’s goodness-of-fit framework, the strategy assumes that the nature and probability of disclosure challenges are a product of both participant risk characteristics and the type of information the research will elicit. It also assumes that researchers have the expertise to anticipate disclosure challenges on the basis of their familiarity with extant literature and in many cases previous research experience with similar populations. To reach the best fitted confidentiality and disclosure policy for a specific research design Fisher and her colleagues (Fisher, 2012; Fisher & Goodman, 2009; Fisher, Higgins-D’Allesandro, et al., 1996) suggested the following: ■

Whenever possible, ethical challenges involving the potential need to disclose confidential

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information specific to the research design and participant population should be anticipated. To avoid overidentification of risks that may require disclosure, determine whether the nature of the data collected is a valid indicator of individual risk and relatedly whether the research team has the competence to assess the risk. Determine whether there are relevant reporting laws that need to be considered and investigate whether there are available institutional or community services that could be called on as referral sources. If indicated by the noted steps, before initiation of the study develop and train the research team in specific criteria for confirming risk and steps to take if these criteria are met. Whenever possible, draw on the perspectives of prospective research participants or community advisory boards in developing fair and effective policies—an essential element of fair and effective disclosure policies. Inform prospective participants about the disclosure policy during informed consent in the detail needed to make an informed decision. Monitor the policy, invite feedback from participants and staff, and modify the process if necessary; inform the IRB of any proposed changes.

RESEARCH REQUIREMENTS IN HIPAA Informed consent and confidentiality policies for psychologists conducting research involving participant health information need to be familiar with requirements of HIPAA (1996). As will be discussed, psychological scientists who create, use, or disseminate data that meet the HIPAA definition of protected health information (PHI) will need to incorporate relevant HIPAA requirements in developing and administering informed consent and confidentiality procedures. This includes psychologists who create, use, or disclose PHI during the conduct of research evaluating health interventions, such as different therapeutic techniques; data produced from nonintervention research, which nonetheless will be included in a participant’s health records; archival research on PHI collected by an institution; or any research is conducted in an organized system

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of health care (HIPAA, 1996). A brief overview of the regulations and relevant terminology for research is provided in the following sections. (More information on the implications of HIPAA for psychological research and practice can be found in Fisher, 2012.)

To What Does HIPAA Apply? HIPAA regulations apply to PHI, which is defined as oral, written, typed, or electronic individually identifiable information related to (a) a person’s past, present, or future physical or mental health; (b) provision of health care to the person; or (c) past, present, or future payment for health care. For health information to come under the definition of PHI, it must be created by an employer or by the following covered entities: a health plan, a health care clearinghouse, or a health care provider who transmits any health information in electronic form in connection with financial or administrative activities related to health care. Psychologists also need to be familiar with state laws relevant to patient–participant privacy because under the regulation, state laws preempt HIPAA when they are more protective from the standpoint of the patient.

What Do Covered Entities Need To Do to Comply With HIPAA? It is important for researchers, who themselves are not covered entities, to understand the obligations of institutions where research may be conducted or from whom patient records will be requested as part of the study. Under HIPAA, covered entities must (a) provide information to patients about their privacy rights and the covered entity’s privacy practices, called a notice of privacy practices; (b) permit patient access to records and upon patient request provide an accounting of disclosures of PHI made to others over the past 6 years; (c) obtain patient authorization for use and disclosures to others in a manner and for purposes specified in the regulations; (d) implement clear privacy procedures for electronic transmission and storage of PHI; (e) designate a privacy officer; (f) implement security procedures that prevent unauthorized access to health records; (g) train and ensure that employees comply with privacy, transaction, and security procedures;

(h) reasonably ensure that business associates, individual contractors, consultants, collection agencies, third-party payers, and researchers with whom PHI is shared comply with privacy and transaction rules; and (i) attempt to correct violations by these other entities if they occur or cease the relationship. (More information on HIPAA and confidentiality issues can be found in Volume 1, Chapter 13, this handbook.)

Which HIPAA Rules Apply Specifically to Researchers? HIPAA defines research as “a systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to generalizable knowledge” (HIPAA, 1996, 45 C.F.R. § 164.501). Treatment is defined as the provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another. (HIPAA, 1996, 45 C.F.R. § 164.501) Psychologists who are health care providers or who employ health care providers to conduct research involving assessments or diagnoses that will be used for treatment decisions involving research participants should consider themselves or their research team covered entities under HIPAA. Investigators who are not health care providers but conduct treatment research or quality improvement research for a health care facility or any other organization that is a covered entity also must ensure that their procedures are HIPAA compliant. Most researchers or members of their team who create, use, or disclose PHI as part of a randomized clinical trial or other forms of health-relevant intervention research will be considered covered entities. Researchers who are not involved in intervention research but who plan to use in their research data coming under the definition of PHI created by a 357

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covered entity must provide to the covered entity written assurance that they will comply with HIPAA standards. HIPAA permits covered entities to transmit PHI to researchers who are conducting nontherapeutic research if (a) a patient signs an authorization to release information that is project specific (not a general authorization for use of PHI for future unspecified research); (b) an IRB or HIPAA-defined privacy board approves in writing a waiver of the requirement for such authorization and the investigator provides the covered entity with written assurances that HIPAA-compliant procedures are in place to protect confidentiality; or (c) the records are deidentified, as specifically defined by HIPAA regulations.

Authorization to Use PHI for Research For a covered entity to create, use, or disclose PHI for research purposes, HIPAA requires the covered entity to receive a signed authorization from the prospective participant or a legal guardian limited to the specific research project (45 164.508(c)). Research is one of the few activities for which HIPAA permits authorization for the use or disclosure of PHI to be combined with informed consent information and other types of written permission for the same research (HIPAA, 1996, 45 C.F.R. § 164.508(b)(3)(i)). Although there is overlap between HIPAA authorization language and traditional informed consent requirements, investigators should be aware that under HIPAA, a valid authorization must contain (a) specific identification of the person(s) who will be involved in the request for, use, and disclosure of PHI; (b) description of each purpose of the requested use or disclosure; (c) an expiration date for the authorization; and (d) a statement regarding the participant’s right to revoke the authorization in writing. Investigators conducting research with children and adolescents also should become familiar with relevant HIPAA regulations (Fisher, 2004b). HIPAA also provides specific exception for research from requirements of practice, and these must be explained in the authorization. First, if the PHI already has been obtained and used on the basis of the original authorization, the investigator may maintain data analyses based on that information if a participant exerts a right to revocation, although no 358

additional information may be used or disclosed following revocation. Second, prospective participants must be informed that research is one of the few conditions in which HIPAA permits treatment to be conditioned on authorization (HIPAA, 1996, 45 C.F.R. § 164.508(b)(4)(i)).

Health Records Research HIPAA is relevant for research psychologists conducting records research on PHI collected by social services agencies, hospitals, or other health or service provider institutions. (The question of when and if social service agency records are or are not to be considered PHI is often agency specific, and psychologists working with these organizations would be wise to explore HIPAA implications at the design stage of research.) With some exceptions, covered entities can allow investigators access to PHI only if the covered entity obtains authorization by the client– patient or a legally authorized representative to release PHI for the specific research purposes and to the specific investigator or investigative team. Whenever a covered entity releases PHI to an investigator, the covered entity is required to disclose only the “minimum necessary” to reasonably achieve the purpose of the disclosure (HIPAA, 1996, 45 C.F.R. § 164.514(3)). This type of protection is consistent with Ethics Code Standard 4.04, Minimizing Intrusions on Privacy.

HIPAA Requirements for Use of PHI for Research Without Patient Authorization HIPAA does specify conditions under which patient authorization is not required. Under HIPAA, PHI may be used for research purposes without client– patient authorization if the covered entity who is being asked to disclose the PHI receives written documentation that waiver of patient authorization has been approved by an IRB in conformance with federal guidelines, and if (a) the use or disclosure of PHI involves no more than minimal risk to the individuals, (b) the alteration or waiver will not adversely affect patient privacy rights and welfare and privacy risks are reasonable in relation to the anticipated benefits of the research to participants or to scientific knowledge, (c) the research could not practicably be conducted without the alteration or

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waiver and without access to the use of PHI, (d) there is an adequate plan to protect the identifiers from improper use and disclosure and to destroy identifiers at the earliest opportunity, and (e) there are adequate written assurances that the PHI will not be reused or disclosed to any other person or entity (Rules for Research are in HIPAA, 1996, 45 C.F.R. § 164.501, § 164.508(f), and § 164.512(i)). Covered entities also may waive the requirement for client–patient authorization for the use and disclosure of their PHI if it is deidentified by the covered entity (HIPAA, 1996, 45 C.F.R. § 164.512(i) and § 164.514), used only for the purpose of preparing a research protocol, or the patient is deceased and information is restricted to a limited data set (as specifically defined by HIPAA, 1996, 45 C.F.R. § 164.513(e)(2)).

Disclosures and HIPAA Ethics Code Standard 4.05(a), Disclosures, requires psychologists to be mindful of laws that prohibit disclosure. HIPAA requires that covered entities obtain written valid authorization from the individual or his or her personal representative before releasing PHI (HIPAA, 1996, 45 C.F.R. § 164.508). The authorization must include a specific description of information to be disclosed, specific identification of the person or class of persons who can make the authorization and to whom information may be disclosed, a description of the purpose and use of the disclosure, an expiration date, and signature (HIPAA, 1996, 45 C.F.R. § 164.508(c)). In addition, when appropriate release and authorizations are obtained, the HIPAA Privacy Rule requires psychologists share only the minimum amount of information necessary for billing agencies and nonhealth provider internal staff to perform their roles (HIPAA, 1996, 45 C.F.R. § 164.502(b)).

Declining Participant Requests for Research-Generated PHI Under Standard 4.05(a), psychologists may decline an appropriately obtained request to release confidential information if the psychologist believes disclosure will cause harm. However, psychologists should be aware that certain federal and statutory laws limit providers’ rights to withhold such information. Under

the HIPAA Privacy Rule, covered entities have an obligation to agree to a patient’s reasonable requests for release of PHI and can deny a request only if it is reasonably likely to endanger the life or physical safety of the individual or another person or is likely to cause equally substantial harm. In addition, psychologists must allow clients–patients the right to have the denial reviewed by a designated licensed health care professional. (More information on how decisions regarding disclosure of information relate to Standard 9.04, Release of Test Data, and Standard 9.11, Maintaining Test Security, can be found in Chapter 12 of this volume.) An individual’s access to PHI created or obtained in the course of treatment research may be suspended for as long as the research is in progress, provided the individual has agreed to the denial of access when consenting to the research and has been promised right of access upon completion of the research (HIPAA, 1996, 45 C.F.R. § 164.524(a)(2)(iii)). DECEPTION IN RESEARCH Deceptive techniques intentionally withhold information or misinform participants about the purpose of the study, the experimental procedures or equipment, or the roles of research team members (Sieber, 1982). Under APA Ethical Principle C, Integrity, deception should be avoided unless it is necessary to maximize benefits and minimize harms. Deception research may produce benefits unavailable through alternative methods by keeping participants naïve about the purpose and procedures of a study, thereby increasing methodological realism and spontaneous response to experimental manipulation. However, these advantages may not be actualized if participants are predisposed to be suspicious of psychology experiments or are actively engaged in hypotheses regarding an experiment’s true purpose (Fisher & Fyrberg, 1994).

The Consent Paradox By its very nature, informed consent for participation in a deception study creates a moral paradox by compromising an individual’s ability to make a fully informed decision about research participation (Fisher, 2005). The ethical imperative for informed 359

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consent to research participation arose following the revelation during the Nuremberg trials of Nazi medical science atrocities. The Nuremberg Code (1946) codified the international community’s distrust in scientists’ motivation to make decisions that would serve the best interests of participants, and informed consent of the participant rather than morally responsible decisions by scientists came to be seen as the primary means of protecting participant autonomy and welfare. Informed consent to a deception study reflects the moral ambiguity continuing to surround respect for participant autonomy inherent in professional ethics codes and federal regulations. During the consent process, investigators conducting deception research intentionally give participants false information about the purpose and nature of the study. Individuals providing an affirmative response to participate are erroneously led to believe they have autonomy to decide about the type of experimental procedures they are willing to be exposed to, when in fact they do not and thus have no decisional control over these experiences or the potential discomfort that may arise at the end of the study when they are debriefed about the deception (Fisher, 2005, 2012). For these reasons, deception research is required to meet more stringent criteria for implementation than nondeceptive studies.

Scientific and Social Justification Federal regulations do not specifically address deception research. IRBs must rely on general criteria for waiving consent requirements (DHHS, 2005, 45 C.F.R. § 46.116(c,d)) and a risk–benefit assessment (DHHS, 2005, 45 C.F.R. § 46.111) to determine whether to approve a protocol using deceptive methods. Ethics Code Standard 8.07, Deception in Research, provides greater specificity. In the first part of the standard, 8.07(a), deception studies are ethically justified only if psychologists demonstrate that (a) prospective benefits to science or society significantly outweigh violating participants’ right to determine whether they want to be involved in the type of experimental procedures for which they are recruited and (b) nondeceptive alternative procedures do not offer sufficient scientific controls to test the hypothesis under investigation. Some alternative methodologies that can be considered include naturalistic observation, field or game 360

simulations, role-playing, or experimental methods. Failure to use scientifically valid nondeceptive alternative methods simply because of inconvenience or financial cost under some circumstances may be a violation of this standard. Even if deceptive techniques have significant scientific, educational, or social value and thus meet the criteria of Standard 8.07(a), Standard 8.07(b) prohibits withholding or misleading prospective participants about procedures causing physical pain or severe emotional distress. The prohibitions in this standard are absolute and do not depend on the duration of physical pain or whether severe emotional harm can be alleviated during debriefing procedures.

Debriefing When deception is used, participants must be informed about a study’s deceptive aspects as soon as possible, preferably at the end of their participation. This procedure often is called dehoaxing. In some instances, participants may find revelations about the deception and true purpose of the study to be educative; in other cases, there may be transient or long-term discomfort or distress arising from perceptions of invasion of privacy or loss of self-esteem and negative reactions to being observed or induced to commit what the participant may perceive as embarrassing or reprehensible acts (Baumrind, 1985; Fisher & Fyrberg, 1994). There may be situations in which explaining the deception can compromise the methodological validity of the research involving future participants, for example, if research is conducted in a small university where students are likely to speak with one another about their experiences. In such circumstances, dehoaxing may be delayed until data collection is completed. Psychologists also must take reasonable steps to alleviate psychological harm resulting from dehoaxing and may withhold information about deceptive procedures to protect the participant from harm. The general responsibility to debrief participants is outlined in Ethics Code Standard 8.08(b) and 8.08(c), Debriefing.

Data Withdrawal Under Standard 8.07(c), psychologists must permit participants to withdraw their data after learning

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about the deception. Although the standard stops short of requiring psychologists to ask participants if they want to withdraw their data, dehoaxing procedures should not preclude participants from making such a request. Giving individuals an opportunity to withdraw data should not be interpreted as implying their deferred consent to the deception—informed consent can only be prospectively obtained (Office for Protection From Research Risks, DHHS, NIH, 1993). (More information on deception research can be found in Chapter 19 of this volume.) CONFLICTS OF INTEREST IN COMMERCIALLY FUNDED RESEARCH Advances in training programs in neuropsychology, psychopharmacology, and pharmacotherapy have been accompanied by increased participation of psychologists in research on psychoactive and central nervous system medications, drugs, and chemicals. Growing involvement in the empirical assessment of psychotropic medications is likely to be paralleled by increased funding for research psychologists from pharmaceutical companies. Psychologists who are unfamiliar with private industry sponsorship of research may be unprepared for the ethical challenges that arise.

What Is Conflict of Interest in Research? Federal regulators and research organizations are consistent in their definitions of conflict of interest in research as instances in which financial considerations may compromise an investigator’s professional judgment and independence in the design, conduct, or publication of research (Association of American Universities, Task Force on Research Accountability, 2001; APA, 2010a, Standard 1.03, Conflicts Between Ethics and Organizational Demands, and Standard 3.06, Conflict of Interest; NIH, Office of Extramural Research, 2002). Although conflict-of-interest dilemmas have been spotlighted in the media and scholarly journals, it is not widely addressed in psychology graduate training programs (Fisher, Fried, & Feldman, 2009) and university-affiliated research psychologists soon may find themselves in the type of conflict between ethics and the demands of private sponsors previously

encountered by medical researchers. Conflicts between ethical obligations under an Ethics Code and private sponsor organizations may arise when psychologists’ research results are inconsistent with the commercial interests of the company funding their study. For example, when unanticipated patient risks emerge during clinical trials, sponsors may attempt to prevent psychologists from fulfilling their obligation to inform their IRB of the adverse events, in violation of federal regulations (NIH, 1998) and Ethics Code Standard 8.01, IRB Approval. When unanticipated risks to participants emerge during a clinical trial, under Ethics Code Standard 3.04, Avoiding Harm, and federal regulations requiring data safety monitoring plans and actions (DHHS, 2005, 45 C.F.R. § 46.111), psychologists are obligated to take appropriate steps to minimize such risks. Such steps may involve actions to which the sponsor company objects, including terminating or modifying the study or from informing participants about new concerns that may influence their willingness to continue in the research. Sponsors also may attempt to prevent publication of data that jeopardizes the marketability of their product (Thompson, Baird, & Downie, 2001) or exert pressure on the psychologists to falsify results in direct violation of Ethics Code Standard 8.10, Reporting Research Results, and federal prohibitions against fabrication and falsification of data (Public Health Service [PHS], 2000a).

Regulation The NIH Office of Extramural Research requires every institution receiving research PHS grants to have written guidelines for the avoidance and institutional review of conflict of interest. These guidelines must reflect state and local laws and cover financial interests, gifts, gratuities and favors, nepotism, political participation, and bribery. In addition, employees accepting grants or contracts are expected to be knowledgeable of the granting and contracting organization’s conflict of interest policy and to abide by it (PHS, 2000b).

Organizational Requirements When faced with conflicts between ethics and organization demands, Ethics Code Standard 1.03 361

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requires that psychologists explain to the sponsor their ethical obligations under the Ethics Code, including their commitment to participant protection and the responsible conduct of research. In doing so, they must develop a plan and take actions to resolve the conflict in a manner that permits adherence to the Ethics Code. Psychologists and their universities also should be alert to research contracts that include nondisclosure or confidentiality agreements that create additional barriers to resolution of such conflicts (Fisher, 2012).

The APA Task Force on External Funding As summarized by Pachter, Fox, Zimbardo, and Antonuccio (2007), the APA Task Force on External Funding generated a detailed history of conflicts of interest in related fields along with specific recommendations for psychology, including the following: ■

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When research is industry sponsored, psychologists should ensure that they have input into study design, independent access to raw data, and a role in manuscript submission. Full public disclosure regarding financial conflicts of interest should be included in all public statements.

APA Publication Manual Policies APA also has specific conflict of interest policies for publication of research. The APA Editor’s Handbook: Operating Procedures and Policies for APA Publications (APA, 2006, Policy 1.03) requires that journal reviewers and editors avoid either real or apparent conflicts of interest by declining to review submitted manuscripts from recent collaborators or students, members of their institutions, or work from which they might obtain financial gain. When such potential conflicts of interest arise or when editors or associate editors submit their own work to the journal they edit, the Editor’s Handbook recommends that the editor (a) request a well-qualified individual to serve as ad hoc action editor, (b) set up a process that ensures the action editor’s independence, and (c) identify the action editor in the publication of the article. APA also requires all authors to submit a Full Disclosure of Interests Form that certifies whether the psychologist or his or her immediate 362

family members have significant financial or product interests related to information provided in the manuscript or other sources of negative or positive bias (APA, 2010b).

Documentation and Reporting of Research Results Psychologists conducting research must create and maintain records in a manner that allows for replication of the research design by the psychologist or others. This includes an adequate description of recruitment procedures, documentation of informed consent, relevant demographic characteristics of participants, data collection procedures, materials or equipment, and data analysis strategies. Raw data should be stored in a form accessible to analysis or reanalysis by the psychologist or other competent professionals who seek to verify substantive claims (see Ethics Code Standard 8.14, Sharing Research Data for Verification). The number of years of retention of raw data for investigators will vary with state law, federal regulations, and institutional policies. Federal regulations (Office of Management and Budget, 1999) and PHS Grants Policy (NIH, 2001) require that data generated through federal support be maintained by institutions for at least a period of 3 years following the completion of the project and the filing of the final progress and financial reports. The number of years may be longer if a patent is involved. Specific recordkeeping requirements for IRBs include maintenance of copies of the scientific proposal, the informed consent document, summaries of the project, financial reports, and reports of injuries or other serious adverse events. Authors of articles published in APA journals must have their raw data available for at least 5 years after the date of publication (APA, 2010b).

Research Costs Under Ethics Code Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, principal investigators on federally funded grants must create and maintain accurate records of costs associated with the research, including participant compensation, research assistant salaries, investigators’ percent effort working on the grant, equipment, travel, and other supplies necessary to

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conduct the research. For federally funded projects, IRBs are subject to federal grants compliance and oversight. For each grant, the IRB must account for cost allocations and cost transfers, time and effort reporting, allowable grant charges, and unobligated balances.

Honest Reporting Research Results Ethics Code Principle C, Integrity, underscores the centrality of accuracy and truthfulness in the conduct of science. Fraud in research is one of the most serious forms of scientific misconduct because it disrupts the scientific process, dilutes community confidence in the integrity of science, and can lead to misinformed interventions and policies. Psychologists do not falsify, make up, alter, or distort the responses of human participants or animal subjects or the results of data analysis. This standard is not limited to published reports and applies to the fabrication of data in journal entries or intentional manipulation of the data collection process that would lead to a false report. Psychological scientists also should refer to Ethics Code Standard 5.01, Avoidance of False or Deceptive Statements, for additional prohibitions against publishing or presenting research findings psychologists know are false (Fisher, 2012). The research design, measurement tools, and analytic strategies selected by an investigator may lead to erroneous conclusions based on honest differences in interpretation, chance responding, or extraneous influences that are revealed only when new techniques are used to examine the hypothesis tested. Erroneous conclusions about natural phenomena based on methodologically sound research designs are a natural part of the scientific process and are not unethical. A cornerstone of scientific progress is the process of self-correction in which the validity of results obtained in a single experiment can be confirmed or refuted following replication by others within the scientific community. Accurate reporting of research is essential to this process because it enables others to critique, replicate, dispute, and expand on the methods and interpretations reported (Fisher, 2012). The purpose of Ethics Code Standard 8.10, Reporting Research Results, is to safeguard the

self-correction process by requiring that psychologists take steps to correct errors in published reports that compromise the readers’ ability to replicate the research design or interpret the results because the methodology, data, or statistical analysis was described incorrectly. Informing the journal editor or publisher about the error and requesting a published correction can comply with this standard. The use of the phrase “reasonable steps” recognizes that investigators have limited control over editors or publishers who refuse to publish corrections (Fisher, 2012). (More information on issues regarding scholarship and publication can be found in Chapter 15 of this volume.) MULTICULTURAL ETHICAL COMPETENCE Ethical decision making in diverse cultural venues must be sensitive to cultural attitudes toward individual autonomy and communal responsibility; historical and contemporary discrimination within society and psychology as a discipline; sociopolitical factors influencing definitions of race and ethnicity; and variations in immigration history, acculturation, cultural or ethnic identity, language, and mixed race or ethnic heritage (Lyon & Cotler, 2007; Ponterotto, Casas, Suzuki, & Alexander, 2001; Sue & Sue, 2003; Trimble & Fisher, 2006). Multicultural responsibility requires “a fusion of personal and professional commitments to consider culture during ethical encounters” (Ridley, Liddle, Hill, & Li, 2001, p. 176). This section describes how Fisher (2012) has applied the ethical decision-making and goodness-of-fit framework to identify key questions research psychologists may consider as a means to acquire the attitudes and knowledge essential to the responsible conduct of multicultural research.

Multicultural Ethical Commitment Multicultural ethical commitment requires a strong desire to understand how culture is relevant to the identification and resolution of ethical problems as they emerge in research involving diverse populations. It demands a moral disposition and emotional responsiveness that moves psychologists to explore cultural differences and creatively apply the Ethics Code to each cultural context. Cultivation of these 363

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competencies thus includes motivation to conscientiously, prudently, and with caring discernment consider the influence of culture in psychologists’ research. The desire to ensure that cultural sensitivity is integrated into ethical decision making requires a willingness to reflect on how institutional and scientific culture influence the way ethics is conceived in evaluating research risks and benefit (Fisher, 1999). Furthermore, multicultural ethical competence entails recognition of harms that psychological science can exert on culturally diverse groups by invalidating their life experiences, defining their cultural values or differences as deviant, and imposing the values of dominant culture upon them (Fisher, 1999; Fisher et al., 2002; Fowers & Davidov, 2006; Prilleltensky, 1997; Trimble & Fisher, 2006). In psychological research, multicultural ethical commitment involves the motivation to ■

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critically examine moral premises in the discipline that may largely reflect the scientific establishment’s conceptions of research risks and benefits; question “deficit” and “ethnic group comparative” approaches to understanding cultural differences; when appropriate, address the reality and impact of racial and institutional discrimination in the lives of cultural minorities in research measures and designs; avoid conceptually grouping members of ethnic minority groups into panethnic categories (e.g., Hispanic) that may not do justice to withingroup differences (e.g., Puerto Rican, Dominican, Mexican); and develop the flexibility required to respond to rapid cultural diversification and fluid definitions of culture, ethnicity, and race.

Multicultural Ethical Awareness Multicultural ethical commitment is just the first step toward multicultural ethical competence. Good intentions are insufficient if psychologists fail to acquire relevant knowledge about cultural differences and how they may affect the expression of and solutions for ethical problems. To develop culturally valid 364

research designs and participant protection procedures, psychologists can make efforts to become familiar with multidisciplinary sources of research that may include an understanding of the following: ■

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the history of ethical abuses of cultural minorities in the United States and how this may exacerbate disparities in mental health care, employment, criminal justice, and involvement in psychological research; the impact on mental health of historical and contemporary discrimination in employment, education, housing, and other areas; cultural and contextual factors that may facilitate or interfere with psychological well-being or responsiveness to intervention research participation; scientific, social, and political factors influencing the definitions of race, ethnicity, and culture and how these may serve as barriers to conducting research in ways that that protect participants’ rights and welfare; within-group as well as between-group differences that may be obscured by cultural stereotypes in society and within the discipline of psychology; knowledge and skills in constructing and implementing culturally valid and language appropriate informed consent, recruitment, confidentiality, and dissemination policies; and knowledge of relevant ethical standards in the Ethics Code and organizational guidelines relevant to multicultural ethical competence in research and practice.

Goodness-of-Fit Ethics and Multicultural Ethical Decision Making Multicultural ethical commitment and ethical awareness are essential but not sufficient to ensure ethical resolution of multicultural challenges. Given the dynamic nature of individual, institutional, and sociopolitical concepts of race, culture, and ethnicity, ethical decision making across different cultural contexts can be informed but may not be resolved by previous approaches to ethical problems. Many multicultural ethical challenges are unique to the culture, the salience of the culture for a particular

The Responsible Conduct of Psychological Research

individual in a particular context, other withinculture individual differences, the community from which participants are recruited, and the goals of that activity. Multicultural ethical decision making includes (a) creating a goodness of fit between the cultural context and the psychologist’s work setting and goals and (b) engaging in a process of colearning that ensures this fit (Fisher & Ragsdale, 2006). Applying goodness-of-fit ethics to multicultural contexts requires reflection on the following questions: ■

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What are the cultural circumstances that might render individuals more susceptible to the benefits or risks of the intended psychological research? Are cultural factors under- or overestimated in the research plan? Do psychologists and cultural groups with whom they work have different conceptions of research benefits? Are traditional approaches to informed consent and confidentiality protections compatible with the values spirit, collectivity, and harmony characteristic of some ethnocultural populations? Are there aspects of the research setting, recruitment procedures, or informed consent that are “misfitted” to the competencies, values, fears, and hopes of research participants? How can the setting (including the aims and procedures to accomplish these aims) be modified to fit the requirements of culturally sensitive and responsibly conducted psychology? How can investigators research involve participants and their communities in discussions that will illuminate the cultural lens through which they view the research?

Culture is a dynamic construct influenced by an ever-changing sociopolitical landscape. Ethical decision making that includes multicultural commitment and awareness can help research psychologists avoid cultural misimpressions and biases in their work. Openness to learning from and collaborating with stakeholders through the process of colearning can help psychologists implement and monitor the cultural adequacy of ethical decisions and make appropriate adjustments when necessary.

Multicultural ethical competence requires a process of lifelong learning that enables psychologists to make ethical decisions that reflect and respect the values of the discipline of psychology and the values of those participating in the research. CONCLUSION Ethical decisions are not singular or static. They involve a series of steps, each of which will be determined by the consequences of previous steps. Evaluation of alternative ethical solutions should take a narrative approach that sequentially considers the potential risks and benefits of each action. Understanding of relevant laws and regulations as well as the nature of institutions, companies, or organizations in which the research will take place is similarly essential for adequate evaluation of the reactions and restraints imposed by the specific ethical context. Ethical commitment and well-informed ethical planning will reduce but not eliminate ethical challenges that emerge during the course of research. There is no ethical menu from which the right ethical actions simply can be selected. Many ethical challenges are unique in time, place, and persons involved. The very process of generating and evaluating alternative courses of action helps place in vivid relief the moral principles underlying such conflicts and stimulates creative strategies that may resolve or eliminate them.

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National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. (1979). The Belmont report: Ethical principles and guidelines for the protection of human subjects of research. Retrieved from http://ohsr.od.nih.gov/ guidelines/belmont.html

Janofsky, J., & Starfield, B. (1981). Assessment of risk in children on children. The Journal of Pediatrics, 98, 842–846. doi:10.1016/S0022-3476(81)80865-7

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National Institutes of Health, Office of Extramural Research. (2002). Financial conflict of interest: Objectivity in research. Retrieved from http://grants1. nih.gov/grants/policy/coi/nih_review.htm National Institutes of Health, Office of Extramural Research. (2009). Research involving individuals with questionable capacity to consent: Points to consider. Retrieved from http://grants2.nih.gov/grants/policy/ questionablecapacity.htm Noe, T. D., Manson, S. M., Croy, C. D., McGough, H., Henderson, J. A., & Buchwald, D. S. (2006). In their own voices: American Indian decisions to participate in health research. In J. E. Trimble & C. B. Fisher (Eds.), Handbook of ethical research with ethnocultural populations and communities (pp. 93–116). Thousand Oaks, CA: Sage. Nuremberg Code. (1946). JAMA, 132, 1090. Office for Protection From Research Risks, Department of Health and Human Services, National Institutes of Health. (1993). Protecting human research subjects: Institutional review board guidebook. Washington, DC: Government Printing Office. Office of Human Research Protection. (n.d.) Frequently asked questions. Retrieved from http://www.hhs.gov/ ohrp/faq.html Office of Management and Budget. (1999). Uniform administrative requirements for grants and agreements with institutions of higher education, hospitals, and other nonprofit organizations. Retrieved from http:// www.whitehouse.gov/omb/circulars_a110 Oransky, M., Fisher, C. B., Mahadevan, M., & Singer, M. (in press). Barriers and opportunities for recruitment for non-intervention studies on HIV risk: Perspectives of street drug users. Substance Use and Misuse. O’Sullivan, C., & Fisher, C. B. (1997). The effect of confidentiality and reporting procedures on parent-child agreement to participate in adolescent risk research. Applied Developmental Science, 1(4), 187–199. Pachter, W. S., Fox, R. E., Zimbardo, P., & Antonuccio, D. O. (2007). Corporate funding and conflicts of interest: A primer for psychologists. American Psychologist, 62, 1005–1015. doi:10.1037/0003-066X.62.9.1005 Ponterotto, J. G., Casas, J. M., Suzuki, L. A., & Alexander, C. M. (2001). Handbook of multicultural counseling (2nd ed.). Thousand Oaks, CA: Sage. Prilleltensky, I. (1997). Values, assumptions, and practices: Assessing the moral implications of psychological discourse and action. American Psychologist, 52, 517–535. doi:10.1037/0003-066X.52.5.517 Public Health Service, Reporting to the OSI, 42 C.F.R. § 50.104 (2000a). Public Health Service, Responsibility of Applicants for Promoting Objectivity in Research for Which

PHS Funding Is Sought, 42 C.F.R. § 50, Subpart F. (2000b). Public Health Service Act 3.01(d), 42 U.S.C. § 241(d) (1944–2006). Ridley, C. R., Liddle, M. C., Hill, C. K. L., & Li, L. C. (2001). Ethical decision making in multicultural counseling. In J. G. Ponterotto, J. M. Casas, L. A. Suzuki, & C. M. Alexander (Eds.), Handbook of multicultural counseling (2nd ed., pp. 165–188). Thousand Oaks, CA: Sage. Scott-Jones, D. (1994). Ethical issues in reporting and referring in research with low-income minority children. Ethics and Behavior, 4, 97–108. doi:10.1207/ s15327019eb0402_3 Secretary’s Advisory Committee for Human Research Protections. (2005, April 18–19). Meeting presentations and reports. Retrieved from http://www.hhs.gov/ ohrp/sachrp/mtgings/mtg04-05/present.htm Shah, S., Whittle, A., Wilfond, B., Gensler, G., & Wendler, D. (2004). How do institutional review boards apply the federal risk and benefit standards for pediatric research? JAMA, 291, 476–482. doi:10.1001/jama.291.4.476 Sieber, J. E. (1982). Kinds of deception and the wrongs they may involve. IRB: A Review of Human Subjects Research, 4, 1–5. Singer, M., Stopka, T., Siano, C., Springer, K., Barton, G., Khoshnood, D., . . . Heimer, R. (2000). The social geography of AIDS and hepatitis risk: Qualitative approaches for assessing local differences in sterilesyringe access among injection users. American Journal of Public Health, 90, 1049–1056. doi:10.2105/ AJPH.90.7.1049 Stiffman, A. R., Freedenthal, S., Brown, E., Ostmann, E., & Hibbeler, P. (2005). Field research with underserved minorities: The ideal and the real. Journal of Urban Health: Bulletin of the New York Academy of Medicine, 82(2, Suppl. 3), iii56–iii66. doi:10.1093/ jurban/jti064 Sue, D. W., & Sue, D. (2003). Counseling the culturally diverse. New York, NY: Wiley. Tarasoff v. Regents of the University of California, 131 Cal. Rptr. 14, 551 P. 2d 334 (1976). Thompson, J., Baird, P., & Downie, J. (2001). The Olivieri Report: The complete text of the report of the independent inquiry commissioned by the CAUT. Toronto, Ontario, Canada: Lorimer. Trimble, J. E., & Fisher, C. B. (Eds.). (2006). The handbook of ethical research with ethnocultural populations and communities. Thousand Oaks, CA: Sage. Welsh, M. C., & Huizinga, M. (2001). The development and preliminary validation of the Tower of Hanoi–revised. Assessment, 8, 167–176. doi:10.1177/107319110100800205 369

CHAPTER 17

RESEARCH WITH VULNERABLE POPULATIONS Joan E. Sieber

This chapter considers the ethical issues surrounding research with vulnerable populations. The overarching ethical value of beneficence, as found in Principle A of the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010), exhorts psychologists to work for the benefit of individuals and society. For research psychologists, this means generating information that can lead to social benefits. Yet in doing so, psychologists need also consider the ethical principles of justice, as found in Principle D of the Ethics Code, which recognizes that all persons are entitled to “benefit from the contributions of psychology,” and the ethical principle of nonmaleficence, which advises psychologists to “take care to do no harm.” This chapter suggests ways that psychologists can balance these principles in their research activities involving vulnerable persons. The vulnerable, in human research, have been defined as “those persons who are relatively or absolutely incapable of protecting their own interests through negotiations for informed consent” (Levine, 1988, p. 72). This is a useful comprehensive definition, but applying it requires considerable insight into what might make some members of one’s research population relatively or absolutely incapable of protecting their own interests through negotiations for informed consent. In other words, why might they not understand, or fail to heed, the dangers that could lie ahead for them if they agree to participate in the research? Why might their decision process be impaired? And do the investigators, or their institutional review boards (IRBs), even understand

the risks that these vulnerable individuals might face as research participants? We first identify major models, each of which is imperfect, for deciding who is vulnerable. We then examine tools for discovering whether the proposed vulnerabilities exist and procedures for offering needed special protections. WHO IS VULNERABLE? Each of us is vulnerable in one way or another, and the ethical researcher should safeguard human subjects in ways that recognize and ameliorate their vulnerability. But how do we know what the vulnerabilities of other people are? Do we ask them? (How would you phrase such a question?) Do we know from their demographic characteristics what their vulnerabilities are? Do people even know what their own vulnerabilities are? Answering these questions is more difficult than one might, at first, imagine. For instance, one might imagine that the U.S. regulations governing human research (Department of Health and Human Services [DHHS], 2005) would provide a useful answer to these questions, or that other international research documents, or the codes of ethics of relevant scientific societies would provide cogent answers.

Federal Regulations The U.S. Federal Regulations of Human Research (DHHS, 2005, 45 C.F.R. § 46) specify several populations as vulnerable and in need of special protections: children, prisoners, pregnant women,

DOI: 10.1037/13272-017 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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mentally disabled persons, and economically or educationally disadvantaged persons. This seemed reasonable when the federal regulations were promulgated, particularly because the primary focus of those writing the regulations was on biomedical research. Obviously, for example, pregnant women and children should not routinely be included in tests of physical endurance, studies of new antidepressants, or other treatments that might damage the developing child or fetus or compromise the pregnancy. Children should not decide whether to participate in risky research without parental or other guidance. Prisoners should not be exploited. The sweeping generalization that these are vulnerable populations in the context of any human research is false. Is a pregnant woman vulnerable when surveyed about her choice of baby’s names or the brand of diapers she plans to purchase? Should a researcher first invade a female’s privacy by inquiring whether she is pregnant before recruiting her into research? Are teenagers vulnerable when surveyed in a shopping mall about their preferences for music; must their parents’ permission be obtained to protect them? Is it strictly the demographic status of the person, without regard to the research context, that causes the vulnerability? Obviously not. We return to this matter subsequently.

International Regulations The Council for International Organizations of Medical Sciences (CIOMS, 1993) of the World Health Organization has its own list of vulnerable populations. Guideline 13 in the CIOMS International Ethical Guidelines mentions, in addition to those listed previously, students, employees, members of the armed forces, elderly, poor people, the unemployed, patients in emergency rooms, some ethnic and racial minority groups, homeless persons, nomads, refugees, and members of communities unfamiliar with modern medical concepts. A moment’s reflection shows that this list has the same drawbacks as the list provided in the federal regulations.

Codes of Ethics of Relevant Scientific Societies Each discipline that is involved with human research is responsive to the characteristic kinds of 372

risks and vulnerabilities that investigators in the respective disciplines should heed. Nevertheless, these codes are specialized, and their discussion of vulnerability is necessarily incomplete. The research code of ethics of each relevant scientific society identifies certain vulnerabilities and prescribes appropriate precautions. Hence, given the increasingly cross-disciplinary nature of psychological research, psychologists should attend to more than simply their own Ethics Code (APA, 2010). For example, psychologists who plan to do ethnographic research should consult the code of ethics of anthropologists (American Anthropological Association, 1998) and should examine the other relevant documents on this group’s website, such as the statement on ethnography and IRBs. Psychologists use a wide range of methods from other disciplines and work with colleagues from many other fields in interdisciplinary projects. In such cases, it is advisable to discover the codes of ethics of those other disciplines and to understand the kinds of situations that produced those special considerations. There is a comprehensive archive of codes of ethics of virtually every field at the website of the Center for the Study of Ethics in the Professions (2011), at the Illinois Institute of Technology. Although many of these codes are more appropriately nuanced than the U.S. Federal Regulations of Human Research to relate to social and behavioral research within the given discipline, they still are not comprehensive or exactly tailored to the nature of a given population in a given research context. Further consultation with peers who have worked in that specific context may yield additional useful insights.

Leaving the Problem to One’s Ethics Committee An approach that often is used is to allow any vulnerable population to be studied if the relevant Human Subjects Ethics Committee or IRB approves the research. But although IRBs may bring a useful and different perspective than that of the investigator, their wisdom concerning vulnerability, as well as their understanding of appropriate protections of those deemed vulnerable, probably is no greater than that of the investigator. This is particularly likely when the research employs a methodology

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that is not widely used at that institution, does not comport smoothly with the medical model on which the federal regulations are based, or is situated in a community that has an atypical population or culture. For example, community-based participatory research involves the researcher and the community in an equal status relationship, where the community is invited to set the research agenda and dictate the procedures acceptable and desirable from the community’s perspectives. The community has perhaps a better understanding of who is vulnerable and how those vulnerable persons should be protected, but if they are not the IRB’s official community representatives, they may not be accorded any voice in the process of IRB review. In cases such as this, the investigator needs to take special responsibility for understanding the vulnerabilities or strengths of the research population and, in consultation with the IRB before submitting the protocol, ensure that the IRB is apprised of these factors and of any safeguards that the researcher will employ.

The Informed Consent Model Except for unusual situations (see, e.g., Standard 8.05, Dispensing With Informed Consent for Research, and Standard 8.07, Deception in Research), we give the potential research participant the opportunity to accept or decline the invitation to participate in research that has been judged acceptable by the IRB. If both the IRB and the potential participant think it is safe to participate, we judge the individual’s participation to be a morally acceptable undertaking. But we have already seen that this is not fool proof. Is the person or the ethics committee adequately informed to truly understand the risks to a particular, possibly vulnerable individual? Moreover, the reason for judging individuals vulnerable is that they are not in a position to freely or competently decide whether it is in their own best interests to participate in the research. How valid (expert), then, is their decision if they are not in a position to decide? (More information on methods of assessing cognitive capacity for informed consent can be found in Chapter 16 of this volume. More information on special issues concerning informed consent with Internet research can be found in Chapter 18 of this volume.)

Populations Whose Vulnerability Is Identified Through Clinical or Empirical Research or Common Sense Under this model, we can identify many kinds of vulnerable people. Thus, we can add many others to the list, including drug addicts, trauma victims, blind people, deaf people, the desperately ill, illegal immigrants, persons entering early stages of dementia, parents of children who are critically ill and in intensive care, psychology undergraduates, and so on. We also could add all persons who engage in illegal behaviors or behaviors that would entail social consequences if made public. Certainly, all of the kinds of persons listed so far are vulnerable in one way or another. But what vulnerabilities do these lists of “vulnerable populations” signify, and what do these lists tell us about how to provide needed special protections? Some would respond by questioning whether it is ethical to include any members of such subpopulations in research. As we have seen, the list can be extended to include almost everyone on the planet. To exclude vulnerable populations from research, however, would mean ignoring those whom society most needs to understand and serve. Consequently, the desire to protect vulnerable populations from harm could result in excluding them from the benefits of behavioral research (Buchanan, Fisher, & Gable, 2009). THE PROBLEM WITH LISTING VULNERABLE POPULATIONS What do the populations we have listed as vulnerable have in common? They are people who, under some circumstances, might be particularly vulnerable in some way. We could regard presence on one of these lists as a red flag, suggesting that we analyze whether they actually will be vulnerable in our particular research setting. Or, we could go directly to a different model, the Kipnis model, which ignores these lists and considers what might make people vulnerable in a given research context (Kipnis, 2006). Kipnis’s model provides the added advantage of suggesting safeguards to go with the vulnerabilities. Finally, we will point to various methods and procedures that enable researchers to safeguard the vulnerable, once we understand who they are in the context of the proposed research and the nature of 373

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their vulnerabilities. Readers will note a similarity between the Kipnis model and the goodness-of-fit concept. (More information on this topic can be found in Chapter 16 of this volume.) Goodness-offit refers to vulnerabilities in the interaction of participant characteristics with the specifics of how the research is being conducted (Fisher, 2002).

The Kipnis Model The philosopher Kenneth Kipnis (2006), when asked by the National Bioethics Advisory Commission to discuss the meaning of vulnerability in research, proposed a system for identifying vulnerability that incorporates the vulnerability of all the subpopulations discussed thus far yet avoids the “subpopulation problem” of excluding virtually everyone from research and telling us nothing about why they are vulnerable or how to protect them. Furthermore, it stimulates thinking about what might make anyone vulnerable in a particular research context. Kipnis emphasized that his model is a work in progress. In this chapter, we will consider some possible additions to the Kipnis model. Kipnis (2006) began by distinguishing between the usual sense of vulnerability and the special use of that term in the context of human research. He provided some of the usual examples of vulnerability: physical handicaps such as blindness, deafness, or being wheelchair bound. Such people might be at a loss to protect themselves if attacked and might more readily be exploited or harmed by a dishonest person, yet they would be as capable as anyone else to give truly informed consent and participate safely in human research. Those kinds of vulnerabilities usually are not an issue in research. In research, the critical vulnerability is the inability to give voluntary informed consent because that person does not necessarily understand risks peculiar to themselves in that research context, or because the person responds to norms or coercive forces that make consent nonvoluntary. Kipnis has proposed that a useful analysis of vulnerability should serve at least three purposes: 1. It should provide a checklist of circumstances that invalidate the permissibility of research. 2. It should provide a basis for treating a subpopulation as vulnerable and, determining what 374

precautionary measures will eliminate or ameliorate the risk. 3. It should provide a basis for establishing whether a researcher has or might knowingly or negligently have taken unfair advantage of vulnerable research subjects. Kipnis’s (2006) model then asked, “What makes people vulnerable at times?” To answer that question, he set forth six types of vulnerability and ways to remedy them. 1. Cognitive vulnerability. Is the individual able to deliberate about and decide whether to participate in the study? After the researcher takes responsibility for educating the individual about the nature of the research, including its risks and benefits, is the person capable of making a sound decision about whether to participate? Many kinds of factors may result in cognitive vulnerability, including immaturity, dementia, or mental illness, but also a lack of education or unfamiliarity with the particular language. In addition, the individual may be in a state of crisis, trauma, or otherwise not in a “teachable moment” and thus may be unable to absorb the information and use it in a rational fashion. Some remedies for cognitive vulnerability, depending on its nature, include clear language communication and discussion in the informed consent and other educational measures, and the use of surrogates or advocates. Although surrogates and advocates are appropriate in research with children and persons of diminished cognitive ability, the assent of the vulnerable individual should be sought as well, if at all feasible. Thus, in most psychological research, the investigator needs to be sensitive to whether the prospective research participant truly understands the informed consent communication. Professional survey researchers have developed outstanding procedures for checking on whether research participants understand what they are being told. Psychologists should familiarize themselves with these procedures, both for developing informed consent communication and for other aspects of their communication with participants. Perhaps the most useful procedure that has been developed is cognitive interviewing, in which the

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researcher probes the thought processes of a representative sample of volunteer subjects to elucidate processes that otherwise would remain hidden. Cognitive interviewing methodology has been described in Willis (2005, 2006). 2. Vulnerability to authority. Is there a formal power relationship such that the person considers it risky to refuse to participate in the research? This is not a matter of inability to reason about risk to oneself, but quite the opposite: a perceived external threat to personal autonomy. It involves reasoning that the risk to self within that power relationship might be significant if one refuses to participate in the research. Obvious examples are the power relationships within prisons and the military where wardens and officers have legal authority over inmates and enlistees. But more subtle power relationships abound, such as the faculty–student relationship and the parent–child relationship. Furthermore, the globalization of human research involves many Western Hemisphere researchers in developing-country contexts where women either cannot consent for themselves or legally can consent but dare not oppose the will of their husband, other male head of household, or a tribal elder. Wherever there is a hierarchy within which the person is embedded, there is the possibility of vulnerability to authority, be it one’s boss, one’s gang leader, or even one’s senior colleagues. Typically, the remedy for this threat to personal autonomy is to develop a consent procedure that is isolated safely from the authority figure and to ensure the confidentiality of both the consent procedure and the research data. In the case of developing-country settings, however, where women and children are not autonomous, larger political issues are at stake. Indeed, the entire research project may be at risk if the investigator goes against cultural norms or mandates. In that case, the researcher must first ensure that the community approves of the sought research participation and then find a way to create a confidential procedure in which the potential participant decides whether to participate (e.g., Woodsong et al., 2006) or, as the World Health Organization (2005) opined, it sometimes may be necessary for researchers to conform to local custom and request partner agreement.

3. Deferential vulnerability. Is the person too eager to please, respectful, or timid to express unwillingness to participate in the research or otherwise speak for herself or himself? Although this category often is intermingled with “vulnerability to authority,” it is meant to capture situations in which mere courtesy, respect, or unwillingness to offend others may motivate people to display a superficial agreeableness that masks an inner unwillingness to participate in research. Such patterns of deferential behavior vary from one cultural context to another and the researcher needs to be informed about these cultural differences before proceeding. However, the differences are not simply between cultural groups or countries. Some children will not oppose the perceived will of other children or adults, and some people will not do anything that they feel would offend prestigious people such as scientists or physicians. Before considering the remedy for this form of vulnerability, one must first recognize when it arises. We all welcome those who would do our bidding, and hence we must be careful to recognize when such “helpfulness” masks deferential vulnerability. In cases in which it seems possible that deferential vulnerability is an issue, the researcher needs to create a consent process that eliminates any social pressures that the person may perceive, even when none are objectively present. Furthermore, the scientist who regrets creating a procedure designed to possibly reduce the number of willing participants should remember that those who inwardly do not wish to participate may go on to protect their privacy by lying or otherwise failing to give valid responses. Hence, their participation would harm, rather than foster, their research. 4. Medical vulnerability. Was the person selected to participate in the research because she or he has a serious health-related condition for which there is no satisfactory standard treatment, making participation seem like a “last hope”? Although medical vulnerability would seem to fall largely within the realm of biomedical rather than psychological research, many psychologists do research on medical conditions for which there are no satisfactory remedies, such as spinal cord injuries, 375

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Alzheimer’s disease, AIDS, and mental illnesses. For example, many whose lives are shattered by schizophrenia have worked their way through all of the approved drugs and hang their hopes on the next generation of antipsychotic drugs that only now are being tested. Medical vulnerability is a subtle condition that may incorporate all of the vulnerabilities mentioned so far. The person knows he has volunteered or been selected because of his medical condition. But how autonomous is his decision to go with this perceived last hope? Is his fear or the nature of his medical condition causing some degree of cognitive impairment that prevents rational deliberation about whether the possible benefits of participation outweigh the risks? Is he overwhelmed by concern to please his physician, perceiving that the best medical care is contingent on his participating in the research? Is he subject to deferential vulnerability toward family members who urge that he participate, or not participate, in the research? Although many factors may increase one’s medical vulnerability, the root of the problem may be that the person probably is not expert in all facets of his medical condition, of the new experimental treatment for which he has been recruited, of the research design to be employed, or of the risks, benefits and protections involved. Perhaps he is being offered a perceived deal that he is in a poor position to evaluate or negotiate. His uncertainty creates many kinds of vulnerabilities. Even if the informed consent communication were extremely well designed to promote comprehension by a lay person, he still may be unable to make a decision that takes all relevant factors into account, and may allay his fears through the therapeutic misconception that research participation is sure to help him somehow. Thus, even with explicit warnings that the drug trial is not, for example, about testing the efficacy of the drug but only about determining the level at which it is nontoxic or safe, people will cling to the unwarranted hope that they will be cured or helped by participating. Kipnis recommends that subjects understand the outcomes that are possible and be assured of a chance of benefiting from participation if the drug turns out to be safe and effective. 376

5. Allocational vulnerability. Is the person lacking important social goods such as money or privileged access, which would be provided as a consequence of participation in the research, but not otherwise? The foregoing forms of vulnerability have been concerned with impediments to the person’s ability to weigh the risks and benefits of the research per se, but allocational vulnerability is about the coercive power of the perquisites that go along with participation. How much money is the person being offered to participate? Will he be able to use the resources of a fine clinic that otherwise is closed to him? Will he receive housing? Child care? And so on. Allocational vulnerability resembles medical vulnerability in that the impoverished person is not in a good position to bargain and may accept an exploitative offer. The person may not be poor in a financial sense; the psychology student who is failing and can pull his grade up to a C by participating in psychology experiments demonstrates allocational vulnerability as well. There are many official guidelines concerning payment of research participants and prevention of coercive practices, but these are not especially informative or consistent. Table 17.1 shows national and international guidelines on payment and coercion. Because most social or behavioral research does not entail much risk or benefit to participants, the amount of payment is often a determining factor in whether people will decide to participate. Debates have raged about whether or how much people should be paid. For example, some have argued that drug addicts should not be paid in money as they will use it to buy drugs. In the 21st century, however, the prevalent view is that we must have research to inform drug abuse treatments, and no drug addict will participate in research without being paid, hence payment is justified (e.g., Fry, Hall, Ritter, & Jenkinson, 2006). Besides, is it not better that they earn money by participating in research than by stealing? Many have taken the position that the amount of payment, per se, should not be considered coercive if there is no more than minimal risk (e.g., Emanuel, 2005; Grady, 2001). More recently, Singer and Couper (2008) have employed an elegant experimental design to show that larger incentives,

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TABLE 17.1 National and International Guidelines Guideline Nuremberg (Nuremberg Code, 1947) 45 C.F.R. § 46.116 (Department of Health and Human Services [DHHS], 2005) Food and Drug Administration (FDA) Information Sheet (DHHS, 1998)

Institutional Review Board Guidebook (Office for Human Research Protections [OHRP], 1993)

Declaration of Helsinki (World Medical Association, 2000) International Ethical Guidelines for Biomedical Research Involving Human Subjects (CIOMS, 1993)

Recommendation Informed consent must be without coercion in any form. Investigators must seek consent in a way that minimizes possibility of coercion or undue influence. Payment is not uncommon. FDA does not endorse or prohibit but charges the research ethics committee with reviewing the amount, method, and timing of the distribution to ensure that it is not undue or cwoercive. OHRP neither recommends nor prohibits. It notes that free health care for persons with limited resources and major medical problems may be a significant inducement to participate. There is no consensus on whether this is acceptable. Research projects should submit the information regarding incentives for ethical review. CIOMS permits subjects to be paid for inconveniences and time spent, and reimbursed for expenses connected with their research participation. Subjects also may receive free medical services. The payments or medical services so extensive as to induce prospective subjects to consent to participate against their better judgment.

Note. From “A Review of Paying Research Participants: It’s Time to Move Beyond the Ethical Debate,” by E. B. D. Ripley, 2006, Journal of Empirical Research on Human Research Ethics; JERHRE, 1(4), p. 15. Copyright 2006 by the University of California Press. Adapted with permission.

in survey research, do not induce research participants to accept higher risks than they would accept with smaller incentives. High risk, in the Singer and Couper (2008) experiment, was operationalized as a survey in which participants were asked highly personal questions with a high risk of breach of confidentiality. If financial incentives are not considered coercive in relatively low-risk research, how does a researcher decide on the appropriate amount to offer? Ripley (2006) presented a summary of models of payment for research participation, shown in Table 17.2. How might one decide which model to use? The market model may be employed when the investigator has difficult recruitment criteria to meet. The wage model is respectful of the needs of the poor. The reimbursement model meets the specific expenses research participants incur for such costs as travel, child care, and compensation for lost wages, so that participation is not a sacrifice. The fair share model may be particularly appropriate in community-based participatory research in which

an equitable relationship between the investigator and participating members of the community is viewed as very important. 6. Infrastructural vulnerability. Are the research institution, its members, and its allied institutions capable of providing the protections promised to participants? Do they have the resources and integrity required to manage the research responsibly? In social and behavioral research, a typical protection implicitly or explicitly promised is confidentiality. Have data been encrypted? Are the institution’s computers secure from breaches? Are the investigator’s assistants trained to avoid disclosure of identifiable data? Is data sharing done with due concern to prevent deductive disclosure of identities? Have effective Certificates of Confidentiality been obtained to protect data from subpoena? Another resource that may be promised to participants is counseling if the research participant emerges from the research feeling upset. Is adequate counseling available when it is needed? 377

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TABLE 17.2 Models for Payment Model Market

Wage payment

Reimbursement

Fair share

Justification Recruitment of subjects is vital to research and monetary incentives help to recruit the needed subjects. Participation requires little skill but takes time and effort and requires endurance of uncomfortable procedures. Participation in research should not require financial sacrifice by subjects.

Rationale Incentive

Investigators make money on funded protocols and should share a percentage with the participants.

Share benefit from the study

Working wage

Reimburse for expenses

Strategy Payment based on supply and demand, completion bonuses and other incentives for completing the study are used. Payment based on standard wage for unskilled labor; payment is augmented for particularly uncomfortable procedures.

Ethical aspects Potential research participants may seek the highest paying study and refuse to participate for lower amounts. May be more attractive to the low-income participant and may involve financial sacrifice for wealthier.

Payment is determined by subjects’ expenses and can include payment for lost wages or other expenses incurred. Subjects receive a percent of payment made to investigator.

Makes participation financially neutral for subjects. If people’s wages vary, payment may vary for the same study. Based on profit sharing, with lesser payment for partial completion as the investigator would also receive less.

Note. From “A Review of Paying Research Participants: It’s Time to Move Beyond the Ethical Debate,” by E. B. D. Ripley, 2006, Journal of Empirical Research on Human Research Ethics; JERHRE, 1(4), p. 11. Copyright 2006 by the University of California Press. Adapted with permission.

As new research technologies become available, are the researchers who use such technology, their IRB, and research administrators thoughtful and responsible in discovering their risks and identifying ways to prevent those risks from occurring? New electronic technologies such as the Internet, online surveys, and observational research on Facebook® race ahead of our understanding of the risks entailed, placing difficult and serious demands on research establishments to anticipate the vulnerabilities that these technologies may create. In summarizing his model, Kipnis (2006) observed that it is more useful to work from a model that specifies the six problematic situations he has specified and their remedies than to focus on categories of people who are vulnerable. To make this point, he gave an example of a person who could experience all six kinds of vulnerability: An eight-year-old girl in a third-world country could display cognitive limitations, could be under the authority of her parents 378

or village elders, could be exceedingly deferential to any adults who are respected by her parents, could suffer from a serious medical condition for which there are no available treatments, could be lacking in general medical attention that would be provided in the course of the study, and could live in an environment in which resources critical to the success of the study were not reliably available. (Kipnis, 2006)

IDENTIFYING VULNERABILITY IN PSYCHOLOGICAL RESEARCH The Kipnis (2006) model was designed primarily for biomedical research, and to illustrate the limitations of lists of subpopulations that are vulnerable. It is also a useful reminder to psychologists to understand the limitations of the “list of subpopulations” approach to detecting vulnerability. However, other factors create vulnerability that should

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be considered by all researchers; we will examine these as they pertain to psychology. First, recall the definition of vulnerability: The vulnerable, in human research, are “those persons who are relatively or absolutely incapable of protecting their own interests through negotiations for informed consent” (Levine, 1988, p. 72). As we have seen, this vulnerability resides not in persons, but is due to the persons’ being in specific kinds of situations. The situations are such that the person lacks autonomy somehow, for example, due to lack of transparency of the situation, coercive power relationships, or a situation being entirely out of the individual’s control or beyond his knowledge. To understand vulnerability, we need to recognize the kinds of harms that may befall those who are rendered vulnerable in psychological research.

The Basic Risks and Harms Connected With Psychological Research Risk is the possibility that some harm, loss, or damage may occur. In examining the risks and harms to which the vulnerable may be subjected, we refer to those risks or harms that the individual cannot know about or avoid. The example of each kind of risk illustrates being blindsided in a state of vulnerability to that risk. As these particular examples illustrate, the use of concealment and deception in psychological research is particularly problematic precisely because it blindsides subjects, and increasingly investigators are prefacing deception trials with an informed consent in which subjects can consent to have some details withheld until after the trial, or they can decline to participate. The main risks and harms connected with psychological research are the following: ■

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Mere inconvenience, such as frustration and taking up time that the person might more profitably spend otherwise. For example, a deception study of discrimination asks professionals to come to the aid of (bogus) clients of various ethnic backgrounds. One research participant cancels important appointments and drives for many hours to meet a bogus client, only to be met by a researcher who debriefs him. Emotional or psychological harm. For example, an investigator, wishing to see how small businesses

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respond to crisis, sends letters to high-end restaurant owners from a bogus customer claiming that her family just returned from the hospital following food poisoning from a dinner at the restaurant. Recipients are terrified that their business is in jeopardy. Social risk. Word of the alleged food poisoning leaks out as discussion of the letter with restaurant staff spreads to families and acquaintances. The restaurant owner and his business are stigmatized. There is no quick and easy way to remove the false information. Physical harm. An already overstressed restaurant owner has a heart attack or commits suicide upon receiving the letter. Economic risk. A panicked restaurant owner closes down the restaurant while trying to determine what caused the alleged food poisoning. Legal risk. As word spreads, the Health Department seeks to close down the restaurant.

STAGES OF SCIENTIFIC ACTIVITY THAT PRODUCE VULNERABILITY We will now extend or amplify Kipnis’s (2006) list of situations that produce vulnerability by examining how vulnerability can occur at each of the stages of scientific activity. Four stages of scientific activity may produce vulnerability: (a) the theory or research idea, (b) the actual research process, (c) the institutional setting of the research, and (d) the dissemination or uses of the research. Although the federal regulations are concerned only with the second and third stages, the ethical researcher considers the first and fourth stages as well.

The Theory or Research Idea New ideas, such as those of Freud or Darwin, may change the fundamental ways we think about others. When those ideas are incorrect or wrongly generalized, they may do great harm to unsuspecting populations. Some theories have been powerful even though they have never been supported by research. For example, Adult clients of Sigmund Freud told him that they had been sexually abused by 379

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their parent. When Freud announced this to his colleagues, they expressed dismay that he would believe this of Christian parents. In response to this criticism, Freud theorized that such accounts were products of fantasy. It is now recognized that approximately one child in three has experienced sexual abuse and that young children are incapable of describing sexual abuse on the basis of fantasy alone. However, until recently, claims of sexual abuse in childhood were not taken seriously because of Freud’s ideas. Other ideas arise from complex or inconclusive results. The intriguing idea remains and becomes elaborated and used although it is subsequently disproven. For example, although the unreliability of lie detector testing has been amply demonstrated, people persist in believing that lie detector tests are valid (U.S. Congress Office of Technology Assessment, 1983). As new technology makes it possible to explore ever more deeply the physiological substrates of mental activity, much new mischief becomes possible. For example, although functional magnetic resonance imaging (fMRI) brain-imaging studies can show some relationships between electrical activity in persons’ brains and certain kinds of cognitive activity, some scientists and members of the lay public persist in equating that activity with specific thoughts and motives (Racine & Illes, 2007) and some have assumed that fMRI imaging can be used to detect the character of persons. Five ways in which researchers can reduce the risk of false confirmation or dissemination of damaging ideas are as follows: (a) recognize that the null hypothesis may be true and take care not to bias the design to find the result that is sought, (b) design the research to test each theoretical orientation fairly (Mitroff & Killmann, 1979), (c) consult with scientists who support alternative hypotheses, (d) share the documented data with others so that they can test alternative hypotheses with the data (Fienberg, Martin, & Straf, 1985), and (e) do not hype ideas to the media but rather emphasize the indeterminacy of the scientific process. 380

The Research Process Each of the various steps of the research process can involve risk and vulnerability. As examples, we briefly examine vulnerabilities that may arise in seven of the usual steps of the research process: recruitment, induction, consent, data gathering, debriefing, data analysis, and data sharing. Recruitment. The process of recruiting research participants occurs in places and circumstances that may reveal consequential private information. If inner-city men who have tested positive for HIV are recruited for a study of safe sex practices, community members may figure out why they are being recruited and shun them. Because most risks connected with recruitment have to do with invasion of privacy or breach of confidentiality, one solution would be for investigators to brainstorm about ways in which the recruitment process could cause these breaches and discover ways to prevent such breaches. Consent. Many investigators and IRBs assume that truly voluntary informed consent has occurred when a consent form is signed. However, many participants sign consent forms without understanding (or even caring) whether they understand what the research entails. For example, teens in a study of an outpatient drug recovery program may be offended by the questions they are asked in a program evaluation because they do not understand the reasons for those questions; they decide to quit the program. One solution would be to hold a genuine two-way conversation with subjects and take steps to ensure that consent is truly informed. Induction. Recruits enter into a situation that may blindside them, as illustrated in the six risk situations. One solution would be to avoid designing research that fails to let participants know what to expect. If some concealment is needed, employ a “surrogate subject” procedure in which members of the subject population are informed about the study and given an opportunity to brainstorm about possible ways in which the study could blindside participants. Based on that information, design ways to prevent such unpleasant surprises.

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Data gathering. The main risk connected with data gathering is disclosure of identifiable information. This can occur in many ways connected with the inadequate training of those who gather the data. When research assistants are employed from the community of the participants and gather sensitive data from people they know, there is a risk of disclosure through gossip. When data are entered onto a laptop computer, the computer may be lost or stolen. When data are entered onto stationary computers, the data file may be hacked. One solution is that those responsible for gathering and managing data be educated about ways to avoid such breaches. Debriefing. Psychological processes that are worthy topics of psychological research typically involve behaviors that range along a continuum of social desirability. The debriefing stage of the research process involves explaining what the study was about in considerably greater depth than was done in the informed consent, and this process may leave the participant feeling less than adequate, or at least wondering how he or she measured up to a standard of performance. One solution would be to make the debriefing informative without its being construed as derogatory to participants’ performance. Efforts can be made to assure participants of the normalcy of their performance. Data analysis. Data analysis and data presentations can be another source of breach of confidentiality. Data summaries in which some cells contain few cases may enable persons familiar with the setting to deduce the identity of certain anonymous respondents who have reported engaging in undesirable behavior. One solution is to collapse cells containing fewer than five cases, and otherwise combine or omit cells that could permit deductive disclosure. Data sharing. Raw data with identifiers or data that could result in deductive disclosure should not be shared in that form. One solution would be to employ procedures of restricted access or restricted data (see O’Rourke et al., 2006, and Rodgers & Nolte, 2006, for details about use of these procedures).

The Institutional Setting of the Research Although one thinks of psychological research as a matter between researcher and participant, there usually is a “third party”—that is, the organization in which the research occurs, which may be a community; workplace; clinic; prison; school; church; university; recreational setting; or any other setting that has some kind of structure, culture, and interests of its own. Most settings have gatekeepers who impose rules on those who wish to do research therein. In one’s own university, the gatekeepers may include the subject pool coordinator, the IRB, the office of sponsored projects, and so on. In field research, gatekeepers are representatives of the setting the researcher wishes to enter, for example, a school principal, retirement home director, minister, director of a drug-rehabilitation clinic, or a former prostitute who works as an advocate and community outreach person to street prostitutes in her community. Gatekeepers have the power to offer important guidance to researchers. For example, they may help researchers understand and establish rapport with the research population. They also have the power to negotiate the conditions under which the research may be conducted; the researcher may have to modify research plans to suit the priorities of the setting or the gatekeeper. Aspects of the research that otherwise would be harmless may prove harmful because of the nature of the institutional setting in which the research occurs. For example, in community-based research where one of the investigator’s goals is to empower the research participants, the gatekeeper may thwart that goal to retain his or her own power over that community and to further his or her own agenda or beliefs. For example, in the late 1980s, when the gay community became acutely aware of the likelihood that AIDS would spread rapidly within the African American community, they worked with Black ministers to seek to educate the African American community of the danger of AIDS and the importance of safe sex. The ministers, however, were committed to the view that AIDS was strictly a gay disease, that homosexuality was a sin, and that such an educational program had no place in their church or community. The result of the failed effort to educate was 381

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a more intense stigmatization of gay men by the church and misinformation about how HIV infection is spread. A different kind of harm to research participants arises in organizational research in which the outside researcher promises confidentiality and gathers sensitive data that somehow may be obtained and used by the organization to make personnel decisions. The three major ways in which researchers can reduce the risk that gatekeepers will create vulnerability of the research participants and others within that organizational setting are as follows: First, spend ample time getting to know and understand the culture of the organization and the interests of the gatekeepers. Second, develop a memorandum of understanding with the gatekeepers that establishes a clear understanding of such matters as what interventions are acceptable, who owns and has access to the data, and how disagreements or conflicts will be resolved. Third, recognize when conditions are such that the research or intervention cannot be conducted ethically and discontinue the project.

Uses of the Research Methods and Findings Science-backed knowledge is powerful and useful. For example, the development of genetic theory formed on the basis of Gregor Mendel’s discovery of the laws of inheritance of traits, coupled with the development of measures of intelligence and ability, provided useful ways of understanding individual human characteristics. However, these tools also have been used incorrectly, as when early intelligence testing was misapplied to the testing of emigrating Jews, Italians, Russians, and Poles whose English was limited and whose resulting scores were misleadingly low. There was great and erroneous concern about mental retardation, leading to involuntary sterilization to remove the mentally deficient from society and prevent their reproduction. Between 1907 and 1926, 26 states passed sterilization laws (Doris, 1982). It was not until the Great Depression that people began to realize that economic failure and unemployment were not necessarily because of bad genes. New issues continue to arise and inspire inappropriate use of research tools. For example, it has been 382

proposed that all members of our society be tested for AIDS antibodies. Were such a policy enacted, it would involve many false positive instances. Persons who tested positive would become the focus of stigma and prejudice. Powerful social sanctions and the possibility of quarantine laws could be ruinous to those who tested positive. As these examples suggest, the misuse of scientific methods and findings can cause great harm to persons who are powerless to protect themselves. Among the ways scientists can prevent misuse of findings that renders persons vulnerable are the following: (a) Remind oneself and others of the limitations of the measures employed; (b) remind oneself and others of the limitations of generalization of findings; (c) remind oneself and others of the basic characteristics of measurement, such as regression toward the mean; and (d) remember that disclaimers in one’s published research are likely to be ignored by those who find the false belief convenient to their purposes. Hence, the researcher must be vigilant for such misuse of his or her findings and be quick to publish powerful rebuttals to erroneous applications of findings. CONCLUSION There are many ways in which human subjects may be vulnerable to or blindsided by research. That is, they may enter into research without being able to protect themselves from risk, either though misunderstanding of the risk involved or through some form of subtle coercion (possibly due to the cultural context, not necessarily to coercion by the researcher). Although researchers are exhorted by the U.S. Federal Regulations of Human Research (DHHS, 2005) to provide appropriate protections for vulnerable populations, and it is generally assumed that ethics committees are situated to enforce that requirement, this is a more complicated matter than appears on the surface. No regulations provide reasonable guidance as to who is vulnerable, what the nature of those vulnerabilities might be, or how to provide appropriate protections. The nature of the vulnerability often is embedded in the culture and personality of persons in a way that is not simple for a casual observer to

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identify. It behooves the researcher to employ the tools offered by Kipnis (2006) and others, coupled with an understanding of the cultural context of the research and the kinds of risks that may arise, to identify who may be vulnerable in that context and how to afford the needed protections.

References American Anthropological Association. (1998). Code of ethics of the American Anthropological Association. Retrieved from http://www.aaanet.org./committee/ ethics/ethcode.htm American Psychological Association. (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www. apa.org/ethics/code/index.aspx Buchanan, D., Fisher, C. B., & Gable, L. (Eds.). (2009). Research with high-risk populations: Balancing science, ethics, and law. Washington, DC: American Psychological Association. Center for the Study of Ethics in the Professions. (2011). Codes of ethics online. Retrieved from http://ethics.iit. edu/index1.php/Programs/Codes%20of%20Ethics Council for International Organizations of Medical Sciences. (1993). International ethical guidelines for biomedical research involving human subjects. Geneva, Switzerland: Author. Department of Health and Human Services. (1998). Food and Drug Administration information sheet. Retrieved from http://www.fda.gov/scienceresearch/ specialtopics/runningclinicaltrials/guidancesinforma tionsheetsandnotices/ucm113709.htm Department of Health and Human Services. (2005, June). Title 45: Public Welfare, Part 46, Code of Federal Regulations, Protection of Human Subjects. Washington, DC: Government Printing Office. Retrieved from http://www.nihtraining.com/ohsrsite/ guidelines/45C.F.R.46.html Doris, J. (1982). Social science and advocacy: A case study. American Behavioral Scientist, 26, 199–233. Emanuel, E. J. (2005). Undue inducement: Nonsense on stilts? The American Journal of Bioethics, 5(5), 9–13. doi:10.1080/15265160500244959 Fienberg, S., Martin, M., & Straf, M. (1985). Sharing research data. Washington, DC: National Academy Press. Fisher, C. B. (2002). A goodness-of-fit ethic of informed consent. Urban Law Journal, 30, 159–171. Fry, C. L., Hall, W., Ritter, A., & Jenkinson, R. (2006). The ethics of paying drug users who participate in research: A review and practical recommendations. Journal of Empirical Research on Human

Research Ethics; JERHRE, 1(4), 21–36. doi:10.1525/ jer.2006.1.4.21 Grady, C. (2001). Money for research participation: Does it jeopardize informed consent? The American Journal of Bioethics, 1(2), 40–44. doi:10.1162/152651601300169031 Kipnis, K. (2006). Vulnerability in research subjects: A bioethical taxonomy (Research involving human participants V2). Online Ethics Center for Engineering, National Academy of Engineering. Retrieved from http://www.onlineethics.org/Topics/RespResearch/ ResResources/nbacindex/nbachindex/hkipnis.aspx Levine, R. J. (1988). Ethics and regulation of clinical research (2nd ed.). New Haven, CT: Yale University Press. Mitroff, I., & Killmann, R. (1979). Methodological approaches to social science. San Francisco, CA: Jossey-Bass. Nuremberg Code. (1947). Trials of war criminals before the Nuremberg military tribunals under Control Council Law No. 10 (Vol. 2, pp. 181–182). Washington, DC: U.S. Government Printing Office. Retrieved from http://ohsr.od.nih.gov/guidelines/ nuremberg.html Office for Human Research Protections. (1993). IRB guidebook (pp. 3–44). Washington, DC: Author. O’Rourke, J. M., Roehrig, S., Heeringa, S. G., Reed, B. G., Birdsall, W. C., Overcashier, M., & Zidar, K. (2006). Solving problems of disclosure risk while retaining key analytic uses of publicly released microdata. Journal of Empirical Research on Human Research Ethics; JERHRE, 1(3), 63–83. doi:10.1525/ jer.2006.1.3.63 Racine, E., & Illes, J. (2007). Emerging ethical challenges in advanced neuroimaging research: Review, recommendations and research agenda. Journal of Empirical Research on Human Research Ethics; JERHRE, 2(2), 1–10. doi:10.1525/jer.2007.2.2.1 Ripley, E. B. D. (2006). A review of paying research participants: It’s time to move beyond the ethical debate. Journal of Empirical Research on Human Research Ethics; JERHRE, 1(4), 9–20. doi:10.1525/ jer.2006.1.4.9 Rodgers, W., & Nolte, M. (2006). Disclosure review procedures in an academic setting: Example of the Health and Retirement Study. Journal of Empirical Research on Human Research Ethics; JERHRE, 1(3), 85–97. doi:10.1525/jer.2006.1.3.85 Singer, E., & Couper, M. (2008). Do incentives exert undue influence on survey participation? Experimental evidence. Journal of Empirical Research on Human Research Ethics; JERHRE, 3(3), 49–56. doi:10.1525/jer.2008.3.3.49 U.S. Congress Office of Technology Assessment. (1983). Scientific validity of polygraph testing: A research 383

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review and evaluation. Retrieved from http://www.fas. org/sgp/othergov/polygraph/ota/index.html Willis, G. (2005). Cognitive interviewing: A tool for improving questionnaire design. Thousand Oaks, CA: Sage. Willis, G. (2006). Cognitive interviewing as a tool for improving the informed consent process. Journal of Empirical Research on Human Research Ethics; JERHRE, 1(1), 9–24. doi:10.1525/jer.2006.1.1.9 Woodsong, C., MacQueen, K., Namey, E., Sahay, S., Morrar, N., Mlingo, M., & Meheldale, S. (2006). Women’s autonomy and informed consent in microbicides clinical trials. Journal of Empirical

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Research on Human Research Ethics; JERHRE, 1(3), 11–26. doi:10.1525/jer.2006.1.3.11 World Health Organization. (2005). Special programme of research, development and research training in human reproduction. Guidelines on reproductive health research and partners’ agreement. From Preparing a project proposal: Guidelines and forms (3rd ed.). Retrieved from http://www.who.int/ reproductive-health/hrp/guidelines_partners. en.html World Medical Association. (2000, July 20). Declaration of Helsinki: Ethical principles for medical research involving human subjects. Helsinki, Finland: Author. (First adopted in 1964)

CHAPTER 18

ETHICAL ISSUES IN INTERNET RESEARCH Michael Hoerger and Catherine Currell

At the turn of this century, Nosek, Banaji, and Greenwald (2002) captured much attention from the mainstream media and shocked the research community by conducting a controversial Internetmediated study on implicit attitudes, which used a sample of more than a half million web participants during a 2-year period. In fact, a variety of research teams continue to perform remarkable feats through Internet-mediated research studies that otherwise could not be achieved in the traditional laboratory setting, including examining the factor structure of the Big Five personality traits using a sample of more than 100,000 adults, reaching out to hundreds of HIV-positive Hispanic gay men, or sampling thousands of Australians overnight (Fernández et al., 2004; Hoerger, 2009; Srivastava, John, Gosling, & Potter, 2003). Clearly, the rapid pace of technological advancement has afforded psychologists unforeseen opportunities for conducting high-powered studies involving a broad range of samples. Although computer programmers have the technical knowledge to implement elaborate online studies, the scope of their expertise rarely covers research ethics. Similarly, although many psychologists are familiar with the Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) and local institutional review board (IRB) standards, too often their technical skills are lacking (Flanagan, 1999). As Keller and Lee (2003) emphasized in their review, “Rapid technological changes are proceeding at a pace that

challenges the industry’s ability to understand the moral issues, let alone address them” (p. 211). This chapter narrows the gap between Internet technology and research ethics so that psychologists can strive to meet exemplary ethical standards and, at the very least, avoid many of the common ethical pitfalls of Internet-mediated research. Although advanced methodological issues are beyond the scope of this chapter, basic design considerations are explored to the extent that they are aligned with ethical decision making. Similarly, although the importance of Internet research is considered periodically throughout this chapter, relevant reviews would be more useful in highlighting the utility of this particular methodology (e.g., Birnbaum, 2001; Skitka & Sargis, 2006). Related topics involving the interaction between technology and ethics, such as telehealth and distance learning, are considered elsewhere in this handbook. (More information on telehealth can be found in Chapter 10 of this volume. More information on academic cultures can be found in Chapter 12 of this volume.) Upon completing this review, the reader will have a greater understanding of basic terminology and technical issues, the online informed consent process, privacy and confidentiality protections, debriefing procedures, issues involving participant respect, beneficence and justice considerations, and resource allocation strategies necessary for conducting most Internet research studies in an ethical manner. (More information on general ethical issues in research can be found in Chapter 16 of this volume.)

DOI: 10.1037/13272-018 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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TERMINOLOGY AND TECHNICAL ISSUES Having a basic understanding of terminology and major technical issues relevant to web-based research is central to one’s ability to discuss and resolve ethical dilemmas that will occur in the research context. This section begins with an overview on sampling options, types of web-based research, and survey design options. Additionally, examples of web coding and technical data, such as Internet protocol (IP) addresses, are described to facilitate problem resolution between programmers and local IRB panels. Understanding these basic concepts is necessary for considering the ethical issues raised in this chapter in greater detail.

Sampling Options The types of ethical issues encountered in conducting research on the web will vary depending on the particular type of sample participating in the study. Although a variety of gradations exist, it can be useful to consider three types of web samples: those involving college students, the general public, and specialized groups. Sampling college students, as opposed to other populations, raises several ethical issues, with the most salient involving confidentiality, coercion, and departmental resource allocation. Capitalizing on the widespread availability of the Internet, researchers often will cast a wider net, drawing on samples of the general public. In most cases, public samples are less likely to be coerced because of the relative ease of discontinuing participation without repercussion. As opposed to college samples, however, the general public tends to know less about psychological research, which elevates the importance of carefully considering the processes of informed consent, deception, and debriefing. Researchers occasionally will use the invasive reach of the Internet to seek out large samples of specialized groups of participants, such as owners of exotic pets, anabolic steroid users, or people with particular diagnoses (Nosek & Banaji, 2002). In such cases, the research may require greater attention to issues involving vulnerability, such as confidentiality, justice, and respect. Thus, sampling considerations carry vast implications for the types of ethical risks researchers are most likely to encounter. 386

Forms of Internet Research Psychological research conducted on the web can be classified according to two broad types of studies: Internet-mediated research and phenomenological research (Skitka & Sargis, 2006). Phenomenological research simply refers to studies that examine the Internet as a unique phenomenon in its own right. Examples include studies exploring chat room behavior, blogging, or online sexual role playing (Blanchard, 2004; Cooper, Galbreath, & Becker, 2004; Galegher, Sproull, & Kiesler, 1998). In contrast, Internet-mediated research refers to studies that simply are conducted via the web rather than through the use of some alternative instrument, such as traditional paper-and-pencil measures. Internet-mediated studies have evolved from simple e-mail surveys to more complex web-based surveys with conditional logic and participant feedback as well as a variety of experimental studies. As such, Internet-mediated research covers a broad range of domains in psychology, including research on personality, social cognition, and emotion. Because the majority of web-based studies involve Internetmediated research, rather than phenomenological research, this chapter focuses substantially more on the former domain than the latter.

Study Design Methods Although e-mail based research was more common in the past, modern Internet-mediated studies tend to make use of predesigned web survey applications or computer programming using some type of web coding language. The survey applications include various online study design tools, such as SurveyMonkey, Zoomerang, EZSurvey, and numerous competitors. These subscription-based sites include basic survey design templates, which often are capable of including a wide variety of survey question formats, as well as images, sound, and video. The pricing is reasonable, and these applications are about as user-friendly as most office software. These premade survey design applications are rapidly improving in terms of customizability; nonetheless, their central weakness is that they are capable of implementing only a finite set of predefined tasks. Researchers who wish to gather reaction time data, make extensive use of multimedia features,

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improve interactivity, use complex conditional logic, or provide participant feedback likely will need to design online studies from scratch using some form of web coding. Although coding strategies provide for greater complexity and flexibility, the cost of hiring a programmer can be substantial.

required, a perfunctory awareness of these different types of codes lays the foundation for troubleshooting numerous ethical and methodological dilemmas, to be discussed in greater detail later in this chapter.

Personal Identifiable Information Online Study Design Coding It can be helpful for researchers to attain a rudimentary understanding of web coding, both to safeguard against ethical violations as well as to improve methodology. There are a number of different codes available for designing websites, with each coding language allowing for a slightly different set of functions (Fraley, 2003). Most Internet-mediated studies draw on several different codes, acting in concert. When using a premade survey design application (e.g., SurveyMonkey), the application writes all of the coding behind the scenes, although researchers are able to input basic elements of code (e.g., to make text bold, or change colors) on a limited basis. In contrast, when designing a survey from scratch, the researcher or programmer compiles all of the necessary code. Understanding coding basics can enhance one’s own design coding or facilitate communication with a computer programmer, both of which bridge the gap between technology and research ethics (Fraley, 2003). The most common code is Hyper Text Markup Language, ordinarily referred to as HTML, which has been used to code most web pages since the 1980s. HTML is basic and allows one to modify text and background formatting, insert hyperlinks and images, or create tables. For example, the HTML code < font color = blue > Text would alter the color of the word “Text” to be blue. A code called JavaScript is commonly used to provide slightly more complex processes. For example, when a participant attempts to submit a survey, JavaScript can be used to ensure that all questions have been answered before advancing to the next page. Additionally, codes such as Hypertext Preprocessor and Perl are responsible for various tasks that involve processing form data, such as saving it online, summing scale scores, providing survey feedback, and various other operations. Although an extensive understanding of these codes is not

When researchers ask participants for personally identifiable information, they are required to seek informed consent and must uphold strict standards of confidentiality. In standard laboratory-based research, participants often provide their name, student identification number, and personal contact information, all of which are clear forms of personally identifiable information. However, in web-based research, the situation is often much more ambiguous, particularly if the researcher (or computer programmer) is unfamiliar with the implications of collecting particular types of technical information (Kraut et al., 2004). In fact, several authoritative sources on Internet research ethics disagree on whether e-mail addresses, online pseudonyms, referring web addresses, and IP addresses constitute personally identifiable information (Keller & Lee, 2003; Kraut et al., 2004; Nosek & Banaji, 2002). As such, we consider each of these variables separately. Researchers may desire to ask participants for their e-mail addresses or various usernames to facilitate follow-up contact. Employer and university e-mail addresses often consist of obvious identifying information, such as one’s partial or full name and affiliation ([email protected]). Furthermore, even when e-mail addresses are not overtly identifying ([email protected]), they may be readily linked to an array of identifying information through a simple Internet query. The same holds true for various online pseudonyms or usernames (e.g., PrimaBallerina212). Additionally, many websites have the option of automatically collecting data on the participant’s referring web address (the website they used to link to the survey). If the researcher is advertising the survey online, it can be beneficial for the researcher to identify which referring sources are most fruitful. This type of information typically is not uniquely identifying; however, when a participant is referred to the survey by e-mail, a personal blog, or web 387

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journal, the referring web address actually may contain the participant’s name or username (e.g., Jane Doe’s name embedded within her e-mail’s referring web address, http://salt.merit.edu/wm/mail/read. html?sessionid = 60ajmp&mbox = user.Jane. Doe&origop=). Of each of these types of technical data, researchers (and IRB panels) are least likely to be familiar with the genuine implications of collecting IP addresses. An IP address is a numeric value used for identifying particular computers (e.g., 144.32.78.101). In general, computers on the web can be divided into two types: clients and servers. When web users access a particular website (e.g., www.apa.org), their personal computer is the client, and the company hosting the website (e.g., APA) maintains a large system of computers storing the website data, called a server. Both the client and the server have IP addresses, and the server uses the client’s IP address to send the web page data to the correct computer. Although this is analogous to how the post office uses an individual’s street address to send mail to the correct household, IRB panels should be aware that for a variety of reasons, IP addresses are more complex than postal addresses and generally less uniquely identifying. Importantly, IP addresses come in several types, depending on how Internet providers configure their particular network. If static IP addresses are used, an individual computer will have the same IP address each time the computer is used, even if the computer or modem is restarted. Static IP addresses generally are the most identifying and typically are used on networks on which the same set of people will regularly access the web (e.g., college dorms). In situations in which many different people access the web intermittently, network administrators may cut costs by instead assigning various IP addresses dynamically. Dynamic IP addresses typically are reassigned each time a computer or modem is restarted, so they tend to be less identifying. Many commercial Internet providers use various hybrids, called sticky IP addresses. Sticky IP addresses generally remain the same over long periods of time but also cam be reassigned. Thus, the extent to which an IP address is identifying depends on the particular type of IP address being used. Additionally, even 388

when static IP addresses are being used, they may not be strictly identifying because (a) information is needed from the network administrator to link the IP address to the computer’s owner, and (b) knowing a computer’s owner does not necessarily indicate who was using the computer. The music industry, in corroboration with college administrators, has used IP addresses to prosecute students for illegal downloading, and the government occasionally has used IP addresses, with the assistance of Internet providers, to investigate individuals for sex offenses or online defamation. In the absence of a detailed investigation, however, various websites, such as ip-address.com, can pinpoint an IP address only to a particular town (e.g., Pittsburgh), and even this information is occasionally in error. It is recommended that researchers characterize IP addresses as only modestly identifying, whereas e-mail addresses, online pseudonyms, and referring web addresses always should be classified as personally identifying information, given that they occasionally can directly provide this type of information. Although certainly the collection of IP addresses carries various risks, IP addresses typically are only as identifying as other demographic information, particularly when a well-funded, thorough criminal investigation probing the researcher’s data is unlikely. INFORMED CONSENT At the highest standard, informed consent is a dynamic processes whereby the researcher attempts to relate the nature and scope of the research study to the participant in a way that the participant understands the study, has all relevant questions answered, and can make an educated decision about whether to continue with the study (Brody, 2001). In traditional laboratory studies, researchers commonly fall far from this ideal, often seeking a mere participant signature on a consent form that has been skimmed and only minimally understood (Pittenger, 2003; Varnhagen et al., 2005). A limitation of web-based research is that participants are rarely in the presence of the project investigator, so the odds of achieving Brody’s ethical ideal generally are slim. Fortunately, the web does afford a number of advantages in terms of

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interactivity and organizing relevant information, enabling the web-savvy researcher to establish informed consent in a highly ethical process that likely beats current practices of what actually is occurring in many laboratory settings. To optimize the informed consent process, researchers should be aware of the circumstances under which informed consent is required, the logistics of conducting consent processes on the web, strategies for ensuring that consent is truly informed, and methods for handling high-risk studies.

Informed Consent and Anonymity The history of research involving human subjects, both inside and outside of psychology, is plagued by numerous examples of people participating in research without their knowledge or consent, often under situations of substantial risk (Goodwin, 2005, pp. 50–52). To guard against future research abuse, the Ethics Code (APA, 2010, Section 3.08) now requires informed consent for all research involving human subjects, except under rare circumstances in which studies meet all four of the following criteria: (a) participation entails only minimal risk, (b) participation is anonymous, (c) responses are not likely to be damaging, and (d) confidentiality is strictly upheld. Issues involving confidentiality carry a number of implications and are considered in their own right later in this chapter (see the section Privacy and Confidentiality). Similarly, issues involving risk are subsumed under the umbrella section Beneficence and Justice. Here, the issue of anonymity is considered in detail because it carries implications primarily for the decision to forgo the informed consent process. Participation in research is considered anonymous only if the researcher opts to avoid collecting personally identifiable information. As previously detailed in the section Terminology and Technical Issues, a participant’s e-mail address, online pseudonym, and referring web address generally should be considered forms of personally identifiable information. Although IP addresses are argued to have only modest identifying properties, local IRBs may hold varying opinions on this matter. Thus, the collection of some of these types of technical information may require informed consent. Researchers having no use

for this type of information are urged to actively ensure that their surveys do not inadvertently collect such data, as many standard survey design programs collect IP address information and referring web addresses by default. If a computer programmer is contracted, the researcher also should make clear whether this type of information should be collected, as the ethical implications of gathering this type of data during the course of a research study may not occur to a programmer. In many cases, researchers have an important methodological need for this type of technical information, which can be used to track participants. Tracking participants can be useful in several ways. For example, recording IP addresses can help the researcher to detect and remove multiple submissions that may occur if a participant (accidentally or maliciously) submits a survey form more than once (Murray & Fisher, 2002). Tracking usernames or e-mail addresses also can be useful in linking together multiple data files, as in the case of multipart studies. It would seem that this type of situation creates a conflict between ethical and methodological rigor. Fortunately, with a bit of technical innovation, several strategies for tracking users anonymously can help researchers wishing to forgo the consent process or merely can increase data security. If a researcher wishes to track a participant for the purposes of matching multiple phases of data, a simple solution is to have the participant create an anonymous linkage code from several enduring pieces of participant data. For example, a participant might be asked to combine the second letter of their mother’s name (e.g., “a” for Sarah), with the last digit of the year they were born (e.g., “3” for 1973), with the last two digits of their home phone number (e.g., “10” for 987-6543210) to create a relatively unique linkage code of “a310” that is ambiguous enough to avoid being considered personally identifying. If a researcher is using a computer programmer to assist with the survey design (rather than relying on a premade design application), a more elegant strategy can be used to generate a unique identifier. For example, using the programming language Perl, we created a small web application for our departmental research website that uses the time on the 389

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participant’s computer to generate a code number (for example, if the time is 11:44:33 a.m. on October 22, a code number of “3344112210” is produced) that is nonidentifying and unique (as long as two participants do not begin the study at the exact same second). Perl displays the code number for the participant, which the participant then uses throughout later phases of the study. A sample version of the code appears as follows: ($second, $minute, $hour, $dayOfMonth, $month) = localtime(); my $month = $month + 1; my $hour = $hour + 2; my $codenumber = $second.$minute.$hour. $dayOfMonth.$month; Although this type of coding may be beyond the interest or know-how of many psychologists, generating this type of code number would be relatively simple for any programmer with experience in the Perl or PHP programming languages. In single-phase studies, researchers may wish to track participants simply to avoid multiple submissions of the same survey data (which dramatically could artificially inflate effect sizes for correlational results). For example, in a recent study, a single malicious participant apparently submitted the same survey data more than 50 times in a single day (Hoerger, 2009). A novel solution for tracking multiple submissions without collecting IP addresses is to track what shall be termed a partial IP address. Rather than recording an entire IP address (e.g., 347.26.34.191), which potentially could identify a particular computer, it is proposed that researchers consider creating a code number similar to the IP address, but with one or two of the final digits dropped (e.g., 34702603419) to avoid identifying a particular computer. Again, this type of task can be accomplished using a surprisingly small (although bizarrely concocted) string of code in a programming language such as Perl: my $cip = $ENV{”REMOTE_ADDR”}; $cip = tr/.//d; chop($cip); Thus, although e-mail addresses, usernames, and IP addresses have identifying properties, researchers 390

who are willing to delve into some of the technical issues in web design are able to find methods for collecting technical information that serves a similar purpose without compromising anonymity.

Online Consent Forms For most web-based studies, informed consent ultimately will be required, and this typically is achieved using online consent forms, which are similar to paper-and-pencil versions used in laboratory settings. Local IRB requirements vary considerably, but typically, participants are asked to read the consent form online and indicate their consent by typing their name in a form, clicking a link, or marking a checkbox next to a consent statement such as “Checking this box indicates that you are at least 18 years old and voluntarily agree to participate in this study. You have read, as well as understood, the information provided” (Keller & Lee, 2003; Kraut et al., 2004; Varnhagen et al., 2005). A potential concern, regardless of whether consent forms are supplied online or in person, is that participants are known for skimming consent forms and having difficulty comprehending the nature of many research studies (Pittenger, 2003; Varnhagen et al., 2005). In the lab setting, consent can be viewed as a more dynamic process, where the researcher can clarify ambiguous details by answering questions. Because this type of interaction is less feasible on the web, researchers have a greater obligation to implement several safeguards for ensuring informed consent. Potential solutions include quizzing participants over aspects of the consent form, formatting important text in bold or color (often requiring basic HTML code), summarizing an overview of the study using a bullet point list, supplementing text with audiovisual information, and emphasizing various methods for contacting the researcher should questions arise (Kraut et al., 2004; Varnhagen et al., 2005).

Ensuring Informed Participation A central limitation of many Internet-mediated studies is that they are posted online as a stand-alone unit, where participants travel linearly though the study, beginning with the consent form, then response pages, and finally debriefing. To enhance ethical rigor, improve participant enjoyment, and

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increase web traffic, psychologists would benefit from thinking more like web developers. In fact, Nosek and Banaji (2002) have suggested that researchers should consider embedding their studies within a broader research study website, which could include pages with additional information, such as researcher and IRB contact information, links to related websites, lists of relevant publications, IRB approval documentation, updates on study results, and a frequently asked questions (FAQs) section. Voluntary, informed participation in research is possible only to the extent that participants are able to have their questions answered during the entirety of the study. Several researchers emphasize that researcher contact information should be readily accessible throughout the course of the study, not merely on consent forms, underscoring the importance of embedding studies within the context of a broader website (Childress & Asamen, 1998; Michalak & Szabo, 1998). Nonetheless, simply posting contact information falls short of an ethical ideal, as researchers are unlikely to be available at all hours of each day. This is where a FAQs section of a website can be instrumental (Nosek & Banaji, 2002). The researcher can have a lengthy list of responses to a variety of commonly asked questions, increasing the probability that participant concerns will be allayed.

Risk Management Inevitably, conducting consent procedures online, rather than in person, carries a slightly different set of challenges. A common concern among researchers and IRB panels is how to handle moderate- to high-risk web-based studies—that is, those that carry more than minimal risk of harm or are inherently too complex to be understood in an online consent form. These concerns tend to be heightened by the related concern that when consent forms are completed online, children and adolescents may be able to illegitimately access research studies, for which genuine consent from an adult is needed. When methodology cannot be successfully altered to reduce risk of harm, one solution is to divide the study into two components, such that participants first complete consent procedures in person or by phone and then are given access to the study website. This helps ensure that all questions

are answered, risks are clearly explicated, and minors are deterred from participation. Additionally, for the rare web-based study intended to purposefully draw on child or adolescent participants, this two-phase procedure could be used to allow for parental consent and child assent before the child participates in the study online. When an adult-oriented study is not particularly risky, however, researchers still may wish to conduct consent procedures online while simultaneously protecting underage people from participating. The general consensus is to use some form of age verification before participants are allowed to enter the study (Keller & Lee, 2003; Kraut et al., 2004; Mathy, Kerr, & Haydin, 2003; Nosek & Banaji, 2002; Pittenger, 2003; Varnhagen et al., 2005). The complexity of the age verification technique needed likely depends on the relative risks of harm and the probability of an underage person stumbling on the study. For studies using public samples, an important first step would be to advertise the study only on sites of interest primarily to adults (Mathy et al., 2003). Upon accessing the research website, a simple method for deterring underage participants involves asking people to indicate their age or date of birth (Keller & Lee, 2003). Conditional logic features are built into many survey-design applications, such as SurveyMonkey, and are easily accomplished through web programming using JavaScript, Perl, or PHP. Using conditional logic, participants indicating that they are underage can be redirected away from the study. This would not deter relentless, underage participants from lying and sneaking into the study, but as Kraut et al. (2004) reminded us, some degree of risk is present even in the laboratory setting where investigators rarely check identification to ensure that all young college participants are at least 18 years old. Nonetheless, in circumstances in which a study could be highly detrimental, researchers can consider using credit card age verification, though such procedures are expensive and technically sophisticated (Pittenger, 2003). PRIVACY AND CONFIDENTIALITY The integrity of research psychologists rests in part on their ability to hold participant responses in 391

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confidence. Indeed, Section 4.01 of the Ethics Code reiterates that researchers have a fundamental obligation to “take reasonable precautions to protect confidential information” (APA, 2010, p. 7). Because technology is rapidly advancing, psychologists may be vulnerable to either overreacting to improbable, high-risk concerns (e.g., hacking), or underestimating legitimate risks involving data collection, transmission, and storage (Binik, Mah, & Kiesler, 1999; Keller & Lee, 2003). With increased awareness of genuine risks to confidentiality and solutions for overcoming them, psychologists can conduct research online that is at least as safe as standard laboratory settings in upholding confidentiality.

E-mail The advent of user-friendly survey design applications has led to a decline in the use of e-mail-based surveys; however, their use is considered briefly. The central vulnerability of e-mail is that many organizations, universities, and businesses back up e-mail for several days on network computers, which may be vulnerable to third-party interception (Keller & Lee, 2003; Pittenger, 2003). Specifically, many employers have explicit policies that e-mail can be monitored by network administrators. Similarly, under the Freedom of Information Act, under certain circumstances, ordinary citizens may request transcripts of e-mail sent by public employees (Theoharis, 1998). IRBs that permit e-mail-based research generally should consider requiring that consent forms document a waiver of confidentiality. Because e-mail should not be viewed as a confidential form of communication, researchers corresponding with participants by e-mail for any reason also may wish to include a disclaimer regarding confidentiality.

Departmental Access The expense of premade survey design applications (e.g., SurveyMonkey) may lead multiple research teams to consider pooling their resources for a shared survey account. However, the same security restrictions applied to paper-and-pencil forms should apply similarly to electronic records. Increasingly, IRBs are requiring that anyone with access to

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stored data should be noted on the IRB research proposal, indicating that shared departmental survey accounts, while fiscally desirable, are unlikely to meet ethical standards. DECEPTION AND DEBRIEFING The issue of deception in research has long been debated in psychology, with one side focusing on the immediate and pragmatic methodological needs of ongoing research, and the other focusing on participant rights and the long-term integrity of the field (Hertwig & Ortmann, 2008; Pittenger, 2003). When well-contrived and used sparingly, the general consensus within the field is that deception is ethically permissible in psychological research, as long as participants consent to being potentially misled, nondeceptive alternatives are impractical, and the researcher debriefs the participant after the study (APA, 2010; Pittenger, 2003; Sieber, Iannuzzo, & Rodriguez, 1995). The choice to use deception is inherently more complicated in Internet-mediated research because the researcher is not physically present to debrief participants at the end of a study. Despite this complication, an estimated 17% of webbased studies utilize some form of deception (Skitka & Sargis, 2006, p. 546). (More information on deception in research can be found in Chapter 19 of this volume.)

Poststudy Debriefing Ethical debriefing can be handled using strategies similar to those for providing consent. For studies involving minimal risk and no use of deception, it may be adequate for researchers to provide a simple debriefing or thank you page and restate the researcher’s contact information. However, for riskier studies or those involving deception, it may be useful for researchers to take additional precautions to ensure that participants are adequately debriefed and not suffering from distress. For minor concerns, participants can be requested to call or e-mail during specified office hours. For urgent concerns, participants can be supplied with crisis hotline information or a mobile phone number for a member of the research team. In a recent personality

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study involving more than 10,000 participants, only two participants phoned the researcher directly and were nonurgent in nature, suggesting that fears of dramatic side effects may be slightly overblown (Hoerger, 2009).

Voluntary Dropout Debriefing pages may be successful for participants who complete the entire course of a study, but they do not adequately address the concerns of participants who are so distressed as to abandon the study before completion. Fortunately, Nosek and Banaji (2002) have identified several strategies to ensure that participants have the option of debriefing, even if they voluntarily dropout of the study. At a minimum, researchers should consider making basic contact information readily accessible, such as in a header or footer on each page of the study. If the study is embedded within the context of a research website, the contact information could be provided on the homepage or a contact information page. Another strategy is to include a link on each page of the study entitled “Exit This Study,” which can automatically link to debriefing information. The consent form can be used to orient participants to the exit link. In fact, Varnhagen et al. (2005) emphasized that it may be useful to emphasize important information, such as voluntary dropout procedures, in the consent form using bold text or colors that draw the reader’s extra attention.

Involuntary Dropout Although generally rare, participants may be disconnected from a web-based study involuntarily because of a computer freeze, power outage, Internet connection problem, or a glitch in the study’s website. As with many ethical dilemmas, prevention is key, and researchers can prevent many foreseeable programming glitches by thoroughly piloting their studies across a variety of web browsers (Michalak & Szabo, 1998). Nonetheless, some technical problems will be unavoidable. To accommodate this issue, Nosek and Banaji (2002) suggested embedding the study within a website that includes a FAQs page or a debriefing page, which participants can view should they later return to the site.

RESPECT FOR PERSONS The Ethics Code (APA, 2010) describes respect for the rights and dignity of people as an underlying value of the profession, and respect for human dignity is much of the basis of Kantian ethics (Janosky, Leininger, Hoerger, & Libkuman, 2009, pp. 69–71). Whereas this value holds general implications for psychology research and practice, Internet-mediated research raises several unique concerns for respecting individuals.

Respecting Public Community Space Recently, several undergraduate students raised an ethical issue regarding a psychology professor who chose to open the first day of class with an “Embarrassing Facebook Photo Slideshow,” which displayed an array of unbecoming student pictures the instructor found posted publicly on the popular web-based social networking site. The instructor’s failure to recognize the mere possibility that students would henceforth view him as a “creeper”—a sort of Internet peeping Tom—shows a clear lack of understanding of modern Internet mores. Internet users and their various online communities represent a unique system of subcultures, with complex and constantly evolving values, customs, and norms (Pittenger, 2003; Porter, 1996). Keller and Lee (2003) argued that psychologists have difficulty understanding and addressing modern technico– ethical issues. Similarly, prior ethical guidelines for web-based research have emphasized that researchers must make greater efforts to understand and respect basic online community norms (Kraut et al., 2004). As the students’ reaction to the opening Facebook example would suggest, an overarching norm among online communities is that much information, even when technically available to the public, is intended only for good faith use by members within the community. In the same way that citizens do not ethically rifle through each other’s trash or stare into bedroom windows, there is also a great need for what we term “private public space” on the web, areas that although within public view are consciously respected for privacy. Though some experts disagree (see Kraut et al., 2004, p. 110), researchers

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wishing to extract data from public discussion forums, chat rooms, listservs, and social networking sites should try to gain approval from relevant online community members before using the information for research purposes (Keller & Lee, 2003; Pittenger, 2003). Similar guidelines are found in the literature on multicultural research ethics, which reiterate the importance of respecting norms of cultures and subcultures in conducting ethical research (APA, 2003; Paniagua, 2005; U.S. Department of Health and Human Services, 2001). When researchers are ignorant of subcultural norms, multicultural guidelines indicate that they would be advised to consult with a community leader before initiating the study (Paniagua, 2005; Pittenger, 2003).

The Ethics Code describes that a major mission of psychologists is enhancing societal well-being, and research plays a vital role in meeting this end (APA, 2010). Furthermore, the code indicates that the benefits of a particular study must be weighed carefully against the risk of potential harm or foreseeable negative consequences of participation. Researchers minimize risk by upholding basic ethical standards, such as informed consent and confidentiality, as well as by making sound methodological decisions. In addition to maximizing the utility of research studies (Rosen, 2003), the principle of justice dictates that the costs and benefits of research should be fairly distributed among members of society (Rawls, 1971).

Research Spam

Risk of Harm

In the same vein of respecting Internet etiquette, researchers should avoid using “spam” to advertise their online studies. Spam includes a variety of tactics for abusing electronic messaging systems, including the sending of unsolicited bulk e-mail (e-mail spam) or the posting of links on irrelevant blogs (blog spam), Wikipedia pages (wiki spam), discussion forums (Internet forum spam), online classified ads (ad spam), or social networking pages (social networking spam). Study notifications sent through relevant listservs or posted on relevant websites are not considered spam, and in accordance with local IRB guidelines, would be ethically permissible (Pittenger, 2003). Although research spam may seem of minimal consequence, its farreaching and abusive nature can lead the general public to have a negative opinion toward psychology (Morimoto & Chang, 2006). More recently, psychology researchers have begun spamming others psychologists regarding studies on training experiences, professional knowledge, and attitudes, an ethically questionable trend with the potential to create a backlash against Internet-mediated research altogether.

Although a variety of reviews document the fundamental benefits of Internet-mediated research (Birnbaum, 2001; Fraley, 2003; Murray & Fisher, 2002; Skitka & Sargis, 2006), these advantages must be weighed carefully against potential harms. On the whole, web-based research tends to be very low risk, with a majority of studies examining personality traits and other individual difference variables (Kraut et al., 2004). In general, people enjoy participating in psychological research (Bowman & Waite, 2003), and this is particularly true for web-based research (Hoerger, 2009; Michalak & Szabo, 1998; Naglieri et al., 2004; Nosek & Banaji, 2002). Participants report mainly enjoying contributing to research because it furthers their education and piques their interest in psychology (Bowman & Waite, 2003). Michalak and Szabo (1998) have argued that webbased research holds much potential in this regard because researchers can post relevant links or study results directly on the study website, helping to develop participants’ burgeoning research interests. In contrast to the majority of web-based studies, several high-risk projects have been conducted to date, including those examining implicit attitudes (Nosek, Banaji, & Greenwald, 2002), stress-induction (Hänggi, 2004), and cyberostracism (Williams, Cheung, & Choi, 2000). For example, Williams et al. (2000) designed an online game of “catch” in which a group of computerized confederates ignored throwing to the research participant. Sample comments

Beneficence and Justice The principles of beneficence and justice have played a long-standing role in leading ethical metatheories involving utilitarianism and fairness (Janosky et al., 2009; Rawls, 1971; Rosen, 2003). 394

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from participants included, “No one likes me . . . I feel really rejected and sad” (p. 758) and “their behavior will surely make them feel guilty when they will notice I went away. As I leave I remember it is quite the same in my real life . . . and this is the most painful!” (p. 752). Clearly, these sorts of studies push the ethical boundaries of Internet-mediated research, though outraged ethicists should keep in mind that the anonymity of the web (real or perceived) allows participants to provide negative feedback to researchers that otherwise might not occur under the demand characteristics of the lab (Quirk, Subramanian, & Hoerger, 2007; Skitka & Sargis, 2006).

Voluntary Participation Inevitably, some participants will experience at least minor harm, such as boredom, as a result of any experiment. In the laboratory setting, participants may feel obligated to complete studies despite modest harm because demand characteristics of the lab setting are known to foster steadfast compliance (Nosek et al., 2002; Quirk et al., 2007; Skitka & Sargis, 2006). As Nosek and Banaji (2002) observed, “Implicit situational pressures in most research designs (such as politeness norms) may well discourage participants from prematurely discontinuing participation” (p. 164). An ethical advantage of Internet-mediated research, particularly for studies involving public rather than university samples, is that participants are under minimal to no situational pressure to complete an entire study against their own best interest. Unlike standard laboratory research for which the dropout is extremely rare, approximately 50% of web participants will drop out upon reading a consent form; additionally, of those consenting to participate, 10% to 30% typically will drop out before completing the entire study (Hänggi, 2004; Hoerger, 2009).

Justice and Multiculturalism A key strength of Internet-mediated research is its potential to improve justice in research by extending the risks and benefits of participation to cultural groups that historically have been underrepresented in psychological research. In particular, the web provides a number of advantages for attracting ethnically diverse participants, people

who speak languages other than English, and people from countries outside the United States (Fawcett, Schultz, Carson, & Renault, 2003; Hoerger, 2009; Muñoz et al., 2006). Additionally, groups that are accustomed to stigmatization are less likely to participate in laboratory studies where self-disclosure is likely. The increased privacy of web-based studies has helped reduce barriers to participation for a number of historically stigmatized groups (Hoerger, 2009; Mathy, Schillace, Coleman, & Berquist, 2002; Nosek et al., 2002; Skitka & Sargis, 2006). Similarly, the web has facilitated the study of low base rate phenomena and has helped reduce barriers to access for those with difficulty physically attending lab sessions (Mathy et al., 2002; Skitka & Sargis, 2006). A potential justice concern for web-based research is that people who have Internet access are disproportionately likely to be young, well-educated, White, and parents (Kraut et al., 2004; Naglieri et al., 2004; Skitka & Sargis, 2006). Thus, the haphazard use of this methodology potentially could inflate injustice, particularly if the results are unjustifiably generalized to populations other than those used in the research sample. To combat this concern at the micro level, researchers should make strong efforts to recruit participants from diverse backgrounds and should consider conducting research specifically designed to benefit groups that have historically faced injustice, such as by using Internet-mediated community-based participatory research (Fawcett et al., 2003). At the macro level, researchers can advocate for greater public access to the Internet, whether via public computer terminals or citywide wireless access (Eng et al., 1998). For example, in a clinical research trial in San Francisco, researchers are looking to improve clinical services for Latino/as by implementing an online psychoeducational treatment for depression, in Spanish, through public computer terminals in the hospital (L. Torres, personal communication, March 25, 2009).

Democratizing Research Based on the principle of justice and a desire for scientific integrity, the field of psychology strives to ensure that the best studies are conducted and published, regardless of extraneous factors, such as 395

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personal or institutional finances and prestige. In fact, in a recent review, Kraut et al. (2004) observed that the Internet has democratized data collection. Researchers no longer need access to introductory psychology classes to recruit research subjects and often do not need grant money to pay them. One consequence is that faculty at small schools, independent research scholars, graduate students, and undergraduates can all potentially contribute to research. (p. 106) Clearly, in automatizing data collection, a greater wealth of information can be gathered, substantially accelerating the acquisition of new knowledge in the field. Furthermore, psychology students will be able to conduct meaningful, high-powered studies earlier in their training, perhaps increasing their enthusiasm for research. One potential concern is that more research does not necessarily mean better research, so advisors, dissertation chairs, IRBs, and reviewers will need to continuously safeguard the methodological rigor of psychological research. RESOURCE ALLOCATION An essential reason psychologists have rapidly begun to conduct more studies on the web is to improve research efficiency, a goal with fundamental roots in utilitarian philosophy and the principle of beneficence (APA, 2010; Rosen, 2003). Essentially, research assistants are no longer needed to run participants or enter data manually. Barriers to partaking in research are also reduced as participants can complete studies in the comfort of their own homes, rather than traveling to research laboratories—particularly important for community participants, commuter students, working students, and students with disabilities (Hänggi, 2004; Nosek & Banaji, 2002). Although the use of general public samples has several foreseeable psychometric advantages, the potential cost and difficulty of advertising effectively online can be prohibitive, leading many web-based researchers to continue using university samples (Skitka & Sargis, 2006). This section describes potential advantages and 396

disadvantages of Internet-mediated research in terms of resource allocation among individual research teams as well as psychology departments.

Efficiency of Online Research Internet-mediated research provides a number of benefits over traditional laboratory research. These include greater efficiency in participant recruitment, decreased research time and costs, greater sample heterogeneity, improved external validity, greater environmental benefits, reduced barriers to access for participants, increased ability to gather time-sensitive data, and improved atomization of basic data analyses (Birnbaum, 2001; Fraley, 2003; Hoerger, 2007, 2009; Hoerger, Quirk, Lucas, & Carr, 2009; Murray & Fisher, 2002; Skitka & Sargis, 2006). These advantages make web-based research appealing to psychologists in a variety of research domains. In fact, if efficient use of available resources is an ethical imperative in psychological research, the failure to use Internet-mediated research when methodologically practical would be ethically questionable.

Departmental Subject Pools A potential side effect of this efficiency, particularly when university samples are used, is that departmental subject pools are being overburdened. As Skitka and Sargis (2006) reminded us, “With the increasing emphasis on research comes an increasing need for a stable research participant pool” (p. 14). Despite that 75% of graduate psychology programs rely on some form of a departmental subject pool, the literature on the ethics of these pools is relatively scant (Bowman & Waite, 2003; RoskosEwoldsen, Burton, Bichsel, Willis, & Spruill, 1998; Sieber & Saks, 1989). Thus, we explore several options for handling the gap between the Internetmediated researcher’s demand for additional participants in light of a departmental subject pool’s limited supply. Most departments likely will adopt an amalgamation of these strategies. One solution involves increasing the supply of available research participants by increasing course requirements or incentives for participation. Presumably, the ethical rationale for departmental subject pools is that psychological research is valuable both to the field and to society, and undergraduates

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should gain applied exposure to research endeavors to enhance their knowledge and appreciation of research (Bowman & Waite, 2003; McCord, 1991; Roskos-Ewoldsen et al., 1998; Sieber & Saks, 1989). As psychological research continues to expand, the importance of research training also increases, perhaps justifying periodic changes designed to increase research participation. Obviously, frequent semester-to-semester changes in subject pool obligations, at the bequest of researchers’ demands, would serve little educational rationale and function coercively (McCord, 1991). Given the low ethical standards of current departmental subject pools (for reviews, see McCord, 1991; Roskos-Ewoldsen et al., 1998), any strategies for increasing participant recruitment should be met by improved alternatives to participating in research studies. (More information on subject pools can be found in Chapter 12 of this volume.) A second solution to the supply–demand imbalance is to place stricter caps on the maximum number of participants researchers can enroll in individual studies. Often, IRB panels require researchers to include a power analysis with their studies to guard against the frivolous recruitment of research participants. The limitation of this solution is that a weak capping system fails to solve the problem, and an overly restrictive capping program imposes barriers on conducting sophisticated high-powered studies, which are becoming increasingly important in the era of structural equation modeling. Thus, overly rigid capping systems threaten to harm the quantity and quality of research, which falls contrary to psychologists’ ethical obligation to defend “the central importance of freedom of inquiry and expression in research” (APA, 2010, p. 2). Some departments have considered a third solution that involves providing differential incentives for laboratory and web-based studies, such that participants earn more subject pool credit for completing studies conducted in a lab. Presumably, this compensates participants for the greater effort needed to physically attend laboratory sessions. Unfortunately, this merit structure tends to reinforce notions that web research is second class or that lab research is inherently burdensome.

Additionally, in the free market of research, voluntary participation and researcher innovation are both hindered by providing undue subsidies for lab research (or taxes on web-based research). In a final solution, web-based researchers largely opt to transcend the departmental subject pool system, favoring public samples over those drawn from universities. This option prevents ethical dilemmas arising from subject pools, particularly helping to guard against coercion. Brief studies or those of broad public interest are likely to be successfully conducted online. In fact, it is suspected that many current web studies currently are being conducted with undergraduate participants rather than public samples, merely because subject pools are convenient and researchers have felt little push to change. CONTINUING EDUCATION The Ethics Code (APA, 2010) emphasizes the importance of maintaining professional competence. This is particularly necessary for meeting ethical demands in light of ongoing technological advancements in Internet-mediated research, and continuing education affords opportunities for meeting this objective (Jerome et al., 2000). At the same time, researchers should not be overwhelmed by web-based technology. Although web surveys, for example, have become increasingly popular and more aesthetically pleasing in recent years, much of the underlying web coding has changed little in the past 15 years. In taking modest efforts to seek ongoing continuing education, Internetmediated researchers will be well-equipped for handling new ethical and methodological issues as they emerge. CONCLUSION In closing, the following review provides recommendations for conducting ethical and successful Internet-mediated research: 1. Avoid unnecessary technical difficulties by piloting studies extensively. 2. Draw on public samples to promote generalizability, reduce coercion, enhance justice, 397

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3. 4. 5. 6.

7.

8. 9.

10.

decrease burdens on subject pools, and improve public knowledge of psychological research. Use the pervasive power of the web to conduct studies with diverse participants. Understand what types of technical information are considered personally identifiable. Conduct studies anonymously when feasible. Embed studies within the context of a broader research website that also includes pages devoted to contact information, FAQs, debriefing materials, and related links. Monitor ongoing research, ethical, and technical issues in the field of Internet-mediated research to maintain competence. Bridge the gap between research and technology by learning basic web coding. Enhance the existing ethical standards for departmental subject pools, as they are likely to require further safeguards as researchers become more productive. Use technological innovation to conduct studies on the web that would be impossible given other methodologies.

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CHAPTER 19

DECEPTION IN RESEARCH Allan J. Kimmel

Decisions about particular research questions and associated methodological issues are inextricably bound to ethical considerations, a fact that has grown out of an extended process of self-reflection within the discipline of psychology. The link between methodology and ethics is perhaps no clearer than in the case of deception for research purposes, which, of all the ethical issues that have aroused debate within the discipline of psychology, arguably has proven to be the most contentious. Once used as a matter of course in human participant research, deceptive procedures are now subject to rigorous scrutiny both within and outside the discipline: Their use must be justified by the methodological objectives of the investigation; their potential for harm must be determined and addressed; and their application must conform to professional guidelines, legal strictures, and review board oversight. This chapter considers the various issues and implications involved in using deception in research, including arguments for and against deception, frequency of deception in psychological research, consequences of deception on research participants and the public’s perception of psychology, alternatives to deception, means for minimizing harm, and debriefing. The chapter concludes with suggestions for ethical decision making about when to use deception in research. THE NATURE OF RESEARCH DECEPTION AND REASONS FOR AND AGAINST ITS USE Ethical developments in psychology were promulgated in large part by the dramatic rise in the use of

deceptive methodologies, a trend best exemplified by research carried out within the areas of personality and social psychology. Deception largely emerged as a practical solution to the experimenter– participant artifact problem—the recognition that participants come to the research setting not as passive automatons who respond mechanistically to the manipulations to which they are subjected, but as conscious, active problem solvers who often attempt to guess the investigator’s hypotheses to do the right (or good) thing (Kimmel, 2006). Accordingly, the primary justification for using deception in laboratory settings has been a purely methodological one—that if researchers conformed to the letter of the law regarding informed consent and did not deceive participants at all, then many investigations would be either impossible to conduct or would result in biased findings. In addition to deception, other strategies have been utilized to circumvent the potential validity problems linked to experimenter– participant artifacts, such as the employment of unobtrusive observations in naturalistic settings. Such research approaches also have given rise to ethical concerns, including the fear that they impinge on individual rights to privacy, confidentiality, and voluntary participation in research. For a scientific discipline oriented toward benevolent objectives associated with the betterment of humankind via an understanding of behavior and mental processes, the language of psychology’s methodology is replete with terms bearing pejorative connotations. Words such as deception, control, manipulation, confederate, coercion, and the like have

DOI: 10.1037/13272-019 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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become so much part and parcel of the research process that it is easy to forget their original meanings outside the research context. With regard to deception, the everyday meaning of the term—the intentional effort to mislead people—is not lost within the research context, where the nature of the deception that is employed may take different forms to satisfy research objectives.

Types of Research Deceptions Psychology researchers have used different kinds of research deceptions within both laboratory and field settings for varying purposes. In laboratory studies, participants are at least aware that they are involved in a study, whereas participants in field studies may or may not be aware of that fact. In either setting, deception may be of the active or passive sort. Active deception is deception by commission, as when a researcher blatantly misleads the participant about some aspect of the investigation. Research procedures that represent examples of active deception include (a) misrepresentation of the research purpose, (b) untrue statements about the researcher’s identity, (c) use of research assistants (called confederates, stooges, or pseudosubjects) who act out predetermined roles, (d) false promises (including violation of the promise of anonymity or delivery of research incentives), (e) incorrect information about research procedures and instructions, (f) false explanations of scientific equipment and other measurement instruments, (g) false diagnoses and other reports, (h) use of placebos (i.e., inactive medication) and secret application of medications and drugs, and (i) misleading settings or timing for the investigation. Passive deception is deception by omission, as when the researcher purposely withholds relevant information from the participant. With passive deception, a lie is not told; rather, a truth is left unspoken. Deceptions by omission include such research practices as (a) concealed observation, (b) provocation and secret recording of negatively evaluated behavior, (c) unrecognized participant observation, (d) use of projective techniques and other personality tests not identified as such, and (e) unrecognized conditioning of behavior. Surveys of the psychology research literature reveal that the provision of a false purpose or cover story and making 402

false statements about the procedure or study materials represent the most prevalent forms of active deception utilized by investigators; withholding information about the purpose of the research or aspects of the procedure represents the most common form of passive deception (Gross & Fleming, 1982; Kimmel, 2001, 2004). Deceptions differ according to the degree of severity of their potential negative effects, a crucial consideration that must enter into decisions about whether to proceed with a study as planned (Lawson, 2001). Severe deceptions are those that create false beliefs about central, important issues related to participants’ self-concept or personal behavior, as when an experimental manipulation leads participants to believe they lack self-confidence. Mild deceptions are those that create false beliefs about relatively unimportant issues peripheral to participants’ self-concept, such as misleading them about the research sponsor or study purpose (Toy, Olson, & Wright, 1989). For example, mild deceptions are commonly used in studies measuring reaction time and memory, where participants are not forewarned that they will be faced with a recall test after exposure to stimuli or that their reaction time is being measured. Severe deceptions can be expected to create negative affect both during and after actual participation in the research (e.g., upset or anxiety linked to a reduced self-image), whereas mild deceptions are unlikely to create negative beliefs and affect until the debriefing session at the end of the study (e.g., disappointment that the study was not really supported by an alleged sponsor). The fact that psychologists are more likely to employ severe deceptions that are relevant to the fundamental beliefs and values of research participants than are investigators in related fields, such as marketing and organizational research (Kimmel, 2004; Smith, Kimmel, & Klein, 2009), to some extent explains why deception has long been such a central issue in psychology. Studies involving severe deceptions (e.g., undisclosed mood manipulations that leave participants feeling depressed) are harder to justify when ethical principles are applied and are more likely to encounter problems when subjected to committee review. Although mild deceptions are unlikely to cause harm to participants,

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they still can be morally problematic (Kimmel & Smith, 2001). Deception in the research context may or may not be intentional (Baumrind, 1985; Keith-Spiegel & Koocher, 1985). Nonintentional deception, which cannot be entirely avoided, includes absence of full disclosure, failure to inform, and misunderstanding. Intentional deception, on the other hand, includes the withholding of information to obtain participation, concealment and staged manipulations in field settings, and deceptive instructions and confederate manipulations in laboratory research. Absence of full disclosure does not constitute intentional deception, so long as participants agree to the postponement of full disclosure of the research purpose. But when the investigator’s purpose is “to take the person unaware by trickery” or to “cause the person to believe the false” for whatever reason (e.g., to induce persons into agreeing to participate or to reduce threats to causal inference), the study invariably involves intentional deception (Baumrind, 1985, p. 165). The notion of nonintentional deception suggests that while full disclosure of all information that may affect an individual’s willingness to participate in a study is a worthy ideal, it is not a realistic possibility. Even the investigator with a sincere desire to disclose all relevant aspects of a study’s purpose and procedure nonetheless may fail to reveal certain information. In part, this may be a function of the researcher taking for granted that participants have a basic level of knowledge about scientific procedures,

testing materials, and the research equipment used. In other cases, information provided to participants, such as that involving complex experimental research procedures, may not be fully understood. Certain participant groups (e.g., young children and the mentally impaired) have cognitive limitations that seriously limit the extent to which fully informed consent can be obtained. When considering potential dilemmas involving the use of deceptive research practices, it is important to recognize that the effects of deception may benefit recipients or others (e.g., self-insight, increased understanding of science, scientific advancement and progress) or harm recipients (e.g., mental anguish, loss of trust, increased suspiciousness), and may be short or long term and immediate or delayed. Although most readily thought of as a practice that is employed during the data collection stage, deception may be used at each stage of the research process (see Table 19.1). Furthermore, deception can have consequences for each of the parties involved in the research process (see Table 19.2). In sum, studies differ in terms of the nature and degree of deception used, and the timing during which deception is utilized. Because it is unlikely that researchers can convey everything about a study to participants, it may be that all behavioral research is disguised in one respect or another and that the range of ethical questions related to the use of deception must be thought of as falling on a continuum. The style of the deception is not so much

TABLE 19.1 Use of Deception at Various Stages of the Research Process Participant recruitment

Research procedure

Postresearch/application

Identity of researcher and/or sponsor

Misrepresentation of purpose

Violation of promise of anonymity

Purpose of research

False information about procedures, measures, and the like

Breach of confidentiality

Participation incentives

Withholding information

Misrepresenting implications of research results

Involving people in research without their knowledge

Concealed observation

False feedback during debriefing session

Note. From “Deception in Marketing Research: Ethical, Methodological, and Disciplinary Implications,” by A. J. Kimmel and N. C. Smith, 2001, Psychology and Marketing, 18, p. 669. Copyright 2001 by Wiley-Blackwell. Adapted with permission. 403

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TABLE 19.2 Potential Costs and Benefits of Deception Studies Recipient

Benefits

Costs

Participant

Increased understanding of science and the research process Self-insight (from personal content revealed by deceptive probes)

Inflicted insight Embarrassment Image of science lowered Mistrust of others

Researcher

Capacity to elicit spontaneous behavior from participants Increased degree of methodological control Enhanced reputation from successful research endeavors

Legal sanctions (e.g., if confidentiality is breached) Undermines integrity and commitment to the truth Tarnished image

Profession

Facilitates attempts to determine validity of theories, previous research, and assessment instruments

Exhausts pool of naïve participants Jeopardizes community and industry support for the research enterprise

Society

Scientific advancement and progress Increased understanding of behavior Insight into applications toward the betterment of humanity

Undermines trust in expert authorities and science Increased suspiciousness (e.g., self-consciousness in public)

Note. From “Deception in Marketing Research: Ethical, Methodological, and Disciplinary Implications,” by A. J. Kimmel and N. C. Smith, 2001, Psychology and Marketing, 18, p. 668. Copyright 2001 by Wiley-Blackwell. Reprinted with permission.

the issue as is its probable effects. The justification for using deception in research is of paramount importance because to deceive is to move people to act against their will and is a common reason for distrust (Bok, 1992; Darke & Ritchie, 2007).

Why Deceive? When social psychologist Stanley Milgram (1963, 1974) carried out his well-known series of experiments on obedience to authority at Yale University between 1960 and 1964, deception had not yet become a common fixture in psychological research laboratories. Yet Milgram’s project, perhaps more than any other, aroused initial concerns about the ethicality of using deception to satisfy research objectives and gave impetus to the development of internal standards regulating the use of deception within the discipline of psychology (Benjamin & Simpson, 2009). Other controversial deception studies, such as the Stanford prison experiment in psychology, the “tearoom trade” research in sociology, and the Tuskegee syphilis study in biomedicine also greatly contributed to a rise in sensitivities and stimulated debate about deception in research (see Bok, 1978; Diener & Crandall, 1978; Kelman, 1967; Kimmel, 2007). Milgram (1963) misled his volunteer 404

participants into believing that they were administering dangerous electric shocks to an innocent victim, an experimental confederate who was portrayed as an ordinary research participant. The central deception in the obedience studies involved presenting the experiment as one pertaining to the effects of punishment on learning, with the volunteers instructed to deliver increasingly stronger electric shocks (up to 450 volts) each time the learner– confederate made a mistake on a simple memory task. In actuality, the learner did not receive shocks, but made a number of preplanned mistakes and feigned pain on receiving the punishment. The goal was to observe the extent to which participants obeyed the authority of the experimenter, who ordered them to proceed with the procedure despite their protests and the confederate’s apparent agony. Milgram received high praise for his ingenious experiments, which in a broader sense were intended to shed light on the Nazi atrocities committed in obedience to the commands of malevolent authorities during World War II, and his research continues to resonate to this day (e.g., a 2009 special issue of American Psychologist was devoted to the obedience research). But the research eventually became the target of scathing attacks (e.g., Baumrind, 1964;

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Kelman, 1967), which centered on the potential adverse outcomes stemming from the deceptive methodology; specifically, that Milgram had subjected participants to extreme levels of stress and guilt as a result of their believing that they harmed innocent victims, that he should have terminated the experiment at the first indications of participant discomfort, and that he alienated participants from future participation in research and harmed their image of the discipline. These points typify some of the common ethical arguments against the use of deception in psychological research, which, in one form or another, suggest that because it involves lying and deceit, its employment in research is morally reprehensible and may have potentially harmful effects on each of the parties involved in the research or implicated by it (Bassett, Basinger, & Livermore, 1992; Christensen, 1988; Kimmel & Smith, 2001; Ortmann & Hertwig, 1997). In short, critics of deception have decried its use on moral, methodological, and disciplinary grounds: 1. Regardless of the anticipated research ends, it is morally wrong to mislead research participants because deception is a clear violation of the individual’s basic right to informed consent and undermines the trust inherent in the implicit contractual relationship between the researcher and participant. 2. Deceptive procedures could harm research participants by lowering their self-esteem (via embarrassment or “inflicted insight”—i.e., undesirable self-revelations) and impairing their relationships with others, or by serving as a model for deceptive behavior in participants’ subsequent actions. 3. Deception places participants in a subservient, powerless role in the research context and ultimately may help shape a negative attitude toward research participation. 4. The use of deception may prove to be selfdefeating to the extent that its use increases the suspicions of future research participants about investigators and the research process, thereby exhausting the pool of naïve participants. 5. Deceptive techniques reduce the public’s trust in social scientists and give the research professions

a poor reputation, thereby jeopardizing community and financial support for the research enterprise and public trust in expert authorities. The arguments espoused by Milgram (1964, 1974) and others (e.g., Benjamin & Simpson, 2009; Miller, 2009) in defense of the use of deception in the obedience experiments center on the theoretical or social advances gained from the research findings; the avoidance of misleading findings that might have resulted from the study had participants not been deceived (i.e., the deceptive procedure provided the necessary “technical illusions” for studying the power of a malevolent authority to elicit obedience; for a contrary view, see Patten, 1977); and that participants would have an opportunity to learn something about psychology, to perhaps gain some positive insight about their own behavior, and to feel good about their contribution to the research process. The following arguments reflect those typically posited as justification for deceptive research procedures (e.g., Bonetti, 1998; Bortolotti & Mameli, 2006; Kimmel, 1988, 1998; Pittenger, 2002): 1. Deception enables the researcher to increase the impact of a laboratory setting, such that the experimental situation becomes more realistic, thereby enhancing the study’s internal validity. 2. Deception can reduce the effects of participants’ motives and role-playing behavior in the experimental situation. 3. Certain significant areas of human life cannot be experimentally studied in an otherwise ethical manner; that is, deception can create a reasonable facsimile of the topic of interest without placing individuals in compromising or dangerous real-life situations for achieving research objectives. 4. Potential negative effects resulting from deception (e.g., threats to self-esteem, guilt, embarrassment) can be reduced through intensive prescreening of participants or removed through careful postexperimental procedures, such as debriefing. 5. Participation in deceptive research can serve as an involving learning experience for participants, by providing insight into their own or others’ behavior, as well as the research process. 405

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Clearly, there are compelling arguments both for and against the use of deception in psychological research. Although the argument can be made that deception in research—whether by omission or commission—represents a serious violation of human rights and is never morally justifiable (Baumrind, 1971, 1975), it generally is understood that the application of such a position would preclude research on certain essential topics, such as placebo effects or social attitudes, and thus would provide a significant barrier to scientific advance within the discipline. The recognition that deception may have beneficial or harmful consequences for participants, society, and the scientific discipline of psychology has moved much of the ethical debate away from the question of whether deception should be allowed at all to a focus on the circumstances under which its use could be considered ethically acceptable (Kimmel, 2003, 2006; Smith et al., 2009). TREATMENT OF DECEPTION BY INSTITUTIONAL REVIEW BOARDS AND ETHICAL CODES Decision making regarding the propriety of using deception in a research investigation usually comes down to the weighing of potential costs and benefits, with the decision to proceed contingent on a preponderance of likely beneficial consequences, assuming no alternative approaches could be utilized to satisfy research objectives. Although not formally grounded in theories of moral philosophy, this cost–benefit approach is consistent with consequentialist (e.g., utilitarian) theories, which hold that the morally right action would be the one that produces at least as good a ratio of good to bad consequences (e.g., in terms of welfare or utility) as any other course of action, including not carrying out the action at all (Pittenger, 2002). Nonconsequentialist (e.g., deontological) theories maintain that the ethical evaluation of an action generally would reflect an assessment of its consistency with binding moral rules or duties—such as to always tell the truth—and consequences are not of primary importance. Such an approach would preclude the use of any deception in research because to deceive would 406

violate an overriding obligation always to be completely honest with participants. The cost–benefit approach derived from consequentialist theories is incorporated within the procedures utilized by most ethics review committees and provides a framework for the standards and guidelines that appear in human participant ethical codes worldwide (Kimmel, 2007). In short, deception in research is considered to be morally permissible to the extent that it is consistent with certain principles. In some respects, this position is analogous to how lying is treated in everyday life. Although lying generally is considered to be wrong, most people prefer to live in a world where some lying is permissible, such as white lies, lies to certain kinds of people (children, the dying), and lies to avoid greater harms. In these situations, it is important for the persons telling the lies to be able to justify their actions, if only to themselves. In the research context, a similar logic prevails, where the researcher’s justification for deception is guided by ethical standards, governmental regulations, and external review.

Deception and Institutional Review The impact of governmental regulation on the use of deception in human research has been substantial. Before the establishment of federal regulations, few university departments of medicine (Curran, 1969; Welt, 1961) and probably no departments of social and behavioral science (Reynolds, 1979) required any type of committee review. In the 21st century, ethical review boards are commonplace in most research-oriented institutions, and now extend beyond psychology, sociology, and anthropology to social science fields less typically associated with committee approval, such as history (Shea, 2000). Although unfunded studies no longer require institutional review according to current U.S. federal regulations, most universities, hospitals, and other research settings likely require some form of review for the approval and monitoring of all human research conducted at those institutions (e.g., Cohen, 2007; Rosnow et al., 1993; Rutecki, Youtsey, & Adelson, 2002). In the United States, federal safeguards concerning the rights and welfare of human participants in

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research have been in place as part of U.S. Public Health Service policy since 1966, although the initial focus was limited to clinical research in the medical fields (McCarthy, 1981; Seiler & Murtha, 1980). Significant progress toward the development of guidelines for behavioral research came about with the signing into law of the 1974 National Research Act, creating the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research and initial requirements for the ethical review of human research by institutional review boards (IRBs), except for broad categories of research that posed little or no risk of harm. (More information on the development of federal regulations for research can be found in Chapter 16 of this volume.) For the approval of research covered by the federal regulations, an IRB at the institution where the research has been proposed must determine whether risks to participants are minimized by sound research procedures and are outweighed sufficiently by anticipated benefits to the participants and the importance of the knowledge to be gained, the rights and welfare of subjects are adequately protected, the research will be periodically reviewed, and informed consent has been obtained. Informed consent includes (a) describing the overall purpose of the research, (b) telling participants their role in the study and why they have been chosen, (c) explaining the procedures, (d) clearly stating the risks and discomforts, (e) describing the benefits of the research to participants, and (f) offering to answer any questions and stating that the participant may withdraw at any time without negative consequences. Although not rejecting the use of deception outright, the criteria for informed consent require researchers to justify the use of deception to review boards, unless the investigation constitutes a minimal risk study. As behavioral scientists have become more vocal about the need for American psychologists to broaden their research focus to the 95% of the world’s population who are not Americans (e.g., Arnett, 2008; Cole, 2006), it is likely that an increasing number of studies will be carried out in countries where varying regulations apply. Ethical review boards are a common feature of human research regulation in numerous

countries around the world. For example, all members of the European Union adhere to a directive (European Parliament and Council, 1995) requiring ethics committees for research. A survey of review procedures in other European member states is available online (Privacy in Research Ethics and Law, 2005). For an overview of research review regulations in other countries, see Kimmel (2007), Leach and Harbin (1997), and Seligman and Sorrentino (2002). Despite the growing prevalence of institutional review, various limitations to this form of ethical regulation have been noted, particularly in terms of what constitutes acceptable use of research deception. Typically, review committees offer little specific guidance on deception a priori (feedback on rejected research protocols generally may refer to problematic use of deception or insufficient informed consent) and researchers depend on the preferences of the individual IRB members who possess varying personal norms and sensitivities for assessing costs and benefits (Kimmel, 1991; Rosnow, 1997; Rosnow & Rosenthal, 2011). IRBs can maintain inconsistent standards across time and institutions, such that a proposal that is approved without modification in one institution may require substantial changes, or else be rejected, by a review board at another institution (e.g., Ceci, Peters, & Plotkin, 1985; Rosnow et al., 1993). Furthermore, there are limits on information that can be requested of citizens in varying research contexts. Thus, researchers often will be guided primarily by departmental norms (including those of other departments where they have worked or trained). Although codes of the relevant professional associations often refer to an important role for IRBs, typically it would be necessary to make recourse to the actual codes to obtain a priori guidance on the use of deception (Smith et al., 2009).

The American Psychological Association’s Ethical Standards The current Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; American Psychological Association [APA], 2010) is the result of a more than 50-year history of development and revision, including substantial strengthening of its research guidelines in the wake of debate about the 407

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use of deception in controversial studies (cf. Kelman, 1967). The research guidelines emphasize voluntary participation and informed consent as fundamental prerequisites for research with human participants, ethical requirements that date back to the 1947 Nuremberg Code, a general set of standards formulated to prevent atrocities like those perpetrated by Nazi researchers, and the forerunner to all subsequent guidelines governing experimentation with human participants (Schuler, 1982). Ethics Code Standard 8.07, Deception in Research, dictates that deception should be used only if (a) effective, nondeceptive alternative procedures are not feasible, (b) the research is not likely to cause physical pain or severe emotional distress, (c) deceptions that are integral features of the study’s design are explained to participants as early as possible during a debriefing, and (d) a study’s results are likely to be sufficiently important (because of “the study’s significant prospective scientific, educational, or applied value”). Standard 8.01, Institutional Approval, acknowledges that investigators may be required to obtain institutional approval through their IRB before conducting research. Standard 8.07 is built on an ethical dilemma, one that brings into conflict two of the profession’s core values, the value of advancing the science of psychology through research (as explicated in APA’s, 2009, Vision Statement and in Principle B, Fidelity and Responsibility, in the Ethics Code, the latter of which emphasizes psychologists’ “scientific responsibilities to society”) and the promotion of truthfulness (as spelled out in the Ethics Code’s Principle C, Integrity, which maintains that “psychologists seek to promote accuracy, honesty, and truthfulness in the science . . . of psychology”; Behnke, 2009). Although the standard incorporates a utilitarian approach for resolving this dilemma, it does not clarify how it can be determined that the results of a study are “sufficiently important” to adequately justify the use of deception. In fact, the various criteria spelled out for the use of deception in the Ethics Code have fueled extensive debate regarding interpretation of the principles and their implementation (Kimmel, 2007; Schuler, 1982) and, despite obtaining feedback from researchers before the adoption of new versions of 408

the code, APA members never reached consensus as to the specific wording of the standards for research or how to apply them. (A separate code of ethics for members of the Association for Psychological Science [APS] currently does not exist. The APS board of directors approved a brief, general statement of principle that is consistent with the society’s interests in scientific and personal integrity but that does not put APS in the position of judging the conduct of its members. The statement requires APS members to adhere to all relevant codes of ethical behavior and legal and regulatory requirements.) Despite its various limitations, the APA guidelines have served as a model for other professional associations, including the Australian Psychological Society, the Canadian Psychological Association, and the British Psychological Society (cf. Kimmel, 2007; Leach & Harbin, 1997). The criteria for the use of deception in research in the current code of the American Sociological Association (ASA, 1999) are nearly identical to those of the APA (2010). The ASA utilizes the same cost–benefit approach, although it does allow a broader interpretation of harm and requires IRB (or equivalent) approval. Because sociologists commonly use nonexperimental methodologies, the code acknowledges that informed consent may not always be possible or appropriate and suggests that it should not be an absolute requirement for all sociological research. Like psychology, the field has abundant examples of controversial deception studies (Allen, 1997; Reynolds, 1982). PREVALENCE OF DECEPTIVE PRACTICES Although rarely implemented during the discipline’s developmental period, the use of deception increased substantially as subsequent generations of psychologists became more thoroughly committed to the laboratory experiment and embraced deception as a remedy for methodological concerns. By the mid-1970s, the practice of deceiving participants in personality and social psychology research, where the artifact problem was most salient, had become commonplace and, in the opinion of some (e.g., Kelman, 1967; Seeman, 1969; Warwick, 1975), was being employed as a matter of course, even in studies that did not require it for methodological

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reasons. For example, the percentage of studies using deception in the Journal of Personality and Social Psychology rose from around 20% in 1960 to nearly 70% in 1975 (e.g., Adair, Dushenko, & Lindsay, 1985; Carlson, 1971; Gross & Fleming, 1982; McNamara & Woods, 1977; Smith & Richardson, 1983; Stricker, 1967). Despite an apparent gradual decline in the employment of deceptive research procedures in recent years (e.g., estimates of the use of active deceptions suggest a decrease from 59% during the late 1970s to 40% by the mid-1990s), evidence points to its continued use within a significant number of studies of human behavior (Kimmel, 2001, 2004; Nicks, Korn, & Mainieri, 1997; Vitelli, 1988), especially in applied areas of behavioral research that have evolved out of the root discipline of psychology. A content analysis of leading marketing and consumer behavior research journals published from 1975 to 2007 revealed a steady increase in rates of reported deception from 43.4% to 80% for the coded investigations (Kimmel, 2001, 2004; Smith et al., 2009). Although a majority of the coded studies employed mild forms of deception (e.g., 70% during the 2006–2007 period), severe deceptions were observed in a further 11% of the coded investigations. Developments in psychology—including attention to new substantive domains and issues, such as preventive intervention research and health-related issues, and new contexts, such as the developing world—also point to an increasing likelihood that deceptions may cause inadvertent harm. Greater use of qualitative methodologies has brought researchers closer to their participants in terms of physical proximity and intimacy, increasing the salience of ethical considerations linked to deception (Sojka & Spangenberg, 1994). For example, a wide range of conflicts relating to deception can arise when researchers become active participants in the cultural or social contexts of the persons under investigation. In much field research, one of the key issues emerges when the researcher must decide whether to use passive deception in terms of informing people that they are part of an ongoing research investigation. This is attributed in large part to the fact that, in the natural context, the distinction between everyday life and research often blurs.

METHODOLOGICAL AND DISCIPLINARY IMPLICATIONS OF DECEPTION Researchers have evaluated deceptive procedures in terms of their methodological implications (and, to a lesser extent, disciplinary consequences), including degree of participant naiveté concerning the use of deception, consequences of suspicion on experimental validity, and the impact of deception on subsequent experimental performance. As noted, some have argued that the scientific costs and associated disciplinary consequences of deception can be considerable—that is, deception can lead to a depletion of the pool of naive participants, reduce community support for the research enterprise, and undermine researchers’ commitment to truth (e.g., Baumrind, 1985; Herrera, 1996; Hey, 1998; Oliansky, 1991; Ortmann & Hertwig, 2002). Clearly, deception is less ethically justifiable to the extent that it does not provide the methodological and disciplinary gains that are claimed. In general, the findings of studies that have examined the key methodological issues associated with the use of deception are anything but clear-cut. Overall, the body of research points to the efficacy of deception in offsetting some of the undesirable methodological consequences associated with nondeceptive research, whereas other evidence suggests that under some circumstances deception actually can exacerbate methodological problems.

Deception and Participant Naiveté Levels Findings pertaining to naiveté levels among current or prospective participants show that within certain research circumstances, the continued employment of deception does have the capacity to reduce the pool of naive research participants. This is apparent from evidence that debriefed participants may communicate the true purpose and other details of studies to future participants, even when instructed not to do so, a tendency referred to as leakage (Diener, Matthews, & Smith, 1972; Lipton & Garza, 1978). Despite findings showing that deception can undermine participant naiveté levels, there is little evidence suggesting that this is a common outcome. Overall estimates of suspiciousness regarding deceptions, 409

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research hypotheses, and the nature of experimental manipulations and assessment techniques have revealed extremely low levels of suspicion among participants. With the exception of a few early experiments on conformity revealing rather extensive suspicions (e.g., Glinski, Glinski, & Slatin, 1970; Stricker, Messick, & Jackson, 1967), estimates of the overall percentage of participants identified as suspicious range from only 1.8% to 3% (Adair et al., 1985; Kimmel, 2001, 2004). There has been little research on the extent of suspiciousness or leakage in the research setting, and investigators do not routinely probe levels of participant suspiciousness (Adair et al., 1985; Kimmel, 2001, 2004; Stricker, 1967). On the basis of results to date, there does not appear to be a rise in participant sophistication corresponding to the ongoing use of deception in behavioral studies. Nevertheless, this conclusion must be somewhat tempered by the recognition that participants cannot always be counted on to be totally forthcoming in revealing their suspicions or knowledge about research procedures and hypotheses. Similarly, the quality of suspiciousness checks by researchers may be called into question, particularly if such efforts represent only cursory attempts to demonstrate the soundness of experimental manipulations. In some early investigations, researchers found that when they assessed suspiciousness by asking their participants up to three postexperimental questions, only about 5% of the participants were classified as suspicious; this percentage increased to about 40% when more extended questioning was utilized (Page, 1973; Spielberger, 1962). More research is needed on the levels and sources of participant suspiciousness, extent of leakage, and the impact of prior experience in deception studies on perceptions of researchers’ honesty. Additionally, investigators need to more carefully evaluate the procedures they use to assess perceptions of the study and suspiciousness (Taylor & Shepperd, 1996).

Impact of Suspiciousness of Deception on the Experimental Effect The issue of whether deception leads to greater levels of suspiciousness bears little import if, in fact, skepticism regarding research procedures or 410

purpose does not have an impact on experimental performance and it turns out that naive and suspicious individuals behave similarly under the same experimental conditions. Research on the effects of distrust on experimental performance has focused on various manifestations of the issue, including the general effects of self-reported suspiciousness (e.g., Stang, 1976; Stricker, 1967), the effects of experimentally induced suspicions through the use of some variation of forewarning (or prebriefing; e.g., Allen, 1983; Finney, 1987), and the influence of prior experience in deception experiments on subsequent research performance (e.g., Cook & Perrin, 1971; Fillenbaum, 1966). Overall, the extant empirical evidence regarding the effects of subject distrust is mixed, with some studies showing that the results produced by suspicious or preinformed participants (who are made aware that deception is to be utilized in the investigation) can differ substantially from those of naive participants (e.g., Newberry, 1973; Stang, 1976). Other investigations have revealed that previous experience in deception research can affect performance in subsequent experiments, with prior deception resulting in an increased tendency for favorable self-presentation (e.g., Silverman, Shulman, & Wiesenthal, 1970). However, some researchers have been unable to obtain performance effects from persons with foreknowledge about a deceptive investigation (e.g., Allen, 1983; Wiener & Erker, 1986). Such disparities in the findings likely are linked to a variety of methodological considerations, including the specific procedure utilized to make the relevant comparisons between suspicious and nonsuspicious participants, the degree of specificity of the suspicions, the types of persons studied, and the nature and degree of deceptions involved in the research. With respect to forewarning, evidence suggests that experimental performance is more likely to be altered to the extent that participants receive explicit details about the deceptive nature of the investigation (e.g., after receiving a detailed tip-off of the true experimental purpose from a confederate) than when they merely are informed that the study might involve deception (Allen, 1983). The degree of intensity of the deceptions in a study is an important consideration, not only with

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respect to the methodological implications of participant suspiciousness, but also to general ethical concerns. If a prior deception is seen as mild and legitimate, participants simply may accept it and behave naturally, adhering to the instructions in current or later studies despite their suspicions. Assuming they have any impact at all on participants, mild deceptions would be unlikely to affect performance in the investigation during which they are employed, but they could influence performance in subsequent experiments. For severe deceptions, performance could be affected in the ongoing study as well as subsequent ones. Even when a researcher chooses not to deceive, this decision will not offset the tendency for participants to conjecture about a study’s true purpose, with each person theoretically generating his or her own hypothesis (cf. Shadish, Cook, & Campbell, 2001). These multiple hypotheses could be seen as operating as a form of error variance to the extent that they influence dependent measure values. Thus, it might be argued that by opting for deception, a reduction in error variance would result as a function of the deception having led to greater homogeneity among participants. A further complication concerns the possibility that suspiciousness can operate differentially across the conditions of a study (Diener & Crandall, 1978). Because different treatments are likely to cause dissimilar levels of suspicion, apparent treatment effects in some studies could be attributed to varying suspiciousness rates. If the rate of suspicion is not distributed randomly across treatment conditions, then omitting the data obtained from suspicious participants can increase the apparent treatment effects. Furthermore, the decision to eliminate suspicious persons from a study could lead to the loss of truly random assignment to conditions. As a result, it would be difficult for the researcher to rule out the possibility that treatment effects were caused by selection biases or, for that matter, undetected suspicion that exists differentially across conditions (Diener & Crandall, 1978). Although these problems have no easy solutions, researchers should at least attempt to assess the effectiveness of each deception used in an investigation and the extent to which participants idiosyncratically perceived the experiment and its rationale (Adair et al., 1985).

Disciplinary Consequences of Deception Another set of considerations has to do with participant reactions to having been deceived, and, in a broader sense, societal attitudes regarding the use of deception and its impact on perceptions of the discipline and science in general. The results of surveys intended to gauge reactions to deception, although now somewhat dated, have shown that most individuals in the general population apparently do not have serious objections to its use for research purposes (Collins, Kuhn, & King, 1979; Epstein, Suedfeld, & Silverstein, 1973; Pihl, Zacchia, & Zeichner, 1981; Rugg, 1975; Sullivan & Deiker, 1973). Rugg (1975) found this to be the case for several groups of individuals, including college professors and lawyers. Epstein et al. (1973) reported that college students generally accepted deception, with a majority of those questioned expecting to be deceived as participants in psychological studies. Although they viewed this as personally undesirable, they also believed that deception in research is permissible and appropriate. Similarly, Sullivan and Deiker (1973) found that psychologists tend to have more serious reservations about the use of deception than do college students. When presented with hypothetical experiments that differed in the amount of stress, physical pain, or threat to self-esteem inflicted on subjects, it was the psychologists who were far more negative toward the practices and the propriety of using deception in each instance than were the students. Whether these findings still apply in the contemporary research context is uncertain, especially as the Internet and other newly emergent communication technologies facilitate the rapid and widespread dissemination of information about ethically controversial research. News reports about indiscretions, lies, and a wide range of unethical behaviors at the highest levels of government and the boardroom are common in the 21st century; as a result, people simply may conclude that researchers are no different from other professionals in using deceptive methods to achieve their ends, but that relatively speaking the consequences are far less severe. Nonetheless, a recent assessment of African American attitudes toward participation in medical research revealed a high level of mistrust of doctors, scientists, and the 411

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government, on the basis of real and perceived examples of exploitation, and indicated that these attitudes represented a prominent barrier to participation in clinical research (Corbie-Smith, Thomas, Williams, & Moody-Ayers, 1999). Another question regarding the use of deception has to do with the belief that such practices reflect poorly on the discipline and cast suspicion on the motives of behavioral scientists. For some time, critics of deception have warned that its frequent and continued use would reduce participants’ trust of psychologists and would lead them to adopt a negative attitude toward behavioral research in general (Kelman, 1967; MacCoun & Kerr, 1987). Relative to this concern, Sharpe, Adair, and Roese (1992) administered the Psychological Research Survey to university students during two time periods (1970 and 1989) and observed a high degree of similarity in respondents’ attitudes about psychological research, suggesting that there had not been a predicted increase in negative attitudes in the participant population as a result of the continued use of deception during the 20-year span. In a more recent investigation of psychological research attitudes, Snowden, Debbaut, Jachym, Gardner, and Lecci (2003) found that psychology students tended to have more favorable attitudes toward psychological research after having completed a course in research methods in which, it is presumed, they learned about the use of and justifications for deceptive research techniques. Epley and Huff (1998) reported that deceived participants experienced little negative impact from the awareness that they had been deceived in a study, but that negative effects were apparent for the negative feedback received during the deception experiment. Deceived participants were found to be more suspicious over a period of 3 months following the initial investigation. Aguinis and Henle (2001) studied reactions to the research use of a deceptive technique known as the “bogus pipeline,” a fake laboratory apparatus that is presented as capable of detecting when participants are not giving honest responses during an experiment. Although the bogus pipeline often has been criticized on ethical grounds (e.g., Aguinis & Handelsman, 1997; Ostrom, 1973), participants perceived the technique 412

as a useful and ethical research method, even when other nondeceptive methods were available. These results may argue for a situation ethics approach to solving ethical dilemmas, whereby participants are asked whether they are concerned that certain ethically questionable practices exist after being told the reasons for utilizing them. DEBRIEFING AND RESEARCH ALTERNATIVES TO DECEPTION Extant ethical guidelines and external review boards typically require that all deceived participants be fully debriefed within a reasonable period following their involvement in a study. Standard 8.08(a), Debriefing, of the Ethics Code specifies that “psychologists provide a prompt opportunity for participants to obtain appropriate information about the nature, results, and conclusions of the research, and they take reasonable steps to correct any misconceptions that participants may have of which the psychologists are aware.” This requirement, which also obliges researchers to minimize any apparent adverse consequences for the participant, often is cited as an important safeguard against some of the potential risks inherent in the use of deception. The debriefing session can serve a variety of functions, foremost of which are to provide researchers with an opportunity (a) to assess whether participants were adversely affected by the procedures, (b) to eliminate any harm or lasting false impressions about the study, (c) to assess the effectiveness of research manipulations and extent of participants’ suspicions, and (d) to serve an educational role through an explanation of the purpose and relevance of the research (Brody, Gluck, & Aragon, 2000; Sharpe & Faye, 2009; Tesch, 1977). It is during the debriefing period that psychologists should refer a participant to an appropriately trained provider if something problematic (such as severe depression) has been revealed about that person during the study. In special cases in which confidentiality must be breached (e.g., studies in which certain individuals are revealed to be suicidal or intend to harm others), participants can be reminded of the limitations to confidentiality that were agreed on during the consent procedure, if feasible (cf. Behnke & Kinscherff,

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2002, for additional recommendations). As an additional protection to participants, Standard 8.07 now stipulates that researchers “permit participants to withdraw data” after debriefing. The effectiveness of debriefing in successfully correcting a participant’s misconceptions resulting from deception is questionable, particularly in cases in which the debriefing procedure involves only a cursory attempt by the researcher to inform participants that they were deceived. Effective debriefing may require both dehoaxing (i.e., convincing deceived participants that the information they had been given was in fact fraudulent and relieving any anxiety resulting from that information) and desensitizing (i.e., helping deceived participants deal with new information about themselves; Misra, 1992). It is possible that the realization that one has been deceived could result in a loss of self-esteem and embarrassment, in addition to creating a negative attitude toward the researcher or science (e.g., Baumrind, 1985). In this light, it is important to recognize that the debriefing process, although designed to resolve ethical problems and provide a methodological check on research methods, paradoxically can have unintended adverse effects on participants (Toy, Wright, & Olson, 2001). In some cases, it may be appropriate to withhold certain information during the debriefing (e.g., about individual differences) when it is judged that awareness could cause more harm than good to participants. Unless it is carried out with “care, effort, and vigilance,” persons already deceived once may question the validity of information provided during the debriefing (Holmes, 1976, p. 867). This is one reason that deceptive debriefings are especially ill advised. The so-called perseverance process, whereby perceptions and beliefs created during a study continue long after they have been discredited, also may cast doubt on the effectiveness of debriefings to undo the effects of deceptive manipulations. It has been shown that self-relevant and non-self-relevant perceptions (e.g., created by deceptive feedback following experimental tasks) may become cognitively detached from the evidence that created them; as a result, even after the basis for the perceptions are disconfirmed (via a debriefing), individuals may

cling to the original beliefs (Ross, Lepper, & Hubbard, 1975). It is for these reasons that some researchers have recommended a process approach to debriefing, focusing on the psychological processes that underlie the effects of deception and debriefing, and structuring postexperimental procedures accordingly (for specific suggestions for designing thorough process-oriented debriefings, see Aronson & Carlsmith, 1968; Mills, 1976; and Toy et al., 2001). An effective debriefing interview should be treated seriously as an essential element of the research process. Thus, it can be argued that an ineffective or incompetent debriefing negatively reflects on the overall quality of the research. As the quality of the research is diminished through poor experimental design or inappropriately applied procedures, it becomes more difficult to ethically justify the use of participants’ time, research funding, and the like (Rosenthal, 1994). The researcher should bear in mind the functions of debriefing as an educational tool as well as a method for identifying and ameliorating any adverse effects. Initially, the researcher should explain the procedures and reasons for them in language that is understandable to participants (which may require pretesting), including a discussion of the importance and relevance of the study. When deception is revealed, the researcher should sensitively explain that the procedure was selected as a last resort, apologize for having used it, and fully explain how the deception was carried out, perhaps by displaying and explaining specific research materials. During the entire process, the researcher needs to carefully monitor and appropriately respond to participants’ affective reactions and comments, while encouraging honest feedback about the study. Debriefing tends to be more difficult to carry out in nonlaboratory settings, especially in cases in which participants initially are unaware that they have been studied for research purposes, are no longer accessible to the researcher, or are unwilling to attend to the debriefing. In certain situations, such as naturalistic studies of overheard conversations, debriefing participants once the observations have been made could do more harm than good. There is not much a researcher can do 413

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if a participant indicates displeasure at having been secretly observed, particularly given that the observation already had been carried out. Moreover, the debriefing could raise levels of discomfort or paranoia in other public settings and have a negative impact on the image of scientists in general. A pilot study consisting of interviews with a representative selection of persons from the target group could be conducted to assess feelings about the observations and the appropriateness of debriefing actual participants. Another somewhat more uncertain remedy for some of the potential adverse effects of deception is forewarning, a type of revised informed consent procedure whereby researchers take steps to brief participants about the study at the outset, informing them that certain information may have to be withheld until the end of the investigation and that they are free to withdraw at any time. The researcher then can carry out the study only with persons who

are willing to continue. In Wendler’s (1996) view, forewarning addresses the ethical concerns associated with intentional deception by ensuring the autonomy of participants and fulfilling the researcher’s obligation to inform participants of the potential reasonable risks that might be encountered. It also likely confirms participants’ suspicions that a study involves more than meets the eye (Pittenger, 2002), suggesting that some participants may be sensitized by the forewarning to engage in problem-solving behavior and attempt to identify the nature of the deception (Geller, 1982). In addition to forewarning, other alternative procedures to deception in the laboratory setting have been proposed, such as role playing and simulations (for a discussion of these procedures, see Geller 1982; Greenberg, 1967). In general, these procedures, which are summarized in Table 19.3, appear to have only limited potential and are unlikely to supersede the use of research deception.

TABLE 19.3 Research Alternatives to Deception Research Alternative

Methodology

Quasi-controls (e.g., Rosenthal & Rosnow, 1991)

Participants are asked to reflect on what is happening during a study and to describe how they think they might be affected by the procedure. If no demand characteristics are detected, the researcher would develop a less deceptive manipulation and have the quasi-controls once again reflect on the study. If they remain unaware of the demands of the study, the researcher could then use this lower level of deception to carry out the intended investigation. Key strength: Deception can be minimized without risking a corresponding increase in demand cues. Key drawbacks: Quasi-controls are time consuming and often more costly to carry out.

Simulations (e.g., Geller, 1982)

Conditions are created that mimic the natural environment and participants are asked to pretend or act as if the mock situation were real. Variations include field simulations (simulations in highly realistic staged settings), role-playing simulations (see the next item in this table), and game simulations (participants take on roles in staged situations lasting until a desired outcome has been attained or a specified length of time has passed). Key strength: This approach preserves the key elements thought to underlie the dynamics of real-world phenomenon under study. Key drawbacks: Simulations are sometimes characterized by intrinsic deceptions; mundane realism is sometimes suspect.

Role playing (e.g., Greenberg, 1967)

Research participants are enlisted as active collaborators in the investigation. Each participant is told what the study is about and is then asked to play a role as if he or she were actually participating in the actual study. Key strengths: In contrast to deception studies, participants in role-playing studies are fully informed; the strategy allows for a wide latitude of response, is capable of exploring complex behavior, and is a more humanistic alternative to deception research. Key drawback: Role-playing results may not replicate the results that would have been obtained in traditional research, especially counterintuitive ones.

Note. From Ethical Issues in Behavioral Research: Basic and Applied Perspectives (p. 101), by A. J. Kimmel, 2007, Cambridge, MA: Blackwell. Copyright 2007 by Wiley-Blackwell. Adapted with permission. 414

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RECOMMENDATIONS FOR PRACTICAL DECISION MAKING In their ethical assessment of deception in consumer behavior research, Smith et al. (2009) derived a set of morally justifiable principles that extend beyond those currently available in extant professional codes. On the basis of an application of social contract theory (Donaldson & Dunfee, 1999; Dunfee, 2006; Sayre-McCord, 2000), a normative theory of ethics claiming that binding moral obligations can be identified through the agreement and consent of moral agents, including researchers, participants, and other affected parties, Smith et al.’s principles specify the following: Principle 1, an adherence to APA’s standards on deception, informed consent, and voluntary participation; Principle 2, the use of deception as a last resort, once all alternative procedures are ruled out as unfeasible; Principle 3, researchers do not expose participants to risks of potential lasting harm or to procedures or risks that they themselves would not submit to if similarly situated; Principle 4, participants be forewarned about the

potential use of deception; and Principle 5, researchers plan for participant vulnerabilities. These principles suggest a set of recommended practical steps for the researcher contemplating the use of deception and seeking justification for it. Figure 19.1 suggests that the initial step in the decision-making process is the determination of whether a planned study calls for the use of any active or passive deceptions. Given likely constraints in identifying passive deceptions, Smith et al. (2009) have recommended that researchers consider whether they would want to be provided with certain omitted details of the study if similarly situated (Principle 3). A second step is to assess the availability of effective alternatives to deception (Principle 2) when deception is identified. For example, as an alternative to negative mood manipulations that have aroused ethical concerns, such as those involving the presentation of false feedback to participants concerning their skills or intelligence (e.g., Hill & Ward, 1989), participants instead could be asked to write an essay describing one of the sadder experiences in their lives.

FIGURE 19.1. Decision-making tree for deception studies. From “Social Contract Theory and the Ethics of Deception in Consumer Research,” by N. C. Smith, A. J. Kimmel, and J. G. Klein, 2009, Journal of Consumer Psychology, 19, p. 494. Copyright 2009 by the Society for Consumer Psychology. Reprinted with permission. 415

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Should it be determined that alternatives to the original deception are unavailable, Step 3 in the decision tree (Figure 19.1) would require the researcher to make a careful determination of the potential risks imposed by the deception, even assuming the use of such remedial measures as forewarning, debriefing, and desensitization. Given the difficulties of predicting the potential harmfulness of a procedure, researchers could employ persons to serve as quasicontrols (see Table 19.3) who are representative of those who would participate and have them evaluate a scenario describing the study’s procedure, with appropriate researcher probes (e.g., “If something were to upset you about this study, what would it be?”). In this way, researchers could identify potentially harmful aspects of the research and modify procedures accordingly (or drop the study). Returning to the example of mood manipulations, if it is learned that respondents would be extremely upset by a procedure that provides them with false, negative feedback about their performance on a task allegedly designed to assess their abilities, another nondeceptive mood manipulation would have to be found as an effective alternative. Should the alternative also prove upsetting when considered by quasi-controls, another alternative would be needed; if none are available, a decision must be made about whether to conduct the study at all in its present form. Consistent with Smith et al.’s (2009) assertion that exposure of participants to potentially lasting harm is not permissible, Step 3a in the decision tree requires the determination of potential risks when investigating vulnerable populations whose members may be particularly susceptible to the harmful consequences of deception (Principle 5). Smith et al. have recommended that researchers consider the potential effects of deception on the most vulnerable members of the participant population (e.g., by imagining the reactions of vulnerable participants, such as the shyest student or least secure friend) or again by employing quasi-control participants. Should risks to vulnerable participants be identified, procedures that enable the screening out of such individuals from participation would be necessary (Step 3b). Beyond ensuring that participants are not harmed, a final step in the decision-making process 416

(Step 4) would require that participants be treated with dignity as important stakeholders in the research process. Participants can be thought of as another granting agency, donating their time instead of money (Rosenthal & Rosnow, 1991). It can be argued that deception undermines the dignity of research participants in the sense that to be lied to is to presume that one is unworthy of the truth; however, the use of forewarning helps to preserve dignity by enabling participants to “opt in” to the deceptive situation (Smith et al., 2009; Wendler, 1996). If the decision tree is carefully followed and deception is unavoidable, its use would be considered as ethically justified, subject to the four caveats listed at the bottom of Figure 19.1. In his partial replication of the Milgram obedience studies, Burger (2009) incorporated several safeguards consistent with the ethical decisionmaking approach described here. On the basis of the observation that the 150-volt level of Milgram’s procedure enabled accurate estimates as to whether participants would continue to be obedient or not to the end of the research paradigm, Burger employed a “150V solution”; that is, the study was stopped seconds after participants decided what to do at the critical juncture. This modification of the original procedure did not represent an alternative to deception, but it substantially reduced the risk of harm by eliminating the likelihood that participants would be exposed to the intense stress levels experienced by many of Milgram’s participants. It may be conjectured that any alternative to the deception procedure utilized in the original obedience studies would have undermined the intent of the replication, which was to determine whether obedience levels in the current era are similar to those obtained by Milgram some 45 years earlier. Among the other safeguards included in the replication to further ensure the welfare of participants were a two-step screening process to identify and exclude vulnerable participants; a repeated assurance to participants that they could withdraw from the study and still receive the monetary incentive; immediate feedback to participants that no shocks were received by the learner; and the choice of a clinical psychologist to run the experiments who was instructed to stop the procedure as soon as any adverse effects became apparent.

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Before running the study, Burger (2009) also might have conducted pilot tests to gauge representative participants’ reactions to a description of the research procedure, and actual participants might have been forewarned about the possibility of deception (assuming this could be done without unduly arousing suspicions about the legitimacy of the shock apparatus) or asked to agree to participate fully knowing that certain procedural details would not be revealed until the end of the research experience. CONCLUSION Deception represents an important research tool for psychologists and continues to serve as an essential means for overcoming the potential validity threats associated with the investigation of conscious human beings. Yet, for good reasons, it is an approach necessitating a careful balance between methodological and ethical considerations. When the methodological requirements of an investigation lead the researcher to conclude that the only way a study can be carried out is by employing deceptive research tactics, the decision to deceive necessarily results in additional ethical responsibilities: its use must be justified by the anticipated gains of the investigation; extreme care must be taken in its application to protect against potential harms; and it should be used only as a last resort, when effective alternatives are unavailable. Considering the variety and breadth of existing nondeceptive research methodologies, it is hoped that investigators will progressively explore these potentially rich sources of data as a matter of course so that deception and its corresponding ethical obligations need not be invoked. To be sure, the days during which deception was used more out of convention than necessity and accepted without comment are long past. Confronted by an increasingly daunting array of ethical guidelines, government regulations, and institutional review, investigators now are compelled to weigh methodological and ethical requirements and choose whether and how to incorporate deception within their research designs. The practical difficulties imposed by attempts to cope with these two sets of demands are linked to the recognition that the most methodologically sound study is not necessarily

the most ethical one. Most behavioral scientists, when caught up in situations involving conflicting values concerning whether to use deception are willing to weigh and measure their sins, judging some to be larger than others. The nature and degree of deceptions used in the 21st century pale in comparison to those employed by researchers during earlier decades (Rosnow & Rosenthal, 2011), which no doubt is reflective of increased sensitivities to the dignity and welfare of participants as well as trepidation concerning the way a study might be evaluated by an IRB. As to the threats posed to researchers by the growing role of external review, Mueller (2003) argued that the regulatory approach commonly followed by many IRBs is to eliminate all risk (including everyday risks, such as simple embarrassment) rather than to exercise the best judgment in evaluating research proposals. As a consequence, in the view of some observers, participation in research over time has become much safer than many of the everyday activities in which people engage (Diener, 2001). Rosnow (1997) expressed this sentiment somewhat differently when he noted that contemporary researchers are subjected to a higher level of professional ethical accountability than other professionals who supposedly serve as society’s guardians of human rights—such as lawyers, politicians, and journalists—who routinely engage in various forms of deception. Given the arguments on both sides of the ongoing debate concerning the role of deception in the research process, it is likely that our thinking about its use as a research methodology will continue to evolve into the foreseeable future.

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CHAPTER 20

LABORATORY ANIMAL RESEARCH ETHICS: A PRACTICAL, EDUCATIONAL APPROACH Jennifer L. Perry and Nancy K. Dess

Engaging in research of any kind is a privilege that carries with it weighty ethical responsibilities and opportunities. Laboratory (“lab”) animal research is a scholarly enterprise that has played an important role in the development of psychology as a science, including the development of its ethical dimensions. Much has been written on the subject, and a thorough review is beyond the scope of this chapter. Here, we articulate a practical, educational approach to the ethical care and use of lab animals in psychology in the United States. The usefulness of our suggestions will vary depending on readers’ prior knowledge, as well as on the nature of her or his past, current, and prospective relationship to lab animal research as scholar, practicing scientist, teacher, and citizen. In addition to helping ensure that lab animal research is carried out ethically, this approach should elevate the discourse about research ethics and yield skills in reasoning transferable to other domains. HISTORICAL CONTEXTS OF LABORATORY ANIMAL RESEARCH Engaging with other species as a way of knowing has long occurred in diverse religious and secular traditions, ranging from totemism and prophecy to water-witching and indigenous medicine. Nonhuman animals have had a role in Western Hemisphere scientific traditions dating back at least to the 4th century BCE (Maehle & Tröhler, 1990). An introduction to the complex history in which laboratory animal research is embedded is an important aspect of ethics education.

The Standard History The “standard history” of animal protectionism may be summarized as follows: We tend to think that the history of animal protection is simply about the relationship of humans to other animals, or that it is coupled to liberalism and other movements of liberation that trace Europe’s trajectory from feudalism to modernity. (Najafi & Kete, 2001) The standard history is a tale of an inexorable, coherent, liberal movement compelling constraints on callous scientists and other standard-bearers of patriarchy. It resonates with a passage in Animal Liberation (Singer, 1975): Western attitudes to animals have roots in two traditions: Judaism and Greek antiquity. These roots unite in Christianity, and it is through Christianity that they came to prevail in Europe. A more enlightened view of our relations with animals emerges only gradually, as thinkers begin to take positions that are relatively independent of the church. (p. 203) Singer (1975) coined the term speciesism to link animal activism to women’s liberation and the civil rights movement. Similarly, Rupke (1990a) argued: Today, no less than a century ago, vivisection is part of a mechanistic world view and of a scientocratic concept of

DOI: 10.1037/13272-020 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

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society; anti-vivisection, on the other hand, ties in to a more Romantic view of nature which emphasizes the relationship side of existence, giving high priority to conservation, environmental protection and such causes as alternative medicine. (p. 8)

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Problems With the Standard History The standard history seems consistent with certain 19th-century intellectual developments, the role of women in animal activism, and the general trend toward increasing research oversight. It fails, however, to capture the dynamic interplay between lab animal research and cultural context. That interplay is a thread in a fabric of discourse concerning other kinds of human—nonhuman relationships (animals as food, fiber, entertainment, sport, labor, symbol, companion), science and technology, class and gender, and sociopolitical and economic movements (Fudge, 2002; Kete, 2002). The standard history is unsettled by this complexity: ■

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The Industrial Revolution was dramatically affecting humans, domesticated animals, and wildlife. Infant mortality was 40% in London (Buer, 1968), and life expectancy was 35 to 40 years (Chesnais, 1992). Infectious disease was the leading cause of death, “germ theory” remained controversial, and treatments were largely nonexistent. Psychology did not exist as an academic discipline. Anatomy was established as a scientific field, but experimental physiology was just emerging. Anesthesia was generally unavailable. Such were science and society as live dissection (the original referent for vivisection) was being institutionalized. Diverse views on human–nonhuman relationships predated Bentham and Darwin. Many species had long been held responsible for their behavior (Dinzelbacher, 2002). Vivisection and debates about it were centuries old (Maehle & Tröhler, 1990). Darwin’s ideas were used to justify and to contest vivisection (Preece, 2003; Sideris, McCarthy, & Smith, 1999). Animal activism in Britain was not based on the rejection of Christianity. Thinkers from Martin

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Luther to John Wesley believed that nonhuman animals had souls (Preece, 2003), and the Royal Society for the Prevention of Cruelty to Animals functioned “exclusively on Christian principles” (Moss, 1961, as cited by Preece, 2003, p. 401). The idea that vivisection followed logically from a cold, materialist philosophy of science ignores humanitarian concerns that fueled the Enlightenment (Buer, 1968) and obscures the conflicting moral impulses felt by many scientists. Darwin (as cited by Preece, 2003), for instance, of killing one of his pigeons, wrote confessionally: “I have done the black deed and murdered an angelic little Fan-tail Pointer at 10 days old” (p. 411). Positions on vivisection served class interests (Kete, 2002; Rupke, 1990b; Tröhler & Maehle, 1990). Animal-activism societies were a means by which the bourgeoisie and aristocracy resisted challenges to their privilege by lower classes and scientists. Class bias manifested in campaigns to defend virtue over health (Dewsbury, 1990). As Guerrini (2008) observed, in the 1820s “despite radical rhetoric, animal protection was a profoundly conservative cause; it portrayed the present as threatened by an inhuman science and the increasingly intrusive working class” (p. 71). Animal activism was not strongly aligned with women’s progressivism. To the contrary, “the historical connections between organized antivivisection and the women’s movement in the late nineteenth century were a great deal more complex than some modern commentators have suggested” (Elston, 1990, p. 286). One division within the women’s movement concerned a form of difference feminism, which “spoke to conventional binaries—woman and nature, man and culture, feminine emotion and masculine reason—and, to an important degree, served a conservative purpose” (Kete, 2002, p. 29). Positions on (anti)vivisection served as an idiom for nationalism. British scientists supportive of vivisection feared losing ground to French experimental physiologists, while among British animal activists, restricting vivisection was held up as a sign of superiority to the French (Kete, 2002; Manuel, 1990).

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If snobbishness or rivalry in 19th-century Britain seems merely petty, its counterpart in 20th-century Germany was not (Tröhler & Maehle, 1990). Nazi law banned vivisection: “In the minds of German and Swiss anti-vivisectionists, it was Jewish doctors who practiced vivisection and ‘Jewish’ attitudes toward animals which allowed for it” (Kete, 2002, p. 29). Laws against vivisection, inhumane dispatch of lobsters, and damage to wolf and bear habitat were designed “to awaken and strengthen compassion as one of the highest moral values of the German people” (Giese & Kahler, 1944, as cited by Arluke & Sax, 1992, p. 8). Thus, Nazis’ rejection of a categorical distinction between humans and other animals did not foster egalitarianism. It was used to stratify “kinds” in a way that privileged Aryans (and pigs) and vilified Jews (and rats). In that time and place, with a receptive public and means to sway them, Nazis coopted for odious purposes ideas and rhetoric that in other times, places, or hands serve different ends. Animal activism in the United States arose from mid- to late 19th-century British models in a scientific and social context changed from earlier that century (Rollin, 2006). Dramatic impacts of antisepsis and immunization on health materially influenced the debate about the utility and humaneness of lab animal research. Similarly, growing access to anesthesia allowed mitigation of suffering associated with vivisection—raising challenging new questions about how it should be used or withheld for scientific and ethical reasons. Animal activism ebbed during World War I and revived afterward (Lederer, 1990). Change continued: World War II atrocities, the Public Health Service’s (PHS) infamous syphilis study in Tuskegee, Alabama, and startling research on obedience and conformity (Haney, Banks, & Zimbardo, 1973; Milgram, 1963) compelled intense scrutiny of research of all kinds. Science and debates about it were shaped by the postwar economic and baby boom, the space race, social movements, and new knowledge from human and nonhuman animal research. Change continued.

History Lessons These bits of history suggest a way of thinking about the ethical landscape in which lab animal research is situated that differs distinctly from the standard

history. On this view, key events signify inconstant interplay between pivotal events and individuals and recursive, mutable sociocultural processes (Hilgartner & Bosk, 1988). Developments that seem peculiarly relevant to lab animal research—the founding of the American Anti-Vivisectionist Society, passage of the Animal Welfare Act (AWA), behaviorism, Singer’s (1975) Animal Liberation, breakthroughs in pharmaco- and behavioral therapies—played out on a background of dialectical tension between the status quo and change. The 21st-century landscape is in some ways the same and in others different from 1,000, 100, or 10 years ago. Certainty’s appeal notwithstanding, few future outcomes are certain. This richer view of history is less tractable and more interesting than the standard history. Those who engage it will think more deeply and see themselves as active agents charged with responsibilities and gifted with opportunities in a narrative still being written. Three lessons in particular emerge from pondering lab animal ethics in historical context. Context matters. In the 19th century “animals served as proxies to talk about other issues, as they had for centuries” (Guerrini, 2008, p. 71)—and as they have since. The example of Nazi Germany is not a bizarre exception, nor does it show that the standard history is backward. Rather, it illustrates that “the history of Europeans’ relationships to animals can be placed within neither a progressive nor a conservative narrative of history. . . . What seems certain is the potential of thinking about animals to construct scripts of oppression as well as liberation” (Kete, 2002, pp. 20, 33). Accordingly, people thinking seriously about lab animal research ethics should resist conventional binaries, understanding that its history includes the efforts of scientists who both support lab animal research and care about lab animals. History shows that it is risky to infer from persons’ or groups’ attitudes toward lab animal research much else. Self in context. Students of history should lose the ability to regard their own moral sensibilities as detached from circumstance. They should develop a contextualized sense of self in relation to lab animal research by reflecting on their positionality, that is, how their real or perceived bases of privilege 425

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or disadvantage, family and peer groups, and life experiences may influence what they know and how they think about science, the environment, people, and nonhuman animals. An introduction to research on attitudes toward lab animal research may be helpful (Hagelin, Carlsson, & Hau, 2003). Many individual and sociodemographic correlates have been identified. Some predictors “hang together” in a way that may seem intuitive—such as more negative attitudes toward lab animal research and other nonhuman animal uses among women than men and among people who are more sensitive (e.g., Mathews & Herzog, 1997; Pifer, 1996). Others, however, do not (e.g., Noske, 2004; Vigorito, 1996; Wuensch, Jenkins, & Poteat, 2002). In short, the contemporary literature echoes the complexity of history. Exposure to history and the attitude literature should foster an intellectual, selfconscious posture consistent with ethics education. Psychology students can apply material from their coursework on survey methods, critical thinking, heuristics, the attitude–behavior relationship, and social influence. Enduring ethical themes. Among the themes that have persisted over time, the following five are key: Consequentialism versus deontology. Consequentialist reasoning focuses on actions’ consequences (e.g., utilitarianism—the ethical action is best for the largest number) and deontology focuses on whether actions are consistent with a moral duty (e.g., to respect fundamental rights). (See Mason, 2009, for a summary.) The prevailing cost–risk:benefit approach to evaluation of research is basically consequentialist, but consequentialism is not inherently consistent or inconsistent with lab animal research. Singer (1975), regarded as a standard bearer for “animal liberation,” took a utilitarian perspective, not a rights perspective. Anthropocentrism versus theriocentrism. Anthropocentric orientations place a moral premium on human welfare. Other species’ welfare may be valued but less so. Theriocentric orientations value nonhuman animals in their own right. Positions on lab animal research cannot be directly inferred from these orientations. For instance, many early British antivivisectionists were anthropocentric, 426

criticizing vivisection for coarsening human civilization or violating aesthetic sensibilities. These orientations are not irreconcilable. Heffner (1999), for example, characterized lab animal husbandry as an example of symbiosis, a mutually beneficial relationship that benefits humans without privileging them over the other species. Animal welfare and animal rights. All responsible people believe that lab animals deserve humane consideration. The reasoning behind that consideration varies. By one conventional distinction, an animal welfare perspective charges humans with looking after other animals humanely, whereas an animal rights perspective imbues other animals with rights that humans have a duty to respect. This distinction often is linked to opposing positions on lab animal research: Supporters hold researchers responsible for the animals’ welfare and opponents believe that lab animal research violates the animals’ rights. This dichotomy is flawed. For instance, Singer’s (1975) utilitarian approach emphasizes welfare, not rights; he, however, has argued that lab animals should not be treated in ways that most humans would not be treated simply because they are not human, a position incompatible with much lab animal research. A different argument was made by Regan (1983, as cited by Russow, 1999), who claimed that any animal who is a “subject of a life” has inalienable rights that lab animal research abridges. However, as Russow (1999) noted, affording lab animals rights does not necessarily confer total protection or equal treatment; given the complex implications of welfare and rights claims, she has cautioned against interpretation of the two terms in a polarizing manner. The continuity paradox. The validity of lab animal research as a means of enhancing human welfare depends on some kind continuity among the species. Some lab animal research opponents have argued that humans are so different from other animals that generalizing between them is a “species error” (Lederer, 1990, p. 241). Conversely, continuity in an elemental level of consciousness (sentience) is the basis of claims that at least some lab animal research is inhumane. Thus, a potential paradox arises: If humans and lab animals are similar enough to generalize between them, aren’t they too similar

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for lab animal research to be humane? This version of the paradox appears to bolster claims that the research is unethical. But consider another version: If humans and other animals are so different that the research is invalid, aren’t they also too dissimilar for us to presume anything about lab animals’ subjective experience? This paradox is, fortunately, more apparent than real. Any position that depends on humans being the same as or different from other species oversimplifies species continuities and diversities. Also, a premise of species–error argument is that research is, ultimately, about humans. Some lab animal research is comparative, and similarity to humans either is interrogated or is irrelevant. Moreover, research can concern basic principles and knowledge, independently of ultimate applications. Consideration of the continuity paradox can prompt examination of the coherence of ethical positions on lab animal research and the commensurability of experience among individuals and species. Ultimately, though, neither version of the paradox provides a sound foundation for an ethical position on lab animal research. Tu quoque arguments. The continuity paradox may appeal because identifying inconsistency in others’ position might seem to make the case against it. Variations on this kind of critique have long peppered discussions of lab animal research (Maehle & Tröhler, 1990). For instance, supporters of the research may criticize an animal activist for eating meat or for worrying about lab animals when so many dogs, cows, or other animals outside of labs suffer more. Critics of lab animal research may respond in kind. Such a critique is called a tu quoque argument. Showing that someone else is illogical, however, does not compellingly debunk any particular position she or he holds. Being hypocritical—acting inconsistently with an expressed position—does not mean that the position is invalid. Thus, tu quoque arguments are more about people (ad hominem) than positions. Notwithstanding that hypocrisy can undermine the hypocrite’s moral authority or speak to the infeasibility of her or his position (Aiken, 2007), tu quoque arguments are less compelling and often less civil than are alternative discourses.

THE CONTEMPORARY LANDSCAPE The world has changed dramatically in the 200 years since European animal activists protested experimentation on horses and dogs without anesthesia. Lab animal research has changed. Anesthesia and analgesia are available and cheap and their use is standard practice. Lab animal research has been institutionalized in diverse academic departments, government agencies, and the private sector. It has expanded across levels of organization from subcellular to social. Although the entire enterprise remains a referent for the term (anti)vivisection, much research is non- or minimally invasive, especially in psychology. The relevance of psychological research with lab animals has grown as interest in evolution and neuroscience has exploded and as chronic conditions from cardiovascular disease to depression have supplanted infectious diseases as the leading causes of human death and disability worldwide. Vastly more lab animal research is done, in more countries. Recent estimates (Fifth Report, 2005; Taylor, Gordon, Langley, & Higgins, 2008) put the total number of live nonhuman vertebrates used at 58 to 115 million, with about 17 million in the United States and 11 to 12 million each in Japan and the European Union. More mice and rats (85%–90%) are used than other rodents, birds, fishes, or reptiles; larger mammals (e.g., nonhuman primates, dogs, rabbits, cats, marine mammals) each account for less than 1%. Many more invertebrates (e.g., nematodes, insects, mollusks) than vertebrates are used.

Codified Protections for Lab Animals in the United States Discussions involving the scientific community, government, organizations, and the public have yielded myriad formal protections of vertebrate lab animals (Garnett, 2005). A basic grasp of differences among them is an important part of understanding the research enterprise. Laws are legislation passed by federal, state, or local officials. An example is the federal AWA (see Adams & Larson, 2007). Regulations are a government agency’s interpretation of laws, that is, rules used to implement oversight responsibilities. For example, the U.S. Department 427

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of Agriculture (USDA) has regulations through which it enforces the AWA. Policies are the official positions of a government agency or other organization. Policies range from a general statement of the organization’s mission to specific, binding rules. For example, the federal Health Research Extension Act of 1985 (P.L. 99-158) is the statutory mandate that authorizes the PHS Policy on Humane Care and Use of Laboratory Animals (Policy). The policy applies to all PHS-conducted or -supported activities involving live nonhuman vertebrate animals in the United States, the Commonwealth of Puerto Rico, or any territory or possession of the United States. No covered activity may take place until the institution conducting the activity has provided a written Animal Welfare Assurance acceptable to the PHS, setting forth compliance with the PHS Policy. Whereas PHS Policy was mandated by law, the American Psychological Association’s (APA) support for humane lab animal research became policy by resolution of its Council of Representatives (1990, 2007). It represents the organization’s official position and has implications for APA’s structure and function. Standards are specific requirements for the care and use of lab animals. For example, the Association for the Assessment and Accreditation of Laboratory Animals Care (AAALAC) International is a private accreditation organization that has standards an institution must meet to maintain its accreditation status. Some agencies (e.g., Department of Defense, American Heart Association) require AAALAC accreditation as a condition of funding. Guidelines are recommendations for the care and use of lab animals issued by scientific organizations and interest groups. Guidelines tend to be less specific than standards, with professionals at an institution charged with interpreting them appropriately. Guidelines can be adopted as a basis of regulations, policies, or standards. For example, PHS policy and AAALAC International standards are based on the National Research Council’s Guide for the Care and Use of Laboratory Animals (the Guide; Committee for the Update of the Guide for the Care and Use of Laboratory Animals, 2011). However, AAALAC accreditation standards specify care and use protocols in more detail than does the Guide. 428

Ethics codes articulate ethical responsibilities of researchers as mandated by professional organizations. For example, the Ethical Principles for Psychologists and Code of Conduct (the Ethics Code; APA, 2010) includes a section on Humane Care and Use of Animals in Research (Section 8.09). The Ethics Code includes statements of philosophy and five general principles as well as specific, enforceable standards. APA members agree to adhere to the code as a condition of membership.

Taking in the Oversight Landscape This array of oversight mechanisms can be daunting. For their part, government agencies work toward “harmonization”—that is, to avoid conflicts and to reduce regulatory burden that does not enhance lab animal welfare. For example, agencies such as USDA, PHS, and the Food and Drug Administration have memoranda of understanding, acknowledging that they “share a common concern for the care and use of laboratory animals” while noting that “there are necessary operational differences among the animal welfare programs of the cooperating agencies” (Office of Laboratory Animal Welfare [OLAW], 2006). The agencies thus collaborate without homogenizing oversight in a way that precludes agency-specific regulations (e.g., the Department of Defense’s prohibition of the wounding of nonhuman primates, dogs, cats, or marine mammals for weapons research or medical training). This coordination and downstream effects, including PHS’s emphasis on institutional accountability and an effective Institutional Animal Care and Use Committee (IACUC), help researchers stay abreast of rules and recommended practices that apply to their work. Legal liabilities, fines, and federal funding are not researchers’ only tangible incentives for oversight compliance. Many institutions that are not subject to federal regulations have established an IACUC as a practical way of maintaining high-quality lab animal programs. Increasingly, the ability to publish in peer-reviewed journals and intramural funding requires oversight compliance. According to the National Academy of Sciences’ Institute for Laboratory Animal Research (ILAR), it is reasonable to estimate that 90% or more of the research animals in the

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United States are cared for and used in programs that apply the standards of the Guide. This percentage is likely higher for laboratory mice and rats. (2004, p. 18) Learning about the practical realities of conducting lab animal research enables critical evaluation of such claims as “approximately 95% of the animals used for research aren’t afforded even the minimal protections of the Animal Welfare Act” (Humane Society of the United States [HSUS], n.d.-a). Well-informed people will be able to distinguish what is factually accurate (more than 90% of lab animals are rodents that are excluded from USDA enforcement of the AWA) from what is debatable (AWA protections are “minimal”) or potentially misleading (the implication that federal protection is synonymous with AWA coverage). They can spot the error if told, for instance, that an aspect of care for their C57BL/6 mice is required by the AWA; that aspect might be necessary for compliance with institutional policy and might even enhance the animals’ welfare—but the AWA has nothing to do with it. This kind of shared language and understanding facilitates meaningful discussions about the nature, effectiveness, and legitimacy of oversight and its relationship to individuals’ ethical responsibilities. BEYOND COMPLIANCE: ETHICAL DECISION MAKING At its best, oversight improves lab animal research. Prudent leadership in agencies, IACUCs, departments, and labs creates a coeducational climate from which good science, practices that promote animal welfare, and protections for personnel emerge. Researchers do well to foster such a climate by engaging constructively with USDA, OLAW, and their IACUC. In so doing, rather than merely being subject to oversight, researchers participate in shaping effective, efficient policies and practices. They also model responsible research for collaborators and students and enjoy indemnification and other forms of community support. Researchers also do well to guard against a possible unintended consequence of oversight—letting

oversight compliance overshadow ethical decision making. Rule following can fall short as a guide to day-to-day ethical conduct. Consider, for instance, a scenario: A monkey caretaker leaves a housing area and removes her personal protective equipment. Through a window she sees that a knife used to cut fruit was left within a monkey’s reach. A monkey is reaching for it. She has time to retrieve the knife and prevent serious harm to one or more monkeys—if she does not gown up. Policy requires her to protect monkeys from imminent danger. It also prohibits her from entering without gowning up. It does not specify which rule trumps the other. What should she do? At such a moment, behavior could be governed by impulse, anxiety, or indecision. Alternatively, it could be guided by quick, principled decision making. The latter does not require the person to be a moral philosopher, any more than other professionals with weighty responsibilities—physicians, pilots, child care providers, and so on—have to be philosophers to behave ethically. Instruction in oversight obligations, however, will not suffice. Oversight can enhance the quality of lab animal care and use, and it is informed by values. It does not in itself, however, prepare researchers to make ethical decisions, and it does not prepare anyone to develop an informed ethical position on lab animal research. Ethical decision making and position taking require practical ethics education. Many people are familiar with the idea that what is legal is not necessarily ethical, that laws can be just or unjust. Elaboration on that idea yields basic distinctions between morality, ethics, justice, and laws (Ray, 1996). Whereas morality involves first-order beliefs about good and evil, ethics involves second-order reflective deliberation of moral matters. Ethics adds to judgment of an action’s rectitude an explanation, or moral theory, of why the action is right or wrong. As Hinman (2002) explained, morality is to music as ethics is to musicology. Justice specifically concerns whether an action advances fairness. Finally, morality, ethics, and justice can be distinguished from law. Although laws, regulations, and such symbolize the values of a moral community, they are a means of aversively motivating individuals’ actions and thus are fundamentally coercive. By definition, delivering lists of 429

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dos and don’ts, exhortations, and threats does not constitute an ethics education. McCarthy (1999) noted, “There is at present no widely accepted, comprehensive moral theory pertaining to research involving laboratory animals.” A more coherent framework prevails for human research (per the Belmont Report; National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1979), which likely will remain the case given the more diverse nature of research with nonhuman animals. An achievable goal may be ethics education that provides people with “a basis for creating, embracing, or enriching the moral framework that governs their attitudes and behavior toward laboratory animals” (McCarthy, 1999). Fostering inquirers’ identity as moral agents whose decision making is mindful and open to change may not make up a comprehensive moral theory, but it does include a feasible metaethic.

The Ethics Cascade Lab animal research is not an ethical issue. It is a complex enterprise to which many ethical issues apply. Dess and Foltin (2005) outlined an ethics cascade composed of questions that progress from general—who has moral authority—to specific— whether a particular procedure with a particular species is ethical. Using such an approach will encourage consideration of broad contextual values (what should be studied, when, by whom) as well as narrower constitutive values (what methods are best, what protections are appropriate, etc.) relevant to lab animal research (see Rooney, 1992). In the cascade, the omnibus question of whether lab animal research is an ethical enterprise is considered about midway, in more or less the same context as the question of whether research with human participants is an ethical enterprise. Although research with humans and nonhuman animals are not the same issue, both ought to be regarded as scientific endeavor taking place in larger contexts in which such issues as who has power and agency, what questions matter and to whom, and so on should be pondered before broaching a distinction between the populations involved or specific methodologies.

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Some people have an abolitionist posture toward lab animal research, but surveys of the public, students, and psychologists show that most people distinguish different levels in the cascade when given the opportunity to do so (Hagelin et al., 2003). Normative nuance accounts in part for their finding that surveys including various versions of a yes or no question about support for lab animal research yielded a range of 27% to 100% for “yes” responses and a range of 0% to 68% “no” responses. The cascade can help people locate their own views with some specificity and identify bases of agreement and disagreement with others (Saucier & Cain, 2006). Such discussions also present instructional opportunities to psychology teachers and research mentors. If students support lab animal research because they tend toward facile generalization across species or do not believe lab animals experience pain, such reasoning can be corrected (see the section Pain and Stress later in this chapter). If students oppose it because they believe that it is mostly replication or has not played a significant role in psychology, such reasoning can be corrected (Compton, Dietrich, & Smith, 1995; Domjan & Purdy, 1995).

Framing Matters Ethics lessons get off to a bad start if strong framing effects occur. Negative framing of lab animal research is common. Sometimes it transparently attempts to persuade. A 2003 People for the Ethical Treatment of Animals survey, for instance, queried, Before reading this mailing, were you aware of the vast numbers of animals who suffer and perish every year in American research laboratories? Did you realize that the vast majority of painful animal experimentation has no relation at all to human survival or the elimination of disease? Yet lessons by well-meaning people can have a similar effect. An example is labeling lab animal ethics as “a controversy” (Herzog, 2005; Richmond, Engelmann, & Krupka, 1990). Human research can carry serious risks, and many aspects are controversial, yet its

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ethics are not introduced as “the human research controversy.” Such framing compromises full and fair consideration of the ethical issues. Similarly, introducing lab animal research as a “debate” implies that it is a unitary issue with discrete, mutually exclusive sides. In McGraw-Hill’s Taking Sides series, complex issues are “thoughtfully framed” as a debate to “stimulate student interest and develop critical thinking skills.” In two 2007 volumes, sections appear with the titles “Should Animal Research in Psychology Be Eliminated?” (McGraw-Hill Higher Education, 2007b) and “Should Animal Experimentation Be Permitted?” (McGraw-Hill Higher Education, 2007a), each with “Yes” and “No” essays. Disclaimers that the issue is complex may do little to countermand the categorical thinking primed by binary organization; that this approach endorses “taking sides” and normalizes conflict as a discursive mode (“clashing views”) is too plain. It is a disservice to psychology for research to be presented as a moral minefield, for side-choosing or opting out to seem so attractive as to foreclose deep thinking. An alternative, affirmative, balanced pedagogy involves scaffolding ethical issues from the general to the particular (see the section The Ethics Cascade; also see O’Donnell, Francis, & Mahurin, 2008). It encourages inquirers to engage the issues seriously and to embrace the responsibilities that come with being a serious scholar. They should ponder not only potential pitfalls and debates but also the shared positive values and moral aspirations of those who do lab animal research and the possible costs of not doing the research, which might be less salient (Hearst, 1991) but no less important than costs of doing the research.

Rubrics for Ethical Decision Making Ethical decision making involves consideration of values, stakeholders, development of alternative courses of action, evaluation of the “pros” and “cons” of possible actions, consulting others, and reflecting on decisions in their aftermath. (More information on these topics and the ethical theories that inform the decision-making process can be found in Volume 1, Chapters 1 and 4, this handbook.) A few issues that

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Determining stakeholders presents an opportunity to discuss who potentially benefits from the research: Which species? Only humans? Only some humans? Developing alternative courses of action presents an opportunity to discuss the option of doing nothing (is that ethically “neutral”?), alternatives to live animal research (in vitro methods, simulations, disenfranchised humans), sample size, and power. Consulting others presents an opportunity to talk about responsibilities that researchers have regarding oversight and also about IACUC, OLAW, and other valuable resources. It also provides a context for discussing the reach of personal ethics: If a person judges an action to be unethical, should she or he insist that everyone refrain from it? Postdecisional reflection presents an opportunity to teach that ethical decision making should be iterative and ongoing. One can make a sound ethical decision that should be revised going forward, for instance, because of new knowledge about the species under study.

The prevailing model for ethical review of psychological research—weighing cost–risks against benefits—conforms to consequentialism. However, consideration of consequences as a step in a decision-making rubric can include whether a course of action would be consistent with the actor’s dearest values or moral theory. Teachers and mentors can use that step to provide a primer on moral theory, to revisit and critically discuss the conventional cost– risk:benefit approach in that light, and to connect the “pros” and “cons” of lab animal research to models of human–nonhuman relationships. Normalizing the 3 Rs. An important advantage of using a domain-general rubric for ethical decision making about lab animal research is that it helps to reframe the “3 Rs” of refinement (minimal invasiveness–aversiveness), reduction (minimizing the number of animals used), and replacement

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(using alternatives to live animal methods; Animal Welfare Information Center, n.d.). Being minimally impactful, collecting data from as many individuals as suffices, and involving live creatures only when necessary are principles that should constrain all research. The history of the development of the 3 Rs links them to lab animal research, an unfortunate association that carries with it a “necessary evil” implication. The teaching community would do well to socialize the 3 Rs as part of basic research ethics. SPECIAL TOPICS IN LABORATORY ANIMAL CARE AND USE

Pain and Stress According to the principle of refinement, the pain or stress experienced by lab animals should be kept to a minimum. Refined methods alleviate or minimize pain, stress, or other adverse effects or enhance wellbeing (Balls, 1994; Russell & Burch, 1959). Refinement can be applied in all aspects of a procedure, including the source, transport, husbandry, and environment of the animals; experimental design; techniques applied; care of the animals before, during, and after a procedure; endpoints of the procedure; and method of euthanasia (American Veterinary Medical Association, 2007; ILAR, 2009). Obviously, using fewer animals and replacing them when a good alternative exists also reduce pain and stress. It is easier to embrace refinement as a principle than it is to define specific objectives that are ethically and scientifically sound. We must first identify what level of pain or stress is “minimal” and how much pain or stress is acceptable. Some argue for complete elimination of pain and stress. HSUS, for instance, has set a goal of doing so by the year 2020, as prelude to “eliminating the use of animals in laboratories altogether” (HSUS, n.d.-b). They have described pain and distress as “unwanted” factors that “will always confound scientific data and ultimately translate into poorer human welfare.” This assertion is at odds with the ethically thorny fact that in some domains of psychological research, pain and stress are not incidental or “confounding”: In many procedures identified in the HSUS white paper, pain or stress are intentionally induced and experimentally controlled or measured, either because 432

the focus of the research is pain or stress (e.g., models of anxiety, depression, stress, chronic pain) or because perturbation is critical to observation of the phenomenon under study (e.g., drug addiction and withdrawal, restricted access to food or water). HSUS’s main point seems to be that lab animals’ pain or stress is bad ethically and scientifically. Most people would agree that unnecessary suffering is bad. Not all would agree, however, that eliminating lab animals’ pain and stress is categorically more important than everything else at stake. Nor would all agree that all pain and stress constitute suffering (Timberlake, 1991), or that all pain and stress—in humans or other animals—is equally bad in the short and long term. The challenge is to place the pain and stress that lab animals may experience in a context that leads to ethically sound action. From anything but an inviolable-rights perspective, the goal of eliminating all pain and stress may be questioned on grounds that life is less than idyllic outside of the laboratory. What kinds and degrees of aversive events outside of the lab can and should be reproduced inside the lab? Human and nonhuman animals experience pain and stress in their natural environments and show adaptive resilience (McEwen, 1998). For example, the caloric restriction commonly used in operant conditioning and other paradigms models the usual state of affairs for wild pigeons (Poling, Nickel, & Alling, 1990) and slows aging in rodents and primates (Anderson, Shanmuganayagam, & Weindruch, 2009). Even human research participants may be allowed to experience pain or stress; in ethical reviews, such risks are evaluated against what is typical in daily life, not against a baseline of zero. Instead of suggesting an absolute level of pain or stress that is unacceptable for all research, it may be better to define acceptable levels on the basis of the scientific aspects of a particular project, to ask the question, “Is the level of pain or stress that the animal may experience unnecessary given the scientific objectives and merit of the project?” Making ethical decisions on a case-by-case basis will allow for better treatment of lab animals. For example, prevention or alleviation of pain associated with surgical or other procedures is a necessary part of humane lab animal care in most studies. But what

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if the scientific objective of a particular experiment is to evaluate the efficacy of new analgesics? In vitro studies of the drug may indicate analgesic potential, but until the analgesic is administered and the response of the animal is examined, analgesic efficacy will remain unclear. If we follow a rule-making orientation, then this experiment would not be allowed because the animals involved will experience pain if the analgesic is ineffective. However, we could decide that the risk that some animals will experience pain is acceptable given that (a) we can predict that the analgesic will be effective on the basis of our in vitro studies, and (b) if the analgesic is effective, it could be a better analgesic than those currently used to relieve pain in humans and other animals. Unrelieved pain can lead to levels of stress in animals that can alter neurochemistry, neuroanatomy, and behavior, and when the pain is incidental to scientific objectives, these effects can have undesirable and unacceptable effects on experimental results. Therefore, it is often the case that both ethics and scientific methodology require that pain is minimized, relieved, and controlled (ILAR, 2009). Appropriate analgesics and anesthetics can be selected on the basis of several factors: species and age of animal, type and degree of pain, potential effects of particular agents on specific organ systems, the length of the operative procedure, and the safety of an agent for an animal. Furthermore, the analgesics and anesthetics used for a particular protocol should complement the scientific aspects of the research protocol. For example, if the goal of a project is to study postsurgical feeding, an analgesic that affects feeding is a poor choice. It may be acceptable to use that particular analgesic, however, in another project in which the goal is to examine behaviors other than feeding. Researchers should not assume that procedures that cause pain in humans will cause similar amounts of pain in lab animals and vice versa. This assumption could lead to a reduction in the welfare of the animal (Allen, Fuchs, Shriver, & Wilson, 2005; Flecknell, 1994). Defining pain from a human perspective ignores the unique sensory, perceptual, and expressive systems of various species. For example, in research, the use of atraumatic, minimally invasive procedures are advocated. But when given a

choice between two procedures, one that involves a more invasive technique carried out under anesthesia and a second that appears less invasive but requires restraint of an animal, which procedure would result in less stress may be unclear. The first procedure is physically more invasive and may produce pain via tissue damage; however, the second procedure involves restraint, which is a known stressor to many lab animals. This example illustrates that researchers and IACUC members need to carefully evaluate procedures and protocols to find species-specific ways to minimize pain and stress. A second caution against an anthropomorphic view of pain is overmedication of lab animals. Choice and dose of analgesic should be determined on the basis of the degree of pain that actually is present. If an analgesic is inappropriately used, the animal may experience undesirable side effects that may outweigh any potential beneficial effects. For example, in rats, some effects of surgical procedures may be suppressed food and water intake and weight loss. These effects also can be seen in unoperated rats after administration of opioid analgesics (Liles & Flecknell, 1992). This highlights the importance of using a critical approach to accurately assess the amount of pain relief necessary for an animal.

Training for Laboratory Animal Researchers Animal welfare regulations require that people involved in lab animal research have appropriate training to do so, and institutions are required to provide training to those involved in research to ensure the humane care and use of lab animals. Although veterinarians and veterinary technicians receive formal classroom education regarding the care of lab animals, psychologists tend to receive such training both in the classroom and on the job. Most experimental psychologists will have some classroom exposure to ethical decision making and the three Rs, sound experimental design, and common lab animal models during their graduate and postdoctoral training. On-the-job training continues during graduate and postgraduate years, with specific attention to the techniques and experimental strategies used in the individual’s field of interest. 433

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Agencies that fund lab animal research (such as the National Institutes of Health [NIH]) often require that trainees be provided with adequate training in research ethics. An important area of training is pain recognition and management. Personnel coming into contact with lab animals need to understand species-specific responses to pain and to recognize the clinical manifestations of pain (ILAR, 2009). For example, indicators of pain in lab animals may be vocalizations, abnormal posture or appearance, and changes in behavior (e.g., decreased food intake, lethargy). Familiarity with the animals’ behavioral repertoire and the analgesics and dosing to be used in each research protocol will allow members of the research team to treat pain if and when they encounter it. Furthermore, extensive training of all surgical procedures that a researcher may use is crucial, as the expertise of the surgeon will affect the degree of pain and stress caused by a particular procedure. In addition to specific regulatory guidelines and surgical procedures, those who work with lab animals must learn the delicate emotional balance that the responsibility of research carries. That is, researchers must be concerned about the well-being of the lab animals, and they must remain vigilant and sensitive to the animals’ status, even if they have to experience some unpleasant emotions to do so. Yet they must emotionally disconnect themselves from the research enough to make sound, evidencebased decisions for the animals. For example, as mentioned in the section Pain and Stress earlier in this chapter, an anthropomorphic view of pain could negatively affect research animals. Similarly, researchers must be careful not to project their own emotions onto lab animals to make good decisions about the animals’ health or well-being. Emotionally disconnecting may be particularly difficult when determining humane endpoints. Although lab animals are valued, living longer is not always best. It is appropriate for laboratory personnel to feel sad when an animal dies; it is not appropriate to keep an animal alive to spare personnel some upset. Euthanasia means “good death,” and researchers need to be able to identify when killing an animal is more humane than keeping it alive. Identifying humane endpoints at the onset of an experiment and following an approved protocol for the timing and method 434

of euthanasia is good practice. Readers will find it helpful to discuss research- and euthanasia-related emotions, remembering that it is important to care for lab animals while basing treatment recommendations on objective measures.

Laboratory Animal Housing and Care Providing laboratory animals with an environment that supports growth, health, and well-being is ethically responsible and minimizes variations that can affect research results (ILAR, 2004). Laboratory housing should allow species-specific behaviors while minimizing stress-induced behaviors. The microenvironment (i.e., cage), the macroenvironment (i.e., room in which animals are housed), and animal husbandry (i.e., daily care, cleaning, and feeding) should be considered when striving to maintain the well-being of lab animals. The microenvironment includes the aspects of the laboratory that the animal directly contacts, including cage size and materials, feed, bedding, water, and environmental enrichment. The cage environment will vary considerably because of size and speciesspecific behaviors. However, comfort and adequate sanitation are driving factors in all cage design, and standards of housing and care have improved since the mid-20th century (Gonder & Laber, 2008; Hessler, 1999). Determining what constitutes an improvement is not always intuitive, and changes in practices should be made on the basis of knowledge about the species and evidence on alternative practices. Rodent housing provides an example of how oversight guidelines, evidence that they enhance animal welfare, and animal welfare are not always strongly aligned. For decades, most rodents were housed in cages with wire floors to allow urine and feces to pass through to a tray underneath, enhancing sanitation. Recently, there has been a shift to cages with solid bottoms covered with bedding to absorb urine and feces. A major factor in this shift was a recommendation in an earlier edition of the Guide citing rodents’ preference for solid-bottom caging. Indeed, evidence for a preference exists: When resting, rats and mice prefer a solid-bottom cage (Blom, VanTintelen, VanVorstenbosch, Baumans, & Beynen, 1996; Manser, Morris, & Broom, 1995). However, the preference is weak or nonexistent

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when the animals are active and depends on the type of bedding; also, other behaviors and weight gain do not differ between the two conditions. What animals prefer may not always be what is best for them, especially when other measures of welfare do not distinguish the conditions. Furthermore, the three studies cited in the 1996 Guide examined changes in rodents’ hind feet, not preference. One reported more changes when guinea pigs were housed in wire cages (Fullerton & Gilliatt, 1967). But in another, all the rats were housed in wire cages (Ortman, Sahenk, & Mendell, 1983), and in the third, rats housed in wire versus solid-bottom caging did not differ, leading the authors to infer that the changes were age or weight related (Grover-Johnson & Spencer, 1981). Our point here is not that researchers should refuse to use solid-bottom cages or otherwise ignore the Guide. For one thing, if their institution is AAALAC-accredited or has a PHS Assurance, doing so is not their unilateral prerogative. For another, even if the evidence cited in the Guide does not support the recommendation, evidence consistent with the recommendation exists. Rather, our point is that ethical care of lab animals requires more than simply following or rejecting recommendations and rules. It is a virtue of the Guide that IACUCs have discretion in determining best practices for a particular kind of animal and scientific application. Researchers should be aware of applicable recommendations and rules and actively engage in determining their application on the ground, bringing to bear their expertise, that of colleagues, and data when possible. If a nonnegotiable standard or rule does not seem in animals’ best interests or takes more resources than benefits to animals’ welfare warrants, then short-term compliance should be coupled with individual or organized efforts at modifying the standard or rule. Here, again, we must be careful not to anthropomorphize but instead to thoughtfully consider and study alternative ways of caring for lab animals and, as much as possible, to base regulations and guidelines on evidence of the benefit to the animal. In addition to providing a safe and nonstressful environment, researchers are encouraged to provide an environment that enhances animals’ psychological well-being. Enrichment can be in the form of

contact with social cohorts, housing that allows animals to exhibit species-specific behaviors, or the presence of other toys and activities that allow animals to manipulate their environment. Environmental enrichment promotes learning and alters brain structure and neurochemistry (Stairs & Bardo, 2009). It is recommended that social animals be housed in pairs or groups when such housing will not pose a risk to the animals or conflict with the scientific protocol. Rats and mice are highly social animals, and when housed alone, they show more physiological signs of stress than those that are group housed (Balcombe, 2006). However, in mice at least, pseudoisolation (caging that allows nonphysical contact) mitigates many of isolation’s effects (Pietropaulo, Feldon, & Yee, 2008). Nonhuman primates are social animals that form dominance hierarchies, and social isolation has been shown to have deleterious effects (see review by Cacioppo & Hawkley, 2009). Social subordination in these groups is stressful, and subordinate monkeys show greater risk for obesity and heart problems, as well as different neurochemistry than dominant monkeys (Morgan et al., 2002; Shively, Register, & Clarkson, 2009). Although group housing may be advantageous to dominant animals, it may be stressful for animals lower on the hierarchy. Another issue is how much and what types of enrichment will enhance the experience of lab animals. This is another issue in which an anthropomorphic view may negatively affect the animals’ treatment. Rats and monkeys are sensitive to environmental complexity, such as the availability of toys and other novel objects, and these appear to enhance animal well-being (Balcombe, 2006; Washburn, Harper, & Rumbaugh, 1994). Game-like computer tasks have been developed to examine cognition in monkeys, and they can be used for enrichment purposes as well, despite the fact that they do not mimic things that monkeys would encounter in the wild (Washburn, 2003). Perhaps counterintuitively, monkeys will spend a substantial portion of their day playing these games and will engage in the video games even when other activities or peers are available. Furthermore, the presence of the video games reduces stress- or boredomrelated behaviors to a greater extent than toys or 435

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social opportunities. Creative solutions, such as allowing access to video games, may dramatically improve the lab animal’s experience, even if animals would not have such contact in the wild. Hypothesisdriven objective examinations of the amount and types of enrichment that are beneficial will continue to be important for promoting laboratory animal welfare. CONCLUSION Ethics involves thinking through the moral dimensions of actions. Most lab animal researchers are vested with oversight compliance responsibilities, and fulfilling those responsibilities has moral value. We have argued, however, that the ethical conduct of lab animal research is not synonymous with oversight compliance or with actions taken on the basis of unexamined instincts about what is nice versus what is unpleasant. Inquirers should learn about the distinctions among these bases of judgment. They then can engage the process of ethical decision making with confidence, critical thought, and an appropriate measure of trepidation. This chapter hopefully will be helpful to students and their mentors who engage that process. For lab animal researchers, redoubling efforts at ethics education will take time and courage. Time, often in short supply, must be found. On the positive side, the effort is timely. For reasons ranging from devastating financial scandals and student plagiarism to high-profile research misconduct cases and huge new societal challenges related to bioethics, ethics are in the news. Oversight on ethics education is growing, too. Effective January 2010, the National Science Foundation (NSF) increased requirements for research ethics training for all grant beneficiaries. A silver lining to these trends is that they have opened a window to funding opportunities. Several federal agencies (e.g., NIH, NSF, Department of Energy, Office of Research Integrity) make funding available for research ethics education. Examples include NIH’s Short-Term Courses in Research Ethics (T15) program and enhancements to NSF Research Experiences for Undergraduates grants. College and university administrators also may make funds available to faculty with good 436

proposals for enhancing ethics education in undergraduate, graduate, and postdoctoral curricula and research programs through course development, sabbaticals, brown bag seminars, or other activities. Courage must be mustered to promote open discussion of ethics in an era in which animal extremists have destroyed laboratories and harassed and threatened researchers and their families. Enhanced protections—for instance, the Animal Enterprise Terrorism Act of 2006—and the knowledge that violent extremists are few offer a measure of comfort. Yet, researchers may hesitate to increase their visibility on these issues when the climate makes it acceptable for a critic to testify before the U.S. Senate that murdering researchers to save lab animals is morally justifiable, defending the chilling statement, “I don’t think you’d have to kill, assassinate too many. I think for five lives, ten lives, fifteen human lives, we could save a million, two million, or ten million non-human lives” (J. Vlasak, before the U.S. Senate Committee on Environment and Public Works, 2005). Resolve to overcome that reasonable reluctance can flow from commitments to maintaining high ethical standards in the laboratory, to increasing students’ sophistication in thinking about the issues, and to cultivating public confidence in the enterprise. Our focus in this chapter has been on lab animal research in the United States and its European antecedents. As with so much in the 21st century, science is increasingly internationalized. According to the National Academies, by 2002, one third of all graduate students and about half of all postdoctoral scholars in science and engineering were born abroad (Committee on Science, Engineering, and Public Policy, 2005). Thanks in part to advances in technology and global economic development, U.S.-born scholars increasingly study abroad or have collaborators overseas. How research globalization will shape ethical sensibilities and oversight remains to be seen. Will one worldview come to dominate? Will cultural differences in relationships between humans and other animals and other values lead to transnational negotiation of a comprehensive moral theory? Will the moral pluralism that exists now in the United States continue to prevail? Students can participate in that unfolding drama.

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We, the authors of this chapter, are not agnostic about lab animal research. We do it. And we do it, not because we have not thought deeply about ethical issues but because we have. We identify with it as a fundamentally moral enterprise. We view knowledge, including that which comes from lab animal research, as vital to the well-being of humans and other animals. We cannot ignore the moral cost of campaigns to abolish lab animal research, especially in light of what research has revealed about the limits of reductionism and the need for integrative study across levels of analysis (cf. genetic determinism versus probabilistic epigenesis). Psychology’s role has never been more important. We feel the weight of our responsibility to our lab animals and to peers, students, society, and other stakeholders. Pretending neutrality would be naïve. We sought to bring our perspective to this chapter without oversimplifying the issues any more than necessary given space constraints. Of others, whatever their views, we would expect no less. Surely thoughtful, informed engagement by a diverse moral community is the soundest way to do well by humans and the animals with which we share the planet.

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Index

Volume numbers are printed in boldface type, followed by a colon and the relevant page numbers.

AAALAC (Association for the Assessment and Accreditation of Laboratory Animals Care) International, 2: 428 AAC&U (Association of American Colleges and Universities), 2: 232 AAP (Association for the Advancement of Psychology), 1: 88 AAUP (American Association of University Professors), 2: 232 Abbott, D. W., 2: 281–282 ABFP (American Board of Forensic Psychology), 2: 98 ABPP (American Board of Professional Psychology), 1: 156, 439, 466 Abrahamson v. Illinois Department of Professional Regulation, 1: 464 Absolute thinking, in ethical decision making, 1: 105 Absolutism, ethical, 1: 12 Abuse. See also Mandatory reporting laws domestic, 1: 50–51, 394, 2: 36–37 of legally allowed exceptions to confidentiality, 1: 356 in military psychology, 1: 138 of older adults, 2: 22 ACA (American Counseling Association), 1: 22, 46, 69–70 Academic freedom, 1: 79, 2: 224, 226, 232 Academic integrity, 2: 237–245 Academic settings. See also Education; Ethical academic cultures confidentiality and recordkeeping considerations, 1: 365–366 requirements for, 1: 460–461 Academic tests, standardized, 2: 64–66 ACCA (Advisory Committee on Colleague Assistance), APA, 1: 189–190, 195, 203

Acceptance, affective, 1: 179 Access to records, client, 1: 360–361. See also Record keeping Accommodations for disabled in schools, 2: 138 Accountability regulation of professional psychology, 1: 475–477 for self, 2: 297–299 Accreditation distance learning, 1: 477–478 education requirements, 1: 459–461 and training in emotional competence, 1: 202–203 Acculturation process in ethics, 1: 495–496, 498, 500–502, 2: 221, 288–289 Accuracy in Reports to Payers and Funding Sources (Standard 6.06), APA Ethics Code, 1: 63, 361 Accuracy in Teaching (Standard 7.03), APA Ethics Code, 1: 64, 2: 228 Act utilitarianism, 1: 17 Actions, moral, classification of, 1: 148 Active deception, 2: 402 Activism, animal, 2: 423–427 Actual (unconditional) duty, 1: 20–21 Actuarial instruments, 1: 388 ADAA (Americans With Disabilities Amendments Act of 2008), 2: 137–139 Adaptation of work of others, 2: 319 Adelman, H. S., 2: 132 Adjudication APA ethics program, 1: 49, 55 and autonomous decision making, 1: 115 of complaints, 1: 455–456 of misconduct by students, 2: 244

Administration, test, 2: 46 Administrative law, forensic psychology in, 2: 95, 101–102 Administrative pressures, school, 2: 141–143 Administrative staff, delegation to, 1: 436. See also Staff, office AdN (Ataques de Nervios) culture-bound syndrome, 1: 226 Adolescents. See also Child psychotherapy; School psychology behaving badly, 2: 10 and confidentiality, 2: 7–8 gift-giving considerations, 1: 266 research involving, and informed consent, 2: 345–347 sexual minorities, 1: 233 suicidal, 1: 390 Adult patients. See Older adult patients Adversarial allegiance, 2: 110 Advertising, 1: 437–441 board certification and vanity boards, 1: 439 in-person solicitation, 1: 441 media presentations, 1: 441 in telehealth, 2: 194–195 testimonial endorsements, 1: 439–441 use of professional titles, 1: 439 Advertising and Other Public Statements (Section 5), APA Ethics Code, 1: 62–63 Advice, bad, and avoidable disclosures, 1: 354 Advisory Committee on Colleague Assistance (ACCA), APA, 1: 189–190, 195, 203 Advocacy APA Education Directorate, 1: 87 by attorneys, 2: 92

441

Index

Advocacy (continued) versus insubordination, in school psychology, 2: 143 political, 1: 88–90 regarding religion and spirituality, 1: 287–288 role of APA in, 1: 80–81 Advocacy counseling, 1: 22–23. See also Social justice Advocacy-evaluation tension, 2: 267 AERA (American Educational Research Association). See Standards for Educational and Psychological Testing Affairs, and couples therapy, 2: 41 Affective acceptance, 1: 179 African Americans (Blacks), 1: 220–221, 228–229 After-death situations, 1: 365 Age bias based on, 1: 152 verification of for Internet research, 2: 391 Agency for Healthcare Research and Quality (AHRQ), 1: 231 Agency settings boundaries regarding dress in, 1: 263 and emotional competence, 1: 186, 203 high-risk patients, 1: 406 professional liability coverage in, 1: 510 Aggregate limit of coverage, in group policies, 1: 515 Aggression, patient, effect on psychologist, 1: 184–185. See also Threatening clients Agreement on Internal Trade, Canada, 1: 460 Aguinis, H., 2: 412 AIDS clients, irresponsible, 1: 113 Ainu culture-bound syndrome, 1: 226 Air Force personnel, test response styles of during Vietnam War, 2: 61–62 Airline safety, 1: 485 Alcoholism, in psychologists, 1: 191, 194 Alexander, V., 1: 106–107, 109 Alliance, therapeutic. See Therapeutic relationship Allocational vulnerability, 2: 376–377 Allport, Gordon, 1: 92 Altekruse, M., 1: 113 Alternative dispute resolution, 2: 113–114 Alternative hypotheses, examination of in FMHAs, 2: 109 442

Alternative medicine, competence in, 1: 159 Altruism, 1: 11–12 Ambivalent racism, 1: 221 Amendments, to APA Ethics Code, 1: 53 American Association of University Professors (AAUP), 2: 232 American Board of Forensic Psychology (ABFP), 2: 98 American Board of Professional Psychology (ABPP), 1: 156, 439, 466 American Counseling Association (ACA), 1: 22, 46, 69–70 American Educational Research Association (AERA). See Standards for Educational and Psychological Testing American Psychological Association (APA) academic integrity, 2: 237 accreditation, and training in emotional competence, 1: 202–203 certification in substance abuse treatment, 1: 156–157 cognitive impairment, evaluating, 2: 59 competent practice, 1: 156 complaints, 1: 172, 487–488 confidentiality guidelines, 1: 338 conflict-resolution strategies, 1: 91 conflicts of interest in commercially funded research, 2: 362 controversies within, 1: 89–91 culture-centered approach, 1: 234 diversity, early experiences with, 1: 222–223 duty to protect or warn, 1: 380–381 Ethics Code. See Ethics Code, APA; specific parts of Ethics Code by name ethics education, 2: 277 ethics program, 1: 48–54 evidence-based practice, 1: 157–158 guidelines of. See specific APA guidelines by name health care practice, 2: 76, 77–78 lab animal policies, 2: 428 military psychology, 1: 136–139 Model Licensing Act, 1: 457, 458, 461–462, 468–470 political advocacy, 1: 88 practice guidelines, 1: 158–159 prescription privileges, 1: 157 religious and spiritual issues, 1: 286

reuse of published material, 2: 319 scholarship, 2: 313 sexual minorities, guidelines for working with, 1: 232 sexualized relationships, 1: 296–297 social justice and civic virtue applications in, 1: 82–88 social justice and civic virtue, commitment to, 1: 76–77 social justice, history of involvement in, 1: 79–82 task forces of. See specific APA task forces by name telehealth, 2: 186 test security, 2: 50, 53–54 Test Standards. See Standards for Educational and Psychological Testing test user qualifications, 2: 48–49 American Psychological Association of Graduate Students (APAGS), 1: 195 American Psychological Foundation (APF), 1: 88–90 American Sociological Association (ASA), 2: 408 Americans With Disabilities Amendments Act of 2008 (ADAA), 2: 137–139 Amicus involvement in court system, of APA, 1: 83 Analgesics, in lab animal research, 2: 433 Anderson, M. S., 2: 310–311 Anderson, S. K., 2: 289 Anesthetics, in lab animal research, 2: 433 Anger of patients, effect on psychologist, 1: 184. See also Threatening clients Animal Liberation (Singer), 2: 423 Animal protectionism, 2: 423–427 Animal research. See Laboratory animal research Anonymity and Internet communication, 2: 184 in Internet research, 2: 389–390 in telehealth, 2: 194 Anonymous research, 2: 351 Anorexia, 1: 227, 391 Anthropocentrism, 2: 426 Anthropomorphic view of pain, in lab animal research, 2: 433 “Anti-aging” pursuits, 2: 22–23 Antidiscrimination legislation, 2: 130, 137–139 “Antiethical theory” views, 1: 30–31 Antiprinciplism, 1: 21 Anti-Semitism, 1: 90–91

Index

Antitheory approaches, 1: 21 Antivirus software, 2: 188–189 Antonuccio, D. O., 2: 313 APA. See American Psychological Association APA Practice Organization (APAPO), 1: 88 APA Presidential Task Force on Enhancing Diversity: Final Report, 1: 89 APAGS (American Psychological Association of Graduate Students), 1: 195 APF (American Psychological Foundation), 1: 88–90 A posteriori (empirical) approaches, 1: 32, 33 Appelbaum, P. S., 1: 313–314, 325, 327–328, 2: 355 APPIC (Association of Psychology Postdoctoral and Internship Centers) Competencies Conference, 2: 265 Applied ethics, 1: 10 Appointments, missed and canceled, 1: 443 Appreciation, and consent capacity, 2: 349 Appropriate, use of term in APA Ethics Code, 1: 56 APS (Association for Psychological Science), 2: 408 Arbitrary grounds, 1: 38 Arbitrating, in social constructivism model, 1: 110–111 Archival research, 2: 351 Aristotelian ethics, 1: 14–15 boundaries in, 1: 243 function, 1: 15 happiness, 1: 14–15 in multilevel model of ethical decision making, 1: 27 particularism, 1: 39 phronesis, 1: 15 teleology, 1: 14 theory of prima facie duties, 1: 21 Arnold, M., 2: 82 Article 90, Manual for Courts Martial, 1: 133 Article 92, Manual for Courts Martial, 1: 133–134 ASA (American Sociological Association), 2: 408 Ascribed power, in faculty–student relationships, 2: 249 ASERVIC (Association for Spiritual, Ethical, and Religious Values in Counseling), 1: 286 Asian Americans, 1: 227, 229–230

Asian patients, 1: 225–226 Aspirational provisions, APA Ethics Code, 1: 55. See also General Principles, APA Ethics Code; specific Ethics Code principles by name ASPPB. See Association of State and Provincial Psychology Boards Assent in child psychotherapy, 1: 327, 2: 5–6 of children to research, 2: 346 of children to testing, 2: 59 of minors to family therapy, 2: 31 in school psychology, 2: 130 Assessing Student and Supervisee Performance (Standard 7.06), APA Ethics Code, 1: 64, 166, 2: 228, 266–267, 271 Assessment, 2: 45–69 academic, cheating on, 2: 243–244 automated and Internet testing, 2: 55–57 in cases of domestic abuse, 2: 36–37 collaborative, 2: 60–64 competence in, 1: 164–165 external consequences, 2: 64–69 forensic. See Forensic mental health assessments in forensic psychology, 2: 92–93 in hostage and crisis negotiation, 1: 128–129 informed consent, 2: 57–60 of older adult patients, 2: 19–20 of performance, while teaching, 1: 166 religious and spiritual issues, 1: 286–287 and risk management, 1: 505 in school psychology, 2: 133–139 in school versus nonschool psychology, 2: 128 self, lack of as threat to emotional competence, 1: 179–180 in telehealth, 2: 193 test construction, 2: 45–48 test security, 2: 50–55, 106, 114 test user qualifications, 2: 48–50 Assessment (Section 9), APA Ethics Code, 1: 66, 2: 45–46 Assessment by Unqualified Persons (Standard 9.07), APA Ethics Code, 1: 66, 2: 49 Assimilation, in acculturation process, 1: 496, 500, 2: 288 Assisted suicide, 1: 364 Associates, APA Ethics Committee, 1: 48 Association ethics programs, 1: 48

Association for Psychological Science (APS), 2: 408 Association for Spiritual, Ethical, and Religious Values in Counseling (ASERVIC), 1: 286 Association for the Advancement of Psychology (AAP), 1: 88 Association for the Assessment and Accreditation of Laboratory Animals Care (AAALAC) International, 2: 428 Association of American Colleges and Universities (AAC&U), 2: 232 Association of Psychology Postdoctoral and Internship Centers (APPIC) Competencies Conference, 2: 265 Association of State and Provincial Psychology Boards (ASPPB) competence in supervision, 1: 165–166 complaint types, 1: 487 professional mobility, 1: 467–468 professional regulation in psychology, 1: 454 reporting disciplinary actions to, 1: 473–474 supervised experience as licensure requirement, 1: 462 supervisor–supervisee sexual relationships, 2: 269 Association of Women in Psychology, 1: 79 Asynchronous telehealth, 2: 183 Ataques de Nervios (AdN) culture-bound syndrome, 1: 226 Attorneys conflicts of interest in forensic psychology, 2: 111 hire of expert witnesses, 2: 94 role in legal system, 2: 92 subpoenas, 1: 352, 2: 117–118 working for in forensic psychology, 2: 102–103 Attorney–work product rule, 2: 94, 105 Attraction, sexual, 1: 171–172. See also Sexualized relationships Auctions, of psychological test materials, 2: 49 Audi, R., 1: 35 Authority, vulnerability to, 2: 375 Authorization autonomous, 2: 84 for treatment, in managed care, 1: 447 for use of PHI under HIPAA, 2: 358–359 443

Index

Authors, identity of in masked review process, 2: 327 Authorship credit, 1: 168–169, 2: 252, 313–317 Autobiographies, ethics, 2: 289 Automated testing, 2: 55–57 Autonomous authorization, 2: 84 Autonomous decision making, 1: 115, 315–317, 328–329. See also Individual choice Autonomous lawgivers, in Kantianism, 1: 18–19 Autonomy. See also Informed consent in coaching, 2: 176, 178–179 in crisis situations, 1: 271 defined, 1: 101 in health care practice, 2: 83–86 informed consent to assessment, 2: 57–59 in multilevel model of ethical decision making, 1: 28, 29, 31 of older adults, psychologist role in limiting, 2: 21–22 in reflective judgment model, 1: 36–37 reflective judgment model, 1: 36–37 and vulnerability to authority, 2: 375 when beginning and ending psychotherapy, 1: 418–419 Availability, psychologist, 1: 423 Aversive racism, 1: 219–220 Avoidable disclosures, 1: 353–356 Avoidance of False or Deceptive Statements (Standard 5.01), APA Ethics Code, 1: 62, 437–438, 439, 2: 23, 320 Avoiding Harm. See Standard 3.04, APA Ethics Code Awareness and enhancement of emotional competence, 1: 204 ethical, in responsible conduct of research, 2: 336–337 multicultural ethical, in research, 2: 364 in training regarding sexualized relationships, 1: 305–306

Backups, data, 2: 190 Baird, K. A., 1: 187 Balancing approach to ethical principles, 1: 32 of moral principles, 1: 38 Balogh, D. W., 2: 240–241

444

Banaji, M., 2: 396 BAPPI (Board for the Advancement of Psychology in the Public Interest), 1: 80 Barnett, J. E., 1: 175, 187 Barter With Clients/Patients (Standard 6.05), APA Ethics Code, 1: 63, 246, 445 Bartering, 1: 261–262, 445–446 Baseline competence for health care, 2: 78–79 Bases for Assessments (Standard 9.01), APA Ethics Code, 1: 66, 2: 204 Bases for Scientific and Professional Judgments (Standard 2.04), APA Ethics Code, 1: 59–60 Bashe, A., 2: 289 Bauer, L., 2: 54 Beauchamp, T. L. classification of moral actions, 1: 148 conflicts of interest in health care practice, 2: 86 informed consent in health care, 2: 84 principle ethics, 1: 34–35, 101, 244, 418 Beck, R., 1: 497 Beebe, R. S., 1: 380 Behavior client, affecting psychologist emotional competence, 1: 183–185 improper, in distress and impairment continuum, 1: 190 Behavioral Science Consultants (BSCs), 1: 138 Belanger, S., 2: 356 Belar, C., 2: 78–79 Beliefs. See Spirituality Bellah v. Greenson, 1: 379 Belmont Report, 1: 6, 2: 57 Benchmarks establishing minimal competencies for health care, 2: 77–78 Beneficence in academic psychology, 2: 224–225 in APA Ethics Code, 1: 57 boundaries in crisis situations, 1: 268–269 and competence, 1: 150 defined by Beauchamp and Childress, 1: 101 distressed and impaired colleagues, 1: 194 institutional review boards, 2: 338 Internet research, 2: 394 in I/O psychology, 2: 152–153

mental health consequences of religion, 1: 283–284 in multilevel model of ethical decision making, 1: 26, 28, 29, 31 in public education, 2: 199 reflective judgment model, 1: 36–37 school psychology, 2: 126 social considerations in treatment of older adults, 2: 23 Beneficence and Nonmaleficence. See Principle A, APA Ethics Code Bennett, B. E., 1: 352, 2: 186–187 Benowitz, M., 1: 302 Bentham, Jeremy, 1: 16–17 Berg, J. W., 1: 313–314, 325, 327–328 Berman, J., 1: 113–114 Bersoff, Donald N., 2: 61–62 Betan, E. J., 1: 102–103, 114, 178 Between-group designs, 2: 342 Biaggio, M., 2: 251–252 Bias in APA Ethics Code, 1: 58 and competence, 1: 151–154 contact hypothesis, 1: 92 in family therapy, 2: 41–42 in forensic mental health assessments, 2: 110 interface of psychology with, 1: 218–223 reducing in FMHAs, 2: 109 religion and spirituality, 1: 285 Bidirectional influence, 1: 202 Bifurcated criminal trials, 2: 99 Bilis culture-bound syndrome, 1: 227 Billing. See also Fees and financial arrangements and boundaries, 1: 260–262 clarifying at outset of therapy, 1: 421–422 managed care companies, 1: 447–448 multiperson therapy, 2: 40 overview, 1: 442–443 Biofeedback, 1: 169 Biracial families, 2: 12 Bisexuals. See Lesbian, gay, bisexual, transgendered, and questioning Blacks (African Americans), 1: 220–221, 228–229 Blair, J., 1: 221 Blanco, S., 2: 266 Blau, B. I., 2: 281–282 Blind spots in ethical decision making, 1: 114 Blum, S. D., 2: 243

Index

BN (bulimia nervosa), 1: 227 Board certification, 1: 439, 466, 2: 98 Board for the Advancement of Psychology in the Public Interest (BAPPI), 1: 80 Board of Directors, APA, 1: 49, 1: 55 Board of Education of the Hendrick Hudson Central School District v. Rowley, 2: 136 Board of Social and Ethical Responsibility in Psychology, 1: 79–80 Bodywork, 1: 250 Bogus pipeline, 2: 412 Borzuchowska, B., 1: 104 Boston Medical Center, 1: 224 Boston University School of Medicine, 1: 224 Bottom-up approaches of ethical methodology, 1: 32–33 Boundaries, 1: 241–273 APA Ethics Code, guidance from, 1: 245–246 in coaching, 2: 173–174 of competence, remaining within, 1: 159–162 competence in maintaining, 1: 167 in crisis situations, 1: 267–271 crossing and violation of, 1: 246–247 dress, office décor, and office setting, 1: 262–264 finances and bartering, 1: 260–262 food and drink, 1: 264 in forensic mental health assessments, 2: 110–111 in forensic psychology, 2: 98 functions of, 1: 246–247 gifts, 1: 265–266 in health care practice, 2: 86–87 with high-risk patients, 1: 407 in hostage and crisis negotiation, 1: 130 issues in coaching, 2: 173–175 language, 1: 264–265 membership in communities of likeminded individuals, 1: 266–267 and moral philosophy, 1: 243–245 in multiperson therapy, 2: 37–39 reactions to, 1: 271–272 self-disclosure, 1: 250–260 and sexualized relationships, 1: 305 strategies for balanced, 1: 272–273 in supervision, 2: 269 tending and mending, 1: 271–273 time management, 1: 262

touch, physical contact, and personal space, 1: 248–250 when beginning and ending psychotherapy, 1: 417–418 Boundaries of Competence. See Standard 2.01, APA Ethics Code Boundary breaks, 1: 246 Boundary crossings, 1: 246–247 Boundary extensions, 1: 246 Boundary violations, 1: 246–247 Bowen, S. E., 2: 80 Boyatzis, R., 2: 246 Brabeck, M. M., 1: 22 Bradley, R., 1: 158 Brady v. Barasch, 1: 464 Bray, James H., 1: 83–84 Breaks, boundary, 1: 246 Brehm, Sharon Stephens, 1: 84 Bricklin, P. M., 1: 352, 2: 186–187 Brillon v. Klein Independent School District, 2: 136 Brochures, consumer, and promotion of ethical reasoning, 2: 295–296 Brodie, J., 1: 193 Brodsky, A., 1: 106–107, 109 Bronfenbrenner, U., 1: 202, 233 Brown, C. K., 1: 184 Brown, L., 1: 175–176, 2: 98–99 Brown, M. E., 2: 220 Bruckman, A., 2: 396 BSCs (Behavioral Science Consultants), 1: 138 Bucceri, J. M., 1: 220 Bulimia nervosa (BN), 1: 227 Bullying, 2: 10 Bureau of Competition, FTC, 1: 54–55, 439–440 Burger, J. M., 2: 416–417 Burian, B., 2: 269 Burnes, T. R., 1: 93 Burnout, in psychologists, 1: 189–190 Bursztajn, H. J., 1: 106–107, 109 Business, online solicitation of, 2: 209–210 Business aspects of practice, 1: 433–450 advertising and public statements, 1: 437–441 delegation to subordinates, 1: 436 employees versus independent contractors, 1: 437 fees and financial arrangements, 1: 442–448 interruptions in practice, 1: 448–450 office policies, 1: 434–435

office setup, 1: 433–434 running practice, 1: 435–437 technology, 1: 437 Business psychology. See Industrial– organizational psychology Butterfield, K. D., 2: 238 Bylaw 1.1, APA, 1: 76

Cage environment, laboratory animal, 2: 434–435 Calculus of pleasure, 1: 16–17 Caldwell, J. C., 1: 92–93 California (ship), 1: 485 California Board of Psychology, 2: 265, 271 California Supreme Court, 1: 378 Callahan, D., 2: 238 Callanan, P., 1: 107–109 Campbell, L. F., 1: 464 Canada, licensure in, 1: 460 Canadian Code of Ethics for Psychologists, 1: 46–48, 116 Canceled appointments, 1: 443 Canino, G., 1: 226 Canterbury v. Spence, 1: 315, 2: 58 Capital murder cases, 2: 48 Capital punishment, determining defendant eligibility for, 2: 67–68 Capodilupo, C. M., 1: 220 Capping systems for Internet research, 2: 397 CAPs (colleague assistance programs), 1: 187, 203–204 Care duty of, 1: 420, 427 ethics of, 1: 22, 244–245 laboratory animal, 2: 432–436 Caregiver role of psychologist, overidentification with, 1: 188, 193–194 Caring, in moral behavior, 2: 150 Carlson, J., 1: 179 Carroll, L., 1: 193 Carter, M., 1: 313 Cartwright, B., 1: 104 CASA (court-appointed special advocate) volunteers, 1: 353 Case conception, in crisis situations, 1: 269 Case examples in continuing education, 2: 300 and effective teaching of Ethics Code, 2: 286–287 and promotion of ethical motivation, 2: 297

445

Index

Case examples (continued) and promotion of ethical reasoning, 2: 292–294 and promotion of ethical resoluteness, 2: 297–298 in scholarship, 2: 325–326 Casualties, group, 2: 36 Categorical imperatives, 1: 18, 19–20, 243 CCEs (child custody evaluators), 2: 101 CE. See Continuing education Ceiling, ethical, 1: 148–149, 311–313 Celenza, A., 1: 299 Center for Academic Integrity, 2: 237 Center for Multicultural Training in Psychology, 1: 224 Certificate of Confidentiality, 2: 353 Certificate of professional qualification (CPQ), 1: 467 Certification board, 1: 439, 2: 98 specialty, 1: 466–467 in substance abuse treatment, 1: 156–157 Character in Aristotelian ethics, 1: 15 moral, 1: 464–465, 469–470, 2: 153, 222–223, 282–283 Character ethics, 1: 243. See also Virtue ethics Charts, patient, in health care, 2: 82–83 Chat rooms. See Telehealth Cheating in academic contexts, 2: 237–245 Chenneville, T., 1: 113 Chenoweth, M., 2: 251–252 Cheung, C., 2: 394–395 Child abuse reports, 1: 50–51. See also Duty to protect or warn; Mandatory reporting laws Child custody disputes, and child psychotherapy, 2: 11 Child custody evaluations consequences of lack of competence in, 1: 171 and family therapy, 2: 40–41 in forensic psychology, 2: 100–101 and high stakes testing, 2: 66 risk management, 1: 497–498 Child custody evaluators (CCEs), 2: 101 Child discipline, and multicultural sensitivity, 1: 103–104 Child find requirement, IDEA, 2: 134 Child psychotherapy, 2: 3–13. See also School psychology

446

adolescents behaving badly, 2: 10 APA ethics consultations regarding, 1: 51 children presenting for treatment, 2: 4 conceptualizing “client”, 2: 3–4 confidentiality, 1: 363 and gift-giving, 1: 266 informed consent, 1: 327, 350 initiating therapeutic relationship, 2: 4–9 and limitations of Ethics Code, 2: 285 mandatory reporting laws, 2: 9–10 no-subpoena promises in, 1: 354 overarching strategies, 2: 13 practitioner competence, 2: 4 public education regarding, 2: 200 record keeping, 1: 363 redisclosure of information, laws on, 1: 352–353 special clinical considerations, 2: 10–13 telehealth, 2: 193 termination of by client, 1: 427–428 touch in, 1: 249 Children consent to testing, 2: 58–59 research involving, and informed consent, 2: 345–347 Childress, J. classification of moral actions, 1: 148 conflicts of interest in health care practice, 2: 86 informed consent in health care, 2: 84 principle ethics, 1: 34–35, 101, 244, 418 Chin, J. L., 1: 223 Choi, W., 2: 394–395 Choice. See also Ethical decision making; Individual choice and consent capacity, 2: 348 in ethical dilemmas, 2: 151 and role conflicts in academic culture, 2: 249 Chronic stressors, and therapist competence, 1: 493 Chronically suicidal clients, 1: 390 CIOMS (Council for International Organizations of Medical Sciences), 2: 372 Citations, in publications, 2: 317–319 Civic virtue, 1: 75–94 APA’s commitment to, 1: 76–77 applications of in APA, 1: 82–88 conflict resolution strategies, 1: 91–92

controversies, 1: 89–91 history of APA’s involvement in, 1: 79–82 political advocacy, 1: 88–90 in psychology, 1: 76–77 psychology and, 1: 77–79 social justice orientation, development of, 1: 92–93 Civil law barriers to informed consent in, 2: 104–105 examining experts in, 2: 95 forensic psychology in, 2: 91–92, 100 Civil Rights Act of 1871, 2: 130 Civil rights legislation, and education, 2: 130, 137–139 CL (collaborative law), 2: 114 Claims-made coverage, professional liability insurance, 1: 510–512 Clarity of initial informed consent process, 1: 348 in manuscript evaluation, 2: 329–330 Clark, Kenneth B., 1: 79–80 Class interests, in animal activism, 2: 424 Classroom. See also Education; Ethical academic cultures favoritism in, 2: 250–251 teaching–learning process and positive ethical culture, 2: 240 Clean, well-lit room standard, 1: 396, 2: 250 Client handouts, on confidentiality, 1: 347 Client/Patient, Student, and Subordinate Research Participants (Standard 8.04), APA Ethics Code, 1: 65 Client-related conversations, by therapists, 1: 353 Client-related third parties, disclosures to, 1: 354 Clients access to records, 1: 360–361 aggressive, effect of on psychologist, 1: 184–185 boundaries with. See Boundaries in child psychotherapy, 2: 7 clinical work with subjects of media projects, 2: 205–206 in coaching, 2: 173–179 of coaching versus psychotherapy, 2: 170 compelled testimony regarding, 2: 118–119 competence in maintaining boundaries with, 1: 167

Index

concern for good of, in professions, 1: 7 confidentiality considerations with certain, 1: 363–365 defining at outset of treatment, 1: 419–421 duties of, 1: 423–424, 429 effect of practicing outside area of competence, 1: 171–172 expectations of regarding health promotion services, 2: 23 failure to pay, 1: 443–446 filing complaints, characteristics of, 1: 489, 490–491 high-risk. See High-risk patients identifying in forensic psychology, 2: 102–103 ineffective participation in therapy, 1: 429 and informed consent. See Informed consent informing in ethics-based confidentiality practice model, 1: 347–349 interpersonal functioning and care of, 1: 176–177 missed and canceled appointments, 1: 443 of multiperson therapy, 2: 32–33 multiple relationships with. See Multiple relationships participation of, and risk management, 1: 501–502 possible effects of evaluation failures on future, 2: 267–268 posting online about clinical work, 2: 210–211 putting media professionals in touch with, 2: 204–205 reactions to boundaries, 1: 271–272 record keeping considerations with certain, 1: 363–365 requests by, regarding record content, 1: 358 risk management, and characteristics of, 1: 490–491, 496–499, 2: 187 sexualized relationships with. See Sexualized relationships soliciting feedback from, and competence, 1: 162–163 subjects of media projects, 2: 205–206 telehealth, 2: 192–194 termination initiated by, 1: 426–428 therapy in home of, 1: 263–264 threatening. See Threatening clients

use of PHI for research without authorization by, 2: 358–359 using to market, 2: 202–203 Climactic conditions, and boundaries, 1: 248 Climate in ethical academic cultures, 2: 254 institutional, 2: 150, 219–223, 234 Clinical equipoise, 2: 340–341 Clinical guidelines, 1: 159 Clinical health psychology. See Health care practice Clinical psychology. See also Assessment; Business aspects of practice; Psychotherapy; Therapeutic relationship APA ethics consultations, 1: 51–52 clients posting online about, 2: 210–211 combining with public education, 2: 203–204 confidentiality considerations, 1: 367–368 at Guantanamo Bay, 1: 136, 139–140 involvement of clinicians in forensic psychology, 2: 117–119 providing services to team in crisis negotiation, 1: 129–130 record keeping considerations, 1: 367–368 with subjects of media projects, 2: 205–206 treating experts, clinicians as, 2: 96 using vignettes from in academic cultures, 2: 249–250 vulnerable populations identified by research in, 2: 373 Clinical supervision, 2: 261–272 competence, 1: 150, 165–166, 2: 264–266 confidentiality, 1: 368, 2: 270 defining, 2: 261–262 delegation to subordinates, 1: 436 due process, 2: 270–271 effects of ethical breaches on supervisees, 2: 263–264 emotional competence of supervisees, 1: 195–202 evaluation, 2: 266–268 future directions, 1: 74 informed consent, 2: 271 maintaining boundaries with trainees, 1: 167 multiple relationships, 2: 268–270

prevalence of ethical breaches, 2: 262–263 record keeping, 1: 368, 507 supervisor–supervisee sexualized relationships, 1: 297, 298, 301, 303 supervisory excellence, 2: 271–272 teaching about confidentiality, 1: 357 Clinical variables related to violence, 1: 388 Coaching, 2: 169–179 competence or retraining issues, 2: 172–173 confidentiality issues, 2: 177–179 future directions, 1: 73 informed consent issues, 2: 175–177 multiple relationships and other boundary issues, 2: 173–175 overview, 2: 169–171 and psychotherapy, 2: 170–171 Coaching psychology, 2: 170 Coadvisement, in collaborative assessment, 2: 62 Cochran, D. J., 2: 270–271 Codes of ethics, 1: 43–70 and academic cultures, 2: 220–221 adequacy of, 1: 7–8 of American Counseling Association, 1: 46, 69–70 of APA. See Ethics Code, APA APA ethics program, 1: 48–54 biomedical ethics and federal regulations, 1: 6 Canadian Code of Ethics for Psychologists, 1: 46–48, 116 comparing, 1: 68–70 defined, 1: 6–7 duty to protect, 1: 380–381 ethical decision making, 1: 46–48 informed consent issues in coaching, 2: 176 internal ethical deliberation in psychology, 1: 5–6 international, 1: 48 of National Association of Social Workers, 1: 45–46 professions, defined, 1: 7 protections for lab animals, 2: 428 purpose of, 1: 46 rationale for, 1: 23–24 rule utilitarianism, 1: 17 school psychology, 2: 125–126 vulnerable populations, research with, 2: 372 Coding, in Internet research, 2: 387, 389–390

447

Index

Coercion in compensation for research, 2: 376–377 in multiperson therapy, and competence, 2: 30 Cognitive impairment and consent to testing, 2: 59 and informed consent for research, 2: 347–350 older adult patients with, 2: 21–22 Cognitive interviewing, 2: 374–375 Cognitive reasoning, 1: 178 Cognitive vulnerability, 2: 374–375 Cohen, J., 2: 396 Coherence, 1: 38 Cohesion, group, 2: 30 Colearning, 2:337–338 COLI (Committee on Legal Issues), 2: 53–54 Collaboration among students, and plagiarism, 2: 243 empowered, 1: 328–329, 411–412. See also Informed consent in health care practice, 2: 80–81 in independent clinical practice, 1: 367–368 religion and spirituality, 1: 288 in safety science, 1: 485–486 between school psychologists and nonschool professionals, 2: 128–129 in treatment of older adults, 2: 21 Collaborative assessment, 2: 60–64 Collaborative law (CL), 2: 114 Collateral contacts confidentiality considerations, 1: 363 in family therapy, 2: 39 identifying clients at outset of therapy, 1: 420–421 informed consent, 1: 327 in multiperson therapy, 2: 32–33 record keeping considerations, 1: 363 risk management, 1: 498 Collateral sources of information, in FMHAs, 2: 106, 108 Colleague assistance programs (CAPs), 1: 187, 203–204 Collection agencies, 1: 443–444 Collective action, 1: 77, 82 Collective determination of virtue, in Aristotelian ethics, 1: 243 College of Professional Psychology (COPP), APA, 1: 156–157

448

College students, sampling in Internet research, 2: 386 Colorado, practice of psychology in, 1: 457 Commercially funded research, conflicts of interest in, 2: 361–363 Commission on Accreditation, APA, 2: 277 Commission on Ethnic Minority Recruitment, Retention, and Training, APA, 1: 222–223 Commitment, ethical, 2: 336, 363–364 Committee of Scientific and Professional Ethics, 1: 5 Committee of the Association on Academic Freedom and Civil Liberties, 1: 79 Committee on Ethical Guidelines for Forensic Psychologists, 2: 113, 116–117 Committee on Legal Issues (COLI), 2: 53–54 Committee on Psychological Tests and Assessment (CPTA), 2: 48, 53 Committee on Women in Psychology (CWP), 1: 79 Common Rule, 2: 339 Common sense, vulnerable populations identified by, 2: 373 Common-sense morality, 1: 20 Communication about experimental approaches, 2: 203 in academic psychology, 2: 225 effectiveness of, in health care teams, 2: 82–83 in risk calculation, 1: 497–498 in safety science, 1: 486 between school psychologists and nonschool professionals, 2: 128–129 in team-based health care, 2: 80–81, 83, 85 Communities concerns regarding multiple relationships in, 1: 256–259 confidentiality and recordkeeping considerations in, 1: 366–367 in Kantianism, 1: 19 responsibility to, in school psychology, 2: 127 Community of learners, 2: 290 Community resources, for high-risk patients, 1: 405 Community space, respecting in Internet research, 2: 393–394

Community-based mental health care settings referral of students to, 2: 131 and school psychologists, 2: 128–129, 144 Compassion fatigue, 1: 183 Compelled testimony, 2: 53–54, 118–120 Compensation for research participation, 2: 344–345, 376–378 Compensation systems, and I/O psychology, 2: 152 Competence, 1: 147–172. See also Diverse populations, competence with; Emotional competence academic, 2: 249 achieving, 1: 154–156 in APA Ethics Code, 1: 59 assessment, 1: 164–165 automated and Internet testing, 2: 55–56 bias and prejudice, 1: 151–154 boundaries, maintaining, 1: 167 clinical supervision, 1: 165–166, 2: 264–266 coaching, 2: 172–173 of cognitively impaired individuals to consent to testing, 2: 59 ethical academic cultures, 2: 230 versus ethics, 1: 44 of expert witnesses, 2: 93–94 forensic psychology, 2: 97–99, 107 general ethical principles relating to, 1: 150–151 high-risk patients, 1: 404–405 in Internet research, 2: 397 interpersonal, fostering under clinical supervision, 2: 269–270 maintaining, 1: 155–156 for managed care work, 1: 447 mandatory continuing professional development, 1: 465–466 moral basis for, 1: 148–149 multicultural ethical, and research, 2: 363–365 in multiperson therapy, 2: 29–30 of older adults, 2: 100 to practice, assessment of, 1: 462–464 to practice in health care, 2: 76–78 practicing outside area of, 1: 170–172 publication, 1: 168–169 religion and spirituality, 1: 286–287, 289 research, 1: 168 retraining to achieve baseline, for health care, 2: 78–79

Index

and risk management, 1: 488, 490, 492–493, 502 school psychology, 2: 126–127 teaching, 1: 166 technology and telehealth, 1: 169–170 test user qualifications, 2: 49–50 therapy, 1: 156–164 threatening clients, 1: 396 transitioning to new areas of, 1: 170 Competence (Section 2), APA Ethics Code, 1: 59–60, 224 Competencies for Addressing Spiritual and Religious Issues in Counseling (ASERVIC), 1: 286 Competency to be executed, 2: 68–69 Competency to stand trial evaluations of sanity and, 2: 115 forensic psychology, 2: 99 high stakes testing to determine, 2: 66–67 Competent decision making, by children, 2: 4–6 Competitors, reviewing manuscripts of, 2: 327 Complainant matters, in APA ethics adjudication, 1: 49 Complaints adjudication of, 1: 455–456 impairment caused by, 1: 192 procedures in disciplinary action, 1: 471–472 psychologist fear of, 1: 186 regarding lack of competence, 1: 172 regarding sexualized relationships, 1: 303 types of, and risk management, 1: 486–489 Complementary medicine, competence in, 1: 159 Comprehension of therapy, by client, 1: 325–326 Compromise, ethical, in FMHAs, 2: 111–112 Computerized testing, 2: 19, 54–55 Computers. See also Telehealth communications about violent intent through, 1: 394–395 competence in use of, 1: 169 security of, 2: 188–190 therapy conducted via, and informed consent, 1: 321, 323 Concern for patient’s good, in professions, 1: 7

Concrete moral behavior, in model of ethical decision making, 1: 24–25 Concurrent individual and group therapy, 2: 38–39 Concurrent multiple relationships, 1: 252–254, 2: 173 Conditional confidentiality, 1: 333–334 Conditions, professional liability insurance, 1: 513 Confidentiality, 1: 333–369 in academic cultures, 2: 249–250 in APA Ethics Code, 1: 61–62 in cases of domestic abuse, 2: 37 with certain client populations, 1: 363–365 in child psychotherapy, 2: 7–8 clinical supervision, 2: 270 in concurrent individual and group therapy, 2: 38 conditional, 1: 333–334 in decision-making models, 1: 113 disclosure of information. See Disclosure of information duty to protect or warn. See Duty to protect or warn ethical dilemmas involving, 1: 3–4, 46–47 ethical responsibilities, 1: 335–338 ethics-based practice model. See Ethics-based confidentiality practice model ethics-based staff training about, 1: 368–369 failure to identify client at outset of therapy and, 1: 421 in family therapy, 2: 31 and fidelity, 1: 30 in forensic psychology, 2: 105–107 in health care practice, 2: 83 HIPAA requirements, 2: 356–359 and homosexuality in military psychology, 1: 131 and informed consent, 1: 316 Internet research, 2: 391–392 issues in coaching, 2: 177–179 and law, 1: 71, 338–342 in multiperson therapy, 2: 34–37 and office setup, 1: 433–434 older adult patients, 2: 17–19 outset of treatment, 1: 422 placing laws into ethical context, 1: 342–345 privilege. See Privilege of psychological tests, 2: 50–54

record keeping, 1: 63, 357–369, 435 reflective judgment model, 1: 36 in research, 2: 343–344, 352–356 and risk management, 1: 488 in rural and small communities, 1: 257 in scholarship, 2: 325–326 in school psychology, 2: 131–132 and sequential multiple relationships, 1: 255 in specific settings, 1: 365–368 in team-based health care, 2: 85 in telehealth, 2: 186, 187–190 underlying concepts, 1: 334–335 when using interpreters, 1: 264 Conflict in academic setting, 2: 224–226, 247–253 of consensualities, 1: 109–110 in and between ethical codes, 1: 7–8 within families, and child psychotherapy, 2: 11 intergroup, 1: 89–91, 93–94 mixed agency, 1: 123. See also Institutional ethical conflicts resolution strategies, 1: 91–92 role, 2: 82, 154, 249–250 in school psychology, 2: 139–143 of values, as ethical dilemma in I/O psychology, 2: 154 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority. See Standard 1.02, APA Ethics Code Conflicts Between Ethics and Organizational Demands. See Standard 1.03, APA Ethics Code Conflicts of interest in academic cultures, 2: 234–235, 249 in coaching, 2: 174–175 in commercially funded research, 2: 361–363 in concurrent individual and group therapy, 2: 38 in forensic mental health assessments, 2: 110–111 in health care practice, 2: 86–87 in I/O psychology, 2: 153–154, 157–159 in NASW Code of Ethics, 1: 68–69 in scholarship, 2: 311–317 when reporting research results, 2: 320–321 when working with managed care, 1: 447

449

Index

Conflicts of Interest (Standard 3.06), APA Ethics Code, 1: 60, 246, 2: 154, 157, 311 Confrontation, in multiperson therapy, 2: 30 Congruence, value, in I/O psychology, 2: 160 Connectedness, social, in risk calculation, 1: 493–495 Conroe, R. M., 1: 301 Conscience in autonomous decision making, 1: 115 in ethical dilemmas, 1: 4–5 Conscientious researchers, 2: 336 Consensualities, conflicts of, 1: 109–110 Consensualizing, in social constructivism model, 1: 110 Consent. See also Informed consent in child psychotherapy, 2: 4–6 and disclosure of information, 1: 62, 337–338 and empowerment, 2: 349–350 impaired capacity for, and informed consent to research, 2: 347–350 and production of vulnerability, 2: 380 to reporting psychologist misconduct, 1: 351 third parties, disclosures to without, 1: 354 in treatment of older adults, 2: 18 Consent-to-treatment forms, for child psychotherapy, 2: 11 Consequences, in ethical dilemmas, 2: 151 Consequentialism. See also Utilitarianism boundaries in, 1: 244 deception in research, 2: 406 versus deontology, 1: 14 laboratory animal research, 2: 426, 431 overview, 1: 16, 2: 151 Considered judgments in Kantian contractarianism, 1: 21 in reflective judgment model, 1: 35, 36 Constantine, M. G., 2: 266 Constitution, and regulation of schoolbased practice, 2: 127–129 Construct validity, of standardized educational tests, 2: 64–65 Construction, test, 2: 45–48 Consultants, forensic psychologists as, 2: 93, 102–103 Consultation APA ethics program, 1: 49–52 and boundaries, 1: 272

450

and competence, 1: 155 confidentiality considerations, 1: 357, 368 in ethical decision making, 1: 109, 115 in ethics-based confidentiality practice model, 1: 346–347 in health care practice, 2: 77, 79 high-risk patients, 1: 406, 409–411 in independent clinical practice, 1: 367–368 to interrogation, in military, 1: 136–139 in lab animal research, 2: 431 multiple relationships, 1: 260 record keeping considerations, 1: 368 regarding religion and spirituality, 1: 285, 288 regarding specific clients, 1: 353 and risk management, 1: 494, 502–504 versus supervision, 2: 261 in Welfel ethical decision-making model, 1: 385 when terminating therapy, 1: 429 Consultations (Standard 4.06), APA Ethics Code, 1: 4, 62, 346, 503 Consumer brochures, and promotion of ethical reasoning, 2: 295–296 Consumer education regarding sexualized relationships, 1: 304. See also Public education Consumerist right to choice, 1: 316 Contact hypothesis, 1: 92 Contagious diseases, and duty to protect, 1: 393–394 Content continuing education, 2: 299 of initial informed consent process, 1: 348 of records, 1: 358 Context coaching versus psychotherapy, 2: 171 and decision making, 1: 102–103 factors related to violence, 1: 388 in Kipnis model of vulnerability, 2: 373–378 in laboratory animal research, 2: 425–426 in risk management, 1: 491, 2: 187 of therapy, and high-risk patients, 1: 403–404 Contextual assessment, 2: 63 Contextualism, 1: 21, 38, 39 Contextualizing evaluations, 2: 62 Contingency fees, 2: 111, 116

Continuing education (CE) and competence in treatment of older adults, 2: 17 effective, 2: 299–300 in ethical academic cultures, 2: 231–232 Internet research, 2: 397 mandatory, 1: 465–466 Continuity paradox, in laboratory animal research, 2: 426–427 Contract theory (exchange theory), 1: 7 Contractarianism, 1: 21 Contracts coaching, 2: 176 confidentiality, 1: 422 group practice, 1: 449–450 for media work, 2: 207 no-suicide, 1: 390, 500 syllabi of academic courses as, 2: 228 Contractual obligations, in managed care, 1: 447 Control groups, in research for IRB review, 2: 342–343 Controversy, framing lab animal research as, 2: 430–431 Conventional behavior, 2: 150 Conventionalism, 1: 14 Cookbook approach, to making ethical judgments, 2: 162 Cooperating With Ethics Committees (Standard 1.06), APA Ethics Code, 1: 59 Cooperation in health care practice, 2: 80, 83 in safety science, 1: 485–486 Cooperation With Other Professionals (Standard 3.09), APA Ethics Code, 1: 60 Copays, waiving, 1: 448 COPP (College of Professional Psychology), APA, 1: 156–157 Copying of test information, on computers, 2: 54–55 Copyrights, test, 2: 51 Core values, APA, 1: 77 Corey, G., 1: 107–109 Corey, M. S., 1: 107–109 Corporate funding, and conflicts of interest, 2: 312–313, 361–363 Corporate social responsibility, 2: 161 Correctional system, forensic psychologists in, 2: 100 Correspondence, in records, 1: 507 Corruption, organizational, 2: 154, 155

Index

Corser, R., 2: 294 Costa, L., 1: 113 Cost–benefit approach to deception in research, 2: 404, 406 Costs of professional liability insurance, 1: 512–513 research, 2: 362–363 Cottone, R. R., 1: 103, 109–111 Council for International Organizations of Medical Sciences (CIOMS), 2: 372 Council for the National Register of Health Service Providers in Psychology (National Register), 1: 466–467 Council of Representatives, APA, 1: 53, 82–83, 90 Council of Specialties in Professional Psychology (CSPP), 1: 156 Counseling, advocacy, 1: 22–23 Counseling the Culturally Different: Theory and Practice (Sue & Sue), 1: 219 Counterproductive work behavior, 2: 155 Couper, M., 2: 376–377, 396 Couples therapy. See also Family therapy APA Ethics Code, 1: 67 identifying clients in, 1: 420–421 informed consent, 1: 327, 2: 31–32 therapist values in, 2: 41–42 Courage, moral, 2: 222 Court orders for child therapy, 1: 428 exceptions in, responding ethically to, 1: 351–352 versus subpoenas, 1: 352 Court-appointed special advocate (CASA) volunteers, 1: 353 Court-ordered treatment, 1: 403–404 Courts. See also Forensic psychology APA involvement in, 1: 83 assessments ordered by, 2: 60 competence in, 1: 169–170 disclosure of test information in, 2: 52–54 high stakes testing for use in, 2: 66–69 privileged communications laws, 1: 340 small claims, collecting fees through, 1: 443–444 working for, 2: 102 Coverage, professional liability insurance, 1: 511–512, 515 Covered entities, under HIPAA, 2: 357–359

CPQ (certificate of professional qualification), 1: 467 CPTA (Committee on Psychological Tests and Assessment), 2: 48, 53 Creative therapeutic approaches, 1: 160 Credentials banking services, 1: 468 evaluation services, 1: 461 regulation of professional psychology, 1: 466–467 in school versus nonschool psychology, 2: 129 vanity, 1: 155 Credit, authorship, 1: 168–169, 2: 252, 313–317 Crediting sources appropriately, 2: 319 Crethar, H. C., 1: 179 Criminal behavior, past, and moral character evaluations, 1: 465 Criminal cases, high stakes testing for use in, 2: 66–69 Criminal complaints, 1: 475–477 Criminal law barriers to informed consent in, 2: 104 examining experts in, 2: 95 forensic psychology in, 2: 91–92, 99–100 Crisis negotiation, in police psychology, 1: 128–130 Crisis situations, boundaries in, 1: 267–271 Critical evaluative level of ethical decision making, 1: 28–32 in Hare’s philosophically grounded model, 1: 105–106 overview, 1: 24–26 Tier 1: ethical rules, 1: 28 Tier 2: ethical principles, 1: 28–30 Tier 3: ethical theory, 1: 30–31 Tier 4: metaethics, 1: 31–32 Critical thinking about ethics, promoting, 2: 291–293 Critical-incident method, APA, 1: 54 Critique of written evaluations, in collaborative assessment, 2: 63 Cross-cultural research, 2: 352–353 Crossings, boundary, 1: 246–247 Cross-level peer interactions, 2: 290 CSPP (Council of Specialties in Professional Psychology), 1: 156 Cuba, importance of skin color in, 1: 227 Cube model, 2: 77–78 Cultural competence in immigration law, 2: 102

in military psychology, 1: 132 Cultural connections, and boundaries, 1: 266–267 Cultural minorities, 1: 364. See also Diverse populations, competence with; Multiculturalism Culture. See also Ethical academic cultures; Multiculturalism client, and informed consent process, 1: 323–324 competence in human diversity, 1: 152–153 and crisis situations, 1: 269–270 and decision making, 1: 102–103 diversity. See Diverse populations, competence with and emotional competence, 1: 178–179, 196 in ethical academic cultures, 2: 235–236, 254 ethical principles as specific to certain, 1: 14 and ethics competence, 2: 278 and gift-giving, 1: 265–266 and multiple relationships, 1: 69 organizational, 2: 220, 297 and religion. See Religion in research, 2: 363–365 risk management, 1: 504 and touch in therapy, 1: 249 training program, and emotional competence, 1: 201–202 vulnerability to authority, 2: 375 in Welfel ethical decision making model, 1: 383 Culture-bound syndromes, 1: 225–227 Culture-centered approach, 1: 234 Current clients, sexualized relationships with, 1: 302 Curricula of training programs, 1: 201 Custody disputes, and child psychotherapy, 2: 11 Custody evaluations consequences of lack of competence in, 1: 171 and family therapy, 2: 40–41 in forensic psychology, 2: 100–101 and high stakes testing, 2: 66 risk management, 1: 497–498 Custom, ethical principles as matters of, 1: 14 Cut scores, test, 2: 46 CWP (Committee on Women in Psychology), 1: 79

451

Index

Cyberspace connections, and boundaries, 1: 266–267. See also Internet; Internet research

Dangerous clients. See Threatening clients Daniel R.R. v. Texas State Board of Education, 2: 136 Data analysis, and production of vulnerability, 2: 381 Data backups, 2: 190 Data disposal, and confidentiality of research, 2: 353–354 Data gathering, and production of vulnerability, 2: 381 Data sharing, and production of vulnerability, 2: 381 Data storage, and confidentiality of research, 2: 353–354 Data withdrawal, due to deception in research, 2: 360–361 Daubert challenges, 2: 95 Daughtridge, R., 1: 497 Davenport, D. S., 1: 196 Davis, T. E., 1: 108 Day, J. D., 1: 78, 102 Dayton, D. D., 1: 163 DDS (Disciplinary Data System), ASPPB, 1: 473–474 De Palma, N., 2: 277 De Vries, R., 2: 310–311 Dearing, R. L., 1: 201 Death confidentiality rights after, 1: 365 interruption in practice due to, 1: 449 of lab animals, 2: 434 Death penalty, determining defendant eligibility for, 2: 67–68 Death row inmates, competency to be executed, 2: 68–69 Debate, framing lab animal research as, 2: 431 Debriefing after deception in research, 2: 360, 392–393, 412–414 and production of vulnerability, 2: 381 Debriefing (Standard 8.08), APA Ethics Code, 1: 65, 2: 412 Decay, practitioner, 1: 492 Deception in research, 2: 401–417 alternatives to, 2: 414 APA ethical standards, 2: 407–408 costs and benefits of, 2: 404 and institutional review boards, 2: 406–407 452

Internet research, 2: 392–393 I/O psychology, 2: 157 methodological and disciplinary implications, 2: 409–414 nature of, 2: 401–406 practical decision making, 2: 415–417 prevalence of, 2: 408–409 reasons for and against use of, 2: 404–406 and responsible conduct of research, 2: 359–361 types of deceptions, 2: 402–404 at various stages of research process, 2: 403 Deception in Research (Standard 8.07), APA Ethics Code, 1: 57–58, 65, 2: 157, 360–361, 408 Deceptive paradoxical techniques, in family therapy, 2: 30 Decision analysis, 1: 106–107 Decision making. See also Ethical decision making APA process for regarding social justice issues, 1: 80 capacity of older adults for, 2: 18–19, 22 by cognitively impaired individuals, 2: 59 competent, by children, 2: 4–6 documentation of, and risk management, 1: 506–507 ethical principles as procedures for, 1: 23 in health care practice, 2: 83–86 informed consent. See Informed consent by parents, 2: 6–7 promoting autonomous, 1: 328–329 regarding deception in research, 2: 415–417 Decision procedures, 1: 38–39 Decision trees, 1: 106, 2: 415–416 Decisional capacity, and informed consent, 1: 327, 2: 347–350 Decisions, personal, in ethics-based confidentiality practice model, 1: 346 Décor, office, 1: 262–264 Deductivism, 1: 32, 33 Defendants competency to be executed, 2: 68–69 competency to stand trial of, 2: 66–67 determining eligibility for death penalty, 2: 67–68 forensic psychologist evaluations of criminal, 2: 99–100 hiring of forensic psychologists by, in civil cases, 2: 100

self-incrimination by in forensic psychology interviews, 2: 107 Defense costs outside policy limits, professional liability insurance, 1: 513 Defensive medicine, 1: 499 Deferential vulnerability, 2: 375 Degrees, for licensure, 1: 459–461 Dehoaxing, 2: 360, 413 Dehumanization, 1: 220–221 Delayed payment, in forensic psychology, 2: 116 Delegation of Work to Others (Standard 2.05), APA Ethics Code, 1: 60, 368, 436, 2: 265 Delegation to subordinates, 1: 436 DeLeon, Patrick H., 1: 85 Deliberate self-injurious actions, 1: 390–391 Deliberation, in Welfel ethical decisionmaking model, 1: 385–386 Delivery method of therapy, and informed consent process, 1: 323 DeMayo, R. A., 1: 184–185 Democratizing Internet research, 2: 395–396 Demographics, ethnic, 1: 217 Denial, psychologist, regarding distress and impairment, 1: 193 Dent v. West Virginia, 1: 454 Deontology versus consequentialism, 1: 14 and deception in research, 2: 406 Kantian. See also Kantianism laboratory animal research, 2: 426 overview, 2: 151 theory of prima facie duties, 1: 20–21 Department of Health and Human Services (DHHS), 1: 72, 2: 339–340 Departmental access, to Internet research, 2: 392 Departmental subject pools, and Internet research, 2: 396–397 Departments, academic, 2: 219–220. See also Ethical academic cultures Departures, in therapy, 1: 248 Deportation, forensic psychologists in cases of, 2: 101–102 Depression, in psychologists, 1: 191–192 Descriptions of Educational and Training Programs (Standard 7.02), APA Ethics Code, 1: 64, 2: 228, 271 Descriptions of Workshops and NonDegree-Granting Educational Programs (Standard 5.03), APA Ethics Code, 1: 62

Index

Descriptive (empirical) ethics, 1: 9, 11 Desensitizing, 2: 413 Design of Education and Training Programs (Standard 7.01), APA Ethics Code, 1: 64, 2: 227–228 Destroying computer files, 2: 190 records, 1: 362–363 Destructive therapeutic relationships, 1: 429–430 Detert, J. R., 1: 114–115 Detroit Edison Co. v. National Labor Relations Board, 2: 51–52 Developing-country contexts, research in, 2: 375 Development of ethics, 2: 221 Developmental factors in emotional competence, 1: 180–181 older adult patients, 2: 15 Developmental model, ACCA, 1: 189–190, 203 Developmental psychology, 2: 278 Deviance, organizational and workplace, 2: 155 Dewey, John, 1: 26 DHHS (Department of Health and Human Services), 1: 72, 2: 339–340 Diagnoses and collaborative assessment, 2: 63 in crisis situations, 1: 269 mentioning in informed consent process, 1: 320 in school versus nonschool psychology, 2: 128 Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision; DSM–IV–TR), 1: 225, 2: 134–135 Didactic purposes, use of confidential information in, 1: 62. See also Education; Ethical academic cultures; Teaching Dietz, Park, 1: 127–128 Difference feminism, 2: 424 Dignity, respect for in APA Ethics Code, 1: 58 in crisis situations, 1: 271 in school psychology, 2: 126 Dilemmas, ethical. See Ethical dilemmas Directorates, APA, 1: 87–88 Disabilities and competence, 1: 153 under IDEA, 2: 133–137 interruption in practice due to, 1: 449 in school versus nonschool psychology, 2: 128

under Section 504/ADAA, 2: 137–139 understanding, for competence in health care practice, 2: 77 Discerning investigators, 2: 336 Disciplinary actions for APA members, 1: 49, 54 and complaint types, 1: 486–489 consequences of deception in research, 2: 411–412 in distress and impairment continuum, 1: 190 by licensing boards, 1: 468–475 and multicultural sensitivity, 1: 103–104 promoting ethical motivation through examples of, 2: 297 risk management to avoid. See Risk management for sexualized relationships, 1: 303 Disciplinary Data System (DDS), ASPPB, 1: 473–474 Disclosure of information. See also Confidentiality after client death, 1: 365 and confidentiality, 1: 337–338 duty to protect or warn. See Duty to protect or warn ethics-based confidentiality practice model. See Ethics-based confidentiality practice model family therapy, 2: 39 in forensic psychology, 2: 105–107 in health care practice, 2: 83 and HIPAA, 2: 359 legally imposed limits of confidentiality, 1: 340–342 nondisclosure laws, 1: 338–340 privileged communications laws, 1: 340 from psychological tests, 2: 50, 52–54 related to research, 2: 354–356 responding to requests for release of records, 1: 361 in school psychology, 2: 131, 139–141 self-disclosure. See Self-disclosure of students, in APA Ethics Code, 1: 64 in supervision, 2: 270 in telehealth websites, 2: 195–196 in treatment of older adults, 2: 18–19 Disclosures. See Standard 4.05, APA Ethics Code Discrimination in APA Ethics Code, 1: 60 APA initiatives regarding, 1: 79, 85–86 legislation regarding, and education, 2: 130, 137–139

regarding religion or spirituality, 1: 285 Discussing the Limits of Confidentiality (Standard 4.02), APA Ethics Code, 1: 4, 61, 71, 2: 186 Discussions to obtain informed consent, 1: 322 Diseases contagious, and duty to protect, 1: 393–394 understanding, for competence in health care practice, 2: 77 Disengagement, moral, 1: 114–115 Dishonesty, academic, 2: 237–245 Disinhibition effect of electronic communication, 1: 395 Disobeying lawful orders, in military, 1: 133–134 Dispensing with informed consent to research, 2: 350–352 Dispensing With Informed Consent to Research (Standard 8.05), APA Ethics Code, 1: 65, 2: 156, 350, 351 Disposal of computer files, 2: 190 data, and confidentiality of research, 2: 353–354 of records, 1: 362–363, 2: 9 Dispositional variables related to violence, 1: 388 Disputes, in legal system, 2: 91–92 Disruptions of therapy, planning for, 1: 361–362 Dissatisfaction with service, and complaints, 1: 490–491 Distance learning, 1: 477–478 Distress, 1: 189–195. See also Emotional competence enhancing emotional competence, 1: 203 prevalence of, 1: 190–192 professionals seeking help, 1: 194–195 seeing others as impaired, 1: 193–194 in students and trainees, 1: 195–196 teaching students about, 1: 200 Distributive justice, issues of, 1: 30 Diverse populations, competence with, 1: 217–235 African Americans (Blacks), 1: 228–229 Asian Americans, 1: 229–230 bias and prejudice, 1: 151–154 culture-bound syndromes, 1: 225–227 ethics and morality, 1: 218–223 453

Index

Diverse populations, competence with (continued) future diversity challenges, 1: 234–235 Hispanics, 1: 230–231 linguistic competence, 1: 231–232 multiculturalism. See Multiculturalism religious clients. See Religion sexual minorities, 1: 232–233 Diversity. See also Diverse populations, competence with within APA, 1: 89 APA initiatives, 1: 84, 85–86 in child psychotherapy, 2: 11–13 competence in human, 1: 151–154 and emotional competence of students and trainees, 1: 196 in ethical academic cultures, 2: 230–231 in health care practice, 2: 77 multicultural. See Multiculturalism Divided loyalty conflicts, 1: 123. See also Institutional ethical conflicts Division 9, Society for the Psychological Study of Social Issues (SPSSI), APA, 1: 86–87 Division 17, Society of Counseling Psychology, APA, 1: 86 Divisions, APA, 1: 80, 86–87 Divisions for Social Justice (DSJ), APA, 1: 86 Divorce and APA ethics consultation, 1: 51 and child psychotherapy, 2: 9, 11, 12 forensic psychologists in cases of, 2: 101 and multiperson therapy, 2: 40–41 termination of child therapy in cases of, 1: 427–428 Doctoral degrees, 1: 459–460, 2: 97 Doctor–patient relationship, in military psychology, 1: 132 Documentation. See also Record keeping in APA Ethics Code, 1: 63–64 high-risk patients, 1: 409, 412–413 of initial informed consent process, 1: 348–349 of research, 2: 324 of research results, 2: 362 risk management, 1: 506–507 of supervision, 2: 267 in Welfel ethical decision-making model, 1: 386 Documentation of Professional and Scientific Work and Maintenance of Records (Standard 6.01), APA

454

Ethics Code, 1: 63, 72, 2: 324, 362–363 Doll, B., 1: 175 Domestic abuse, 1: 50–51, 394, 2: 36–37. See also Duty to protect or warn; Mandatory reporting laws Dovidio, J. F., 1: 219–220, 223 Drake, E. B., 2: 54 Drake, R., 2: 277 Drasgow, F., 2: 54–55 Dress, and boundaries, 1: 262–264 Drink, and boundaries, 1: 264 Driving duty involving clients at risk for impaired, 1: 393 privileges of older adults, psychologist role in limiting, 2: 21–22 Dropout, Internet research, 2: 393 DSJ (Divisions for Social Justice), APA, 1: 86 DSM–IV–TR (Diagnostic and Statistical Manual of Mental Disorders, 4th ed., text revision), 1: 225, 2: 134–135 Dual loyalty/agency conflicts, 1: 123. See also Institutional ethical conflicts Due process clinical supervision, 2: 270–271 and procedures in disciplinary action, 1: 471 Due process clause, 14th Amendment, 2: 129 Dunton, B. C., 1: 221 Duplicate publication of data, 2: 321–323 duplicate publication, 2: 322 piecemeal publication, 2: 321–322 reanalysis of published data, 2: 322–323 submitting manuscripts for publication, 2: 323 Duplicate Publication of Data (Standard 8.13), APA Ethics Code, 1: 65–66, 2: 321 Dusky v. United States, 2: 67 Duties. See also Deontology to client after termination of therapy, 1: 426 of clients, 1: 423–424, 429 in Kantianism, 1: 18, 19, 243–244 prima facie, 1: 20–21 Duty of care after termination of therapy, 1: 427 when beginning psychotherapy, 1: 420 Duty to protect or warn, 1: 377–396 about threats to therapist, 1: 164

and APA ethics consultation, 1: 50–51 clients operating motor vehicles or heavy equipment, 1: 393 clients who are dangerous to self, 1: 389–391 in coaching, 2: 178–179 and confidentiality, 1: 341, 351 in decision-making models, 1: 113 developments since Tarasoff, 1: 379–381 disclosure of confidential research, 2: 355 electronic communication, 1: 394–395 ethical decision making in potential situations involving, 1: 381–389 as ethical dilemma, 1: 45 guidelines, 1: 113 homicide–suicide, 1: 392 intimate partner violence, 1: 394 need for familiarity with laws regarding, 1: 71 recommendations, 1: 396 in school versus nonschool psychology, 2: 128 self-care, importance of, 1: 395–396 serious contagious diseases, 1: 393–394 Tarasoff case, 1: 377–379 in telehealth, 2: 193–194 Dynamic IP addresses, 2: 388 Dysfunction, family, and emotional competence, 1: 180–181 Dysfunctional motivators to becoming therapist, 1: 180–181, 199

Eagly, A. H., 1: 223 eBay, sale of psychological test materials on, 2: 49 Eberhardt, J. L., 1: 220–221 Ecological model of human development, 1: 202–204, 233 Economic risk, from research, 2: 379 Editor’s Handbook: Operating Procedures and Policies for APA Publications (APA), 2: 362 Education. See also Ethics education; Public education about confidentiality, 1: 357 APA ethics program, 1: 49 competence in teaching, 1: 166 and competence in treatment of older adults, 2: 17

Index

confidentiality considerations, 1: 365 consumer, regarding sexualized relationships, 1: 304 and development of social justice orientation, 1: 92–93 disparities in, APA initiatives regarding, 1: 86 distance learning, 1: 477–478 diversity training, 1: 222 educator–student sexualized relationships, 1: 297, 298, 301, 303 emotional competence and well-being during, 1: 195–202 enhancing emotional competence through, 1: 202–203 ethical academic cultures. See Ethical academic cultures ethics. See Ethics education focus on self-care in, 1: 188 in forensic psychology, 2: 97–99 I/O psychologists as educators, 2: 156 as licensure requirement, 1: 459–461 maintaining boundaries with students, 1: 167 mandatory continuing professional development, 1: 465–466 recordkeeping considerations, 1: 365 records, under FERPA, 2: 133 regarding boundaries, 1: 272 reviewers as educators, 2: 329 school psychology. See School psychology teaching multiculturalism, 1: 224 Education Advocacy Trust, 1: 88 Education and Training (Section 7), APA Ethics Code, 1: 64, 2: 227–228 Education Directorate, APA, 1: 87, 88 Educational experts, 2: 94–95 Educational services, online, 2: 209 Educational tests, standardized, 2: 64–66 Educational value, of manuscript evaluation, 2: 329 Edutainment, 2: 206 EEG biofeedback, 1: 169 Efficiency of online research, 2: 396 Egget, D., 1: 163 Egoism ethical, 1: 11–12, 13, 2: 150–151 psychological, 1: 11, 13 E-health. See Telehealth Elderly patients. See Older adult patients Electronic media, in research, 2: 353. See also Internet research; Telehealth Electronic records, 1: 360

Electronic transmission, consent via, 2: 341–342 Ellis, M. V., 2: 266 Elman, N., 1: 195, 198, 200, 202, 464–465 E-mail addresses, as personal identifiable information, 2: 387 communications about violent intent through, 1: 394–395 privacy and confidentiality of Internet research, 2: 392 privacy of, 2: 187–190 in records, 1: 507 telehealth. See Telehealth therapy conducted via, and informed consent, 1: 321, 323 Emancipated minors, and consent to research, 2: 346 Emergency coverage, for psychologist unavailability, 1: 448–449 Emergency resources, telehealth, 2: 193–194 Emergency situations, 1: 59, 161–162 Emotional competence, 1: 175–207 in academic setting, 2: 246–253 distress and impairment, 1: 189–195 ethical implications of, 1: 175–179 and high-risk patients, 1: 404–405 preserving and enhancing, 1: 202–207 in risk calculation, 1: 492–493 of students and trainees, 1: 195–202 threats to, 1: 179–189 Emotional disturbance, 2: 128, 135 Emotional harm, from research, 2: 379 Emotional isolation of therapist, 1: 185–186 Emotional pollution, 1: 493 Emotional problems, in psychologists, 1: 182 Emotions (of psychologist) competence. See Emotional competence emotional reactions in therapy, 1: 185–186 in ethical decision making, training regarding, 1: 199 evoked in therapy, 1: 182–183, 200 focus on in consultations, 1: 503–504 in lab animal research, 2: 434 managing in academic setting, 2: 246–247 psychologists needing help, 1: 188–189 Empathy, in academic setting, 2: 247

Empirical (a posteriori) approaches, 1: 32, 33 Empirical (descriptive) ethics, 1: 9, 11 Empirical research, vulnerable populations identified by, 2: 373 Empiricists, logical, 1: 12 Employees delegation to subordinates, 1: 436 firing, 1: 435–436 hiring, 1: 435–436 versus independent contractors, 1: 437 in I/O psychology research, 2: 156–157 and office policies, 1: 434–435 Employment agreements, 1: 435–436 Empowered collaboration, 1: 328–329, 411–412. See also Informed consent Empowerment, and consent, 2: 349–350 Encryption e-mail, 2: 189 of files on computer, 2: 189–190 End of treatment, ethical issues at, 1: 424–430. See also Terminating therapy client-initiated termination, 1: 426–428 overview, 1: 417–419 termination by mutual agreement, 1: 424–426 therapist-initiated termination, 1: 428–430 End-of-life situations confidentiality and recordkeeping, 1: 364–365 older adult patients facing, 2: 22 and rational suicide, 1: 391 Endorsements, testimonial, 1: 439–441 Enforcement, APA Ethics Code, 1: 54, 55. See also Disciplinary actions Enforcement Rule, HIPAA, 1: 339 Enhanced scrutiny, of FMHAs, 2: 107–108 Enhancing Diversity in APA task force, 1: 84 Enrichment, environmental, in lab animal research, 2: 435–436 Entry-level psychology practice, 2: 77–78 Environment, work/office. See also specific work settings by name and boundaries, 1: 262–264 confidentiality considerations, 1: 365–368 and emotional competence, 1: 202–203 health care practice, 2: 76–77

455

Index

Environment, work/office(continued) record keeping considerations, 1: 365–368 and stress, 1: 186–187 Epistemology, moral, 1: 35–36 EPPP (Examination for Professional Practice in Psychology), 1: 462–463 Epstein, R. M., 1: 175 Equal protection clause, 14th Amendment, 2: 129 Equilibrium, reflective, 1: 21, 32–34 Equity, 1: 75, 2: 152 Equivalence of automated and Internet testing, 2: 55–56 Erickson, S. H., 1: 113 Erosion of competence, 1: 162 Erotic touch, 1: 248–249 Errors, medical, 1: 486 Esquilin, M., 1: 220 Essences, in teleology, 1: 14–15 E-therapy. See Telehealth Ethical (moral) motivation, 2: 222, 280–282, 283, 296–297 Ethical (moral) rules, in ethical decision making, 1: 25–26, 28 Ethical absolutism, 1: 12 Ethical academic cultures, 2: 219–257 academic integrity, 2: 237–239 and ethical motivation, 2: 282 ethical responsibilities of academic psychologists, 2: 223–232 and ethical sensitivity, 2: 291 ethics as manifestation of institutional culture and climate, 2: 219–223 explicit and implicit values affecting, 2: 233–237 personal and interpersonal ethics in, 2: 245–253 positive ethical culture and teaching– learning process, 2: 239–245 self-assessment checklist, 2: 253–257 Ethical altruism, 1: 12 Ethical awareness, in responsible conduct of research, 2: 336–337 Ethical ceiling, 1: 148–149, 311–313 Ethical character. See Moral character Ethical commitment, 2: 336, 363–364 Ethical compromise, in FMHAs, 2: 111–112 Ethical decision making, 1: 99–119 in academic cultures, 2: 222 advanced analysis of premises, 1: 118 autonomous decision making as problematic, 1: 115 456

decision-making dilemmas, 1: 115–118 defining, 1: 100 and emotional competence, 1: 178 in ethical practice of psychology, 1: 44–48 and ethical reasoning, 2: 280 intellectual movements in, 1: 100–103 Introduction and Applicability section of Ethics Code, 1: 56 in I/O psychology, 2: 161–164 in laboratory animal research, 2: 429–432 models of. See Models of ethical decision making; Multilevel model of ethical decision making multicultural, and goodness-of-fit ethics, 2: 364–365 multicultural sensitivity, 1: 103–104 older adult patients, 2: 24–26 in potential duty-to-protect situations, 1: 381–389 regarding deception in research, 2: 415–417 in responsible conduct of research, 2: 336–338 in training regarding sexualized relationships, 1: 305–306 Ethical deontology. See Deontology; Kantianism Ethical dilemmas in academic cultures, 2: 221, 223, 234–235, 246–247 conscience, 1: 4–5 decision making models applied to specific, 1: 112–114 decision making regarding. See Ethical decision making defined, 1: 100 Introduction and Applicability section of Ethics Code, 1: 56 in I/O psychology, 2: 153–154 versus moral dilemmas, 2: 151 overview, 1: 4 personal values, 1: 4 in police psychology, 1: 126 and principles of Ethics Code, 1: 45 professional values, 1: 5 and promotion of ethical reasoning, 2: 292–294 Ethical egoism, 1: 11–12, 13, 2: 150–151 Ethical floor, 1: 148–149, 311–313 Ethical foundations of psychology, 1: 3–40 case examples, 1: 3

conscience, 1: 4–5 ethical dilemmas, 1: 3–5 model of ethical decision making. See Multilevel model of ethical decision making normative ethical theories, 1: 14–24 normative ethics, overview of, 1: 10–14 personal values, 1: 4 philosophical ethics, field of, 1: 8–10 professional codes of ethics, 1: 5–8 professional values, 1: 5 Ethical hedonism, 1: 13, 16 Ethical judgment approaches to, 2: 151 making in I/O psychology, 2: 161–164 Ethical leadership, organizational, 2: 154 Ethical objectivism, 1: 13 Ethical Position Questionnaire, 2: 289 Ethical principles. See also specific principles by name defined, 1: 101 in Ethics Code. See General Principles, APA Ethics Code guiding institutional review boards, 2: 338 in I/O psychology, 2: 151–153 justification, 1: 38 in Kantian contractarianism, 1: 21 as matters of custom, 1: 14 moral basis for competence, 1: 148–149 in multilevel model of ethical decision making, 1: 25–26, 27, 28–30 pluralism of, 1: 32 rankings approach to, 1: 32 reflective judgment model, 1: 36–37 using to promote ethical sensitivity, 2: 287–288 in Welfel ethical decision-making model, 1: 385 Ethical Principles of Psychologists and Code of Conduct, APA. See Ethics Code, APA Ethical reasoning in I/O psychology, 2: 159–160, 163–164 versus objectivism and subjectivism, 2: 150 promoting in ethics education, 2: 291–293 in Rest model, 2: 280 Ethical relativism, 1: 12, 13 Ethical resoluteness, 2: 282–283, 297–299 Ethical sensitivity. See Moral sensitivity

Index

Ethical skepticism, 1: 12, 13 Ethical Standards, APA Ethics Code. See also specific standards by name boundaries, 1: 245–246 confidentiality, 1: 335–338 deception in research, 2: 407–408 institutional ethical conflicts, 1: 123–127 in Introduction and Applicability section, 1: 55–56 overview, 1: 58–67 scholarship, 2: 309 Ethical subjectivism, 1: 12–13 Ethical theories justification, 1: 38 in metaethics, 1: 31–32 in multilevel model of ethical decision making, 1: 25–26, 30–31 normative, 1: 14–24 in principlism, 1: 34–35 Ethical willingness, 1: 114 Ethics acculturation, 1: 495–496, 498, 500–502, 2: 221, 288–289 Ethics adjudication, APA ethics program, 1: 49, 55 Ethics autobiographies, 2: 289 Ethics cascade, in laboratory animal research, 2: 430 Ethics Code, APA, 1: 54–67 adequacy of, 1: 7–8 advertising, 1: 437–438 APA ethics consultations, 1: 50–52 boundaries, relevant guidance about, 1: 245–246 and boundaries in crisis work, 1: 268–271 compared to HIPAA, 1: 342–343 confidentiality, 1: 36 defining ethics, 1: 44–45 development of, 1: 5–6 diversity considerations in child psychotherapy, 2: 11 duty to protect or warn, 1: 380–381 ethical decision making, 1: 45, 46–48, 99 ethical dilemmas, 1: 4 Ethical Standards. See Ethical Standards, APA Ethics Code; specific standards by name evolution of, 1: 52–53 forensic psychology, 2: 93 General Principles. See General Principles, APA Ethics Code; specific principles by name history of, 1: 54–55

informed consent, 1: 311–313 institutional ethical conflicts, 1: 123–127 Introduction and Applicability section, 1: 55–56 I/O psychology, 2: 149 and law, 1: 70–72 multilevel model of ethical decision making, 1: 27, 28 multiple relationships under, 1: 68–69 personal issues in supervision, 2: 269–270 Preamble, 1: 56–57 protections for lab animals, 2: 428 rational suicide, 1: 391 requirements for institutional approval of research, 2: 339 scholarship, 2: 309–311 school psychology, 2: 125–126 sexualized relationships, 1: 296–297 social justice, 1: 76–77 teaching to promote ethical sensitivity, 2: 284–287 telehealth, 2: 186 testimonial endorsements, 1: 439–440 Ethics Code Task Force, 1: 52 Ethics codes. See Codes of ethics; Ethics Code, APA Ethics Committee, APA adjudication of complaints, 1: 455–456 complaints regarding lack of competence, 1: 172 defined, 1: 48 ethical standards, 1: 58–59 ethics adjudication, 1: 49 ethics education, 1: 49 methodology of, 1: 33–34 psychologists in military interrogations, 1: 53 Ethics committees and enhancement of emotional competence, 1: 204 relationship between licensing boards and, 1: 455–456 vulnerable populations, research with, 2: 372–373 Ethics consultation, APA ethics program, 1: 49–52 Ethics education, 2: 277–301 in APA ethics program, 1: 49 continuing education, 2: 299–300 ethical motivation, 2: 296–297 ethical reasoning, 2: 291–293

ethical resoluteness, 2: 297–299 ethical sensitivity, 2: 284–290 ethics texts for professional psychology courses, 2: 301 identifying time for, 2: 235–236 regarding sexualized relationships, 1: 304–306 relationship of to risk management, 2: 283–284 Rest’s model as organizing framework for, 2: 279–283 Ethics of care, 1: 22, 244–245 Ethics Office, APA, 1: 48–52 Ethics program, APA, 1: 48–54 ethics adjudication, 1: 49, 55 ethics consultation, 1: 49–52 ethics education, 1: 49 special projects and issues, 1: 52–54 Ethics rounds, 2: 289 Ethics subdivisions, 1: 9–10 applied ethics, 1: 10 descriptive ethics, 1: 9 metaethics, 1: 10 normative ethics, 1: 9–10 professional ethics, 1: 10 Ethics texts for professional psychology courses, 2: 301 Ethics-based confidentiality practice model, 1: 343–357 avoiding avoidable disclosures, 1: 353–356 obtaining truly informed consent before voluntary disclosure, 1: 349–350 overview, 1: 343–345 preparation, 1: 345–357 record keeping, 1: 357–358 responding ethically to legal demands for disclosure, 1: 350–353 talking about confidentiality, 1: 356–367 telling clients truth up front, 1: 347–349 Ethnic demographics, in U.S., 1: 217. See also Diverse populations, competence with Ethnic differences, interface of psychology with, 1: 218–222 Ethnic minorities, in APA, 1: 85, 89 Ethnicity, bias based on, 1: 152–153 Ethnocentric monoculturalism, 1: 219 Etiquette-based medicine, 1: 497 Eudaimonia, in Aristotelian ethics, 1: 14–15 Euthanasia, of lab animals, 2: 434 457

Index

Evaluations. See also Assessment in academic courses, 2: 228 clinical supervision, 2: 266–268, 269–270 with external consequences, and risk management, 1: 502 objective, in possible duty to protect and warn cases, 1: 386 in teaching, 1: 166 Evaluators, forensic psychologists as, 2: 92–93 Evans, J., 1: 114 Even the Rat Was White: A Historical View of Psychology (Guthrie), 1: 218–219 Event model of informed consent, 1: 321, 324 Evidence-based practice, competence in, 1: 157–158 Evidentiary privilege, 2: 132 Evolutionary psychology, 2: 162 Examination for Professional Practice in Psychology (EPPP), 1: 462–463 Examinations cheating on, 2: 243–244 of expert witnesses, 2: 95 as licensure requirement, 1: 462–464 Examining experts, 2: 95–96 Exceptions to confidentiality, abuse of legally allowed, 1: 356 to guardian permission, in research involving children, 2: 346–347 in privilege laws, responding ethically to, 1: 351–352 to psychologist–client privilege, 1: 341 Exchange theory (contract theory), 1: 7 Exclusions, professional liability insurance, 1: 513 Execution (competency to be executed), 2: 68–69 Executive coaching. See Coaching Exempt research, from institutional review boards, 2: 340 Exemption from licensure laws, 1: 458–459 Expectations of clients regarding health promotion services, 2: 23 setting in child psychotherapy, 2: 7–8 Expedited review, by IRBs, 2: 340 Experience, supervised, as licensure requirement, 1: 461–462 Experimental approaches, communicating about, 2: 203 458

Experimenter–participant artifact problem, 2: 401 Expert witnesses, 2: 93–97 defined, 2: 93–94 examining experts, 2: 95–96 reviews, rebuttals, and second opinions, 2: 96–97 testimonial, educational, or pure experts, 2: 94–95 treating experts, 2: 96 Explaining Assessment Results (Standard 9.10), APA Ethics Code, 1: 66, 2: 63 Explicit curricula of training programs, 1: 201 Explicit values affecting ethical academic culture, 2: 233–237 Exploitation decision-making models, 1: 114 and multiple relationships, 1: 68–69 in sexualized relationships, 1: 192 Exploitative Relationships (Standard 3.08), APA Ethics Code, 1: 60, 246, 2: 389 Expulsion, from APA, 1: 49, 55 Extensions boundary, 1: 246 of therapy sessions, 1: 262 External consequences, of psychological testing, 2: 64–69 External pressure to violate ethical standards, 2: 154 External stressors, and emotional competence, 1: 182 Extramarital relationships, and couples therapy, 2: 41 Extremists, animal, 2: 436

Fact witnesses, 2: 93 Faculty in ethical academic cultures. See Ethical academic cultures ethics education by. See Ethics education faculty–student relationships, 2: 248–249 influence of on students emotional competence, 1: 201–202 Faddism, 1: 160 Failure, treatment. See High-risk patients Failure to give authorship credit, 2: 316 Failure to pay, client, 1: 443–446 Fair share model of payment for research, 2: 377–378

Fair use doctrine, 2: 51 Fairness in academic cultures, 2: 250 in APA Ethics Code, 1: 58 in I/O psychology, 2: 152 social justice, 1: 77 Faiths. See Religion Falconer, J. A., 2: 80 False risk management procedures, 1: 499–500 Families diversity considerations in child psychotherapy, 2: 11–12 family–work integration policies, 1: 84 homicide–suicides in, 1: 392 involvement in treatment of older adults, 2: 18 of origin, and emotional competence, 1: 180–181 responsibility to, in school psychology, 2: 127 secrets of, in child psychotherapy, 2: 13 in team-based health care, 2: 85 therapist social co