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Ethical, Legal & Professional Issues Linda R. Shaw, Ph.D, Fall, 2006 [email protected] Morality Values Duties Morality Personal Morals Societal Morals Group Morals Morals vs. Ethics Ethics = systematic reflection on morality Ethics = applied morals Ethical Decisions - most difficult when ethical dilemmas exist Ethics - Definition “Do the right thing” (Spike Lee) Categorization of Moral Theories Relativism vs. Absolutism Micro ethics vs. Macro ethics Deontological vs. Teleological Relativism vs. Absolutism Relativism What is right and wrong varies from person to person and culture to culture There are no absolute moral standards Absolutism There are absolute moral standards that are both universal and objective Micro ethics vs. Macro ethics Micro ethics The happiness of the individual is the highest good The good of the group = the good of the individuals who comprise the group Macro ethics The happiness of the group itself (city, state, nation or race) is the highest good Deontological vs. Teleological Theories Deontological Theories The correct way to proceed is to learn basic duties and rights of individuals or groups and act accordingly • e.g. Kant’s Categorical Imperative Teleological Theories Sometimes adherence to duty leads to consequences contrary to well-being. • E.g. Utilitarianism ( Bentham, Mill) Ethical Principles Beneficence Autonomy Nonmaleficence Justice Fidelity Beneficence Comes with risks General Societal Obligations? Strength of Duty Factors Significant need Ability to assist probability of success Benefit outweighs risk Role-related obligation Risks of Beneficence: Paternalism Undermines dignity promotes dependence conflicts with rights to autonomy When is paternalism justified? Competency is seriously limited C has ability to promote Cl’s best interests Cl’s interests are considered primary Risk for loss must be real & significant Autonomy 3 conditions necessary for autonomy What & how much should one disclose? Voluntariness Competence Full Disclosure The “reasonable person” standard Individualized standard Does client/patient truly understand? Informed Consent enables client to make autonomous choices minimizes harm/risk by enabling cl to protect self encourages c & cl to discuss issues openly & plan together Promoting Autonomy Assess Teach Encourage choice wherever & whenever possible Nonmaleficence Beneficence vs. Nonmaleficence Beneficence: Doing Good Nonmaleficence: Avoiding Harm to another by • not directly causing harm • avoiding placing others at risk for harm “Above all, do no harm” - role obligations Obligation to prevent harm is stronger than obligation to do good In rehab, must take some risks for later benefit Negligence: Failure to act or to exercise due care Failure to exercise due care toward another Due Care = Proper training + Proper skills + Diligence Includes both deliberately & carelessly imposed risks Types of Negligence Culpable ignorance Personal Incompetence Environmental factors Justice Most problem in conditions of scarcity and competition Actions based on justice (examples) avoiding discrimination avoiding exploitation distributing resources fairly Material principles of Justice Equal shares need motivation/effort contribution free market exchange fair opportunity FUNDAMENTAL NEED: person will be harmed if need is not met - takes priority Quantitative criteria of Distributive Justice Cost-effectiveness Limitations: Quantity isn’t everything (can’t quantify human dignity & worth Efficiency ignores common values e.g. hospice, etc. Fidelity Focuses on relationships Caregivers make implicit promises of trustworthiness Asymmetric relationship increases duty to fidelity Confidentiality Assumed by your willingness to enter into therapist-patient relationship Circumstances under which confidentiality can be broken clear & imminent danger to self or others others as determined by law (e.g. child abuse, elder abuse) court actions/subpoena Importance of disclosure Dual Relationships Sexual, family, friend, business, supervisor, etc. Pt. Needs to be free of your problems may impair objectivity & professional judgement Fidelity in Professional Relationships Fidelity to employer Fidelity to profession Fidelity to colleagues/team Principles vs. Standards Principles: General Guidelines to govern one’s actions Standards: Generally derived from principles and prescribe appropriate behavior in a given circumstance Rules Laws Codes Ethical Codes Assist counselors in deciding what to do when situations of conflict arise Help clarify the counselor’s responsibility to the client and protect the client from the counselor’s failure to fulfill these responsibilities Give the profession a means of self governance Ethical Codes of Interest to Rehabilitation Counselors Code of Professional Ethics for Rehabilitation Counselors (CRCC) American Counseling Association (ACA) International Association of Rehabilitation Professionals (IARP) American Psychological Association (APA) National Association of Social Workers (NASW) American Association for Marriage & Family Therapy (AAMFT) Association for Specialists in Group Work (ASGW) Code of Professional Ethics for Rehabilitation Counselors CRCC Ethics Committee initiated 2001 update due to • Changes in practice • Changes in technology • Experience of Ethics Committee Code Structure Table of Contents Preamble Enforceable Standards of Ethical Practice 11 Sections (A-K) Rules within each Section Sections of Code A The Counseling Relationship B Confidentiality C Advocacy and Accessibility D Professional Responsibility E Relationships with Other Professionals F Evaluation, Assessment and Interpretation Sections of Code continued G Teaching, Training, and Supervision H Research and Publication I Electronic Communication and Emerging Applications J Business Practices K Resolving Ethical Issues Consultation Model Code of Ethics Supervisor Colleagues Experts Licensure &/or Certification Boards Questions to Ask Have I Consulted with the Code? Others? Have I Documented Everything? What if this was the Newspaper Headline? What if this was the one I most love? Ethical Dilemma Choice must be made between two or more courses of action Significant consequences for any course of action Each action can be supported by ethical principle(s) Ethical principle supporting unchosen course of action is compromised Ethical Decision Making Model for Rehabilitation Counselors Review the situation & determine the possible courses of action List the factually based reasons supporting each course of action Identify the ethical principles that support each action List the factually based reasons for not supporting each course of action Identify the ethical principles that would be compromised if each action were taken Ethical Decision Making Model continued Formulate a justification Rubin et al. (1990) The Eclectic DecisionMaking Model of Ethical Behavior Tarvydas (1998) Stage I: Interpreting the Situation through Awareness and Fact-Finding >Enhance sensitivity and awareness >Dilemma vs. issue? >Determine major stakeholders & their ethical claims in the situation >Engage in the fact-finding process Stage II: Formulating an Ethical Decision Review the dilemma Determine what ethical codes, laws, principles, and institutional policies and procedures apply Generate possible and probable courses of action Consider potential positive and negative consequences Select the best ethical course of action Stage III: Selecting an Action by Weighing Competing, Nonmoral Values >Engage in Reflective Recognition and Analysis of Personal Competing Values >Consider Contextual Influences on Values Selection at the Collegial, Team, Institutional, and Societal Levels Stage IV: Planning and Executing the Selected Course of Action Figure out a reasonable sequence of concrete actions to be taken Anticipate & work out personal & contextual barriers to effective execution of the plan, and effective counter-measures for them Carry out and evaluate the course of action as planned Processing Ethical Complaints The CRCC Ethics Committee Process and Procedures for Processing Ethical Complaints Commission on Rehabilitation Counselor Certification (CRCC) CRC Credential Assures certified RCs meet minimum ed, experience and competency standards Consumer protection Accountability CRCC Ethics Committee Promotes Ethical Practice among Certified Rehabilitation Counselors CRCC Code of Ethics Education Advisory Opinions Self Governance/Judicial Function Reporting Ethical Violations Who Reports? The Ethics Complaint Form Steps in the Process The Ethical Complaint Process Flowchart Details actions of Ethics Committee and Administrative Office Blueprint for processing complaints Suggested Procedures for Initial Case Review (Tarvydas) Summarize charge If true, as alleged, would there be an ethical violation? Identify specific Ethical Canon(s) and Rule(s) Accept complaint if violation may have occurred What additional info/evidence is needed? Ethics Committee Actions Letter of Instruction Reprimand Probation Suspension Revocation Legal/Ethical Interface Understanding the Legal Issues impacting Rehabilitation Counselors Types of Procedural Law Civil Law Criminal Law Mental Health Law Civil Law Lawsuits brought by private parties against each other Losing means financial loss Burden of Proof: Fair preponderance of the evidence Burden is on Plaintiff Criminal Law Disputes between state & persons Losing means loss of liberty Burden of Proof: Beyond a reasonable doubt Burden is on the State Mental Health Law Regulates how state helps mentally ill persons (commitment hearings) Considered type of Civil Law Conflict: right to freedom vs. state’s resp. to protect those unable to protect selves Burden of Proof Because psych is too inexact to meet reasonable doubt, must meet level of reasonable medical certainty test Clear & convincing evidence Burden is on those bringing the proceedings Case Law Tarasoff v. Regents of the University of California Wyatt v. Stickney, Donaldson v. O’Connor & O’Connor v. Donaldson: Requires therapists to protect foreseeable victims of dangerous clients (Duty to Warn or Duty to Protect). Duty to treat involuntarily confined mental patients or release them Caesar v. Mountanos The client is the sole holder of the psychotherapist-client privilege Therapists are regulated by Laws at three levels: Federal State Statute Regulations Local County/City Florida Law Themes Confidentiality Mandated Reporting of Abuse or Neglect of: Allowable Exceptions to Confidentiality Aged persons Disabled adults Children Children & Families (confidentiality, custody,etc) PsychotherapistPatient Privilege Involuntary Admission (Baker Act) Guardians and Substitute decision-making Ethics and The Law Mandatory Reporting Discretionary Reporting Duty to Protect Ethics and The Law Linda R. Shaw, Ph.D., CRC, LMHC Associate Professor & Graduate Coordinator University of Florida Dept. of Rehabilitation Counseling This presentation provides general guidance only. All questions related to Florida Law should be directed to an attorney specializing in mental health law. Presumption of Confidentiality Confidentiality is necessary to preserve: Client privacy, dignity & respect A relationship characterized by trust Client Autonomy (freedom to decide with whom information will be shared) Florida LMHCs are included in Testimonial Privilege Law – Cl. has right to keep confidential communications from being disclosed in a legal proceeding (Fla Statute 90.503). Rationale for Exceptions to Confidentiality Must balance client’s right to privacy & autonomy with competing societal interests Exceptions may be either Mandatory – Counselor shall report Permissive – Counselor may report Whether an exception is permissive or mandatory depends on the importance of the societal interest at stake Mandated Exceptions to Confidentiality Reporting Generally referred to as “Mandated Reporting” Requires that certain information applying to particularly vulnerable groups be disclosed to ensure their safety & well-being Mandated Reporting Required of all persons who, in a professional capacity, come into contact with individuals comprising three groups: Groups include: Children Elderly Disabled Adults Mandated Reporting Children (Fla. Statutes 39.01 and 827.03) Must report any incident of known or suspected abuse, abandonment or neglect Definitions: • Abuse: “any willful act or threatened act that results in a physical, mental or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired” (Fla. Statute 39.01) Also includes the active “encouragement of any person to commit an act that results or could reasonably be expected to result in physical of mental injury to a child” (Fla Statute 827.03) Mandated Reporting Children (Fla. Statutes 39.01 and 827.03) Must report any incident of known or suspected abuse, abandonment or neglect Definitions: • Neglect: a caregiver’s failure to (1) provide a child with necessary care, supervision, and services and (2) to make a reasonable effort to protect a child from abuse, neglect or exploitation (Fla Statutes 39.01 and 827.03). • Abandonment: when a parent sufficiently fails to support and nurture a child so as to evince a willful rejection of parental obligations (Fla. Statute 39.01[1]). Mandated Reporting Children Fla. Statutes 39.01 and 827.03 list specific examples of situations that would constitute abuse and/or neglect – e.g. • Cuts, bites, burns, scalding • Excessively harsh discipline likely to result in physical injury • Failure to provide child with adequate food or clothing Mandated Reporting Elders and Disabled Adults (Fla. Statute 415) Definitions: Abuse: the “nonaccidental infliction of physical or psychological injury or sexual abuse” (Fla Stat. Ch. 415.102[1]) Neglect: “the failure or omission . . . To provide care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person.”(Fla. Stat. Ch. 415.101[2]). Exploitation includes “financial exploitation and misuse of funds” (Fla. Stat. Ch. 415.101[2]). Mandated Reporting Standard for reporting Must report if the mandated reporter “knows or has reasonable cause to suspect” that harm is occurring or has occurred. Timing of report As soon as mandated reporter has reasonable cause to suspect Florida Abuse Hotline Department of Children and Famlies Contact Information: ServicePhone: (850) 487-4332 Suncom: 377-4332 Toll Free: (800)962-2873 Liability Failure to report (e.g. Fla. Statute 491) Possible criminal sanctions – “knowingly & willfully” Civil sanctions Professional discipline Release from liability (Fla. Statute 39.203, 415.111) No civil or criminal sanctions attach when report is made in good faith Permissive Reporting Allows counselor to exercise discretion and to violate confidentiality under certain conditions: Permissive Exceptions to Confidentiality Client consent Treatment emergencies Facilitation of Treatment Provision of mental health services Peer & administrative review The legal system Research Public safety Exceptions to Confidentiality to Protect the Public Safety Florida and the Tarasoff Decision Tarasoff v. California Board of Regents Created a duty to protect identifiable 3rd party Florida is not a Tarasoff state Florida Laws related to public safety Confidentiality may be waived when “there is a clear and immediate probability of physical harm to the patient or to the society”(Fla. Statute 491.0147)” Psychiatrists have the option to to disclose when the patient has made an “actual threat” to “physically harm” an “identifiable victim” (Fla Statute 455.671) Florida Laws related to public safety Mental health counselors may disclose to a HIV positive patient’s sexual or needle-sharing partner when Patient has disclosed the identity; and Patient has refused to notify the partner nor will he/she refrain from high-risk activity (Fla Statute 455.674) Protections against Malpractice Abide by the Law of No Surprises Informed Consent Professional Disclosure Professional Disclosure The nature & purpose of the services provided Risks and Benefits Alternatives to service provision Information about the procedures and duration of counseling Limitations on confidentiality Client’s right to make complaints and/or discontinue services Logistics of counseling (Making & canceling appointments, etc.) What to do in an emergency Policies and procedures regarding fees Protections against Malpractice Know your legal and ethical responsibilities Codes of Ethics Statutes & Regulations Consult Allows for “reality testing” Establishes standard for “reasonable” care Establishes evidence for reasonable & prudent action Document If its not written down, it didn’t happen Never alter documentation! Insure against malpractice Anyone can be sued at any time Institution liability insurance may not be adequate Available through professional associations Professional Disclosure Professional Disclosure: The act of sharing the information needed to understand the nature and characteristics of the counseling process, toward the goal of furthering informed, autonomous decision making Professional Disclosure: Informed Consent: The obligation to ensure that the consumer understands all information pertinent to any choices he or she must make throughout the course of treatment Counseling Guidelines Describes the logistics of how the rehabili5tation process works How to approach Disclosure Individual vs. Group Written vs. Oral or Both Low Tech vs. High Tech Information Imparting vs. Information Sharing A one-way street or a two-way street? When/how does the consumer orient you? Ensuring understanding – short term and long term What to include? Varies by agency, state law, needs of consumer How much is enough? Too much? Accessibility of Information What to include? Goals of the Agency The Rehabilitation Process Services available What the agency can do What the agency can’t do Eligibility Criteria & Process Financial Obligations/Limitations Timelines General Logistics (Appointments, etc) What to include? The role of the Counselor Education – Credentials - Special Skills Contact Information Values – Approach - Philosophy What your counselor expects from you What you may expect from your counselor Right to ask about treatment/progress Right to complain What to include? Benefits & Risks of Participation Alternatives Purposes & Uses of Testing Release of Information Procedures Limitations on Confidentiality Disclosure Checklist Non technical & easily understood? Length? Enough info? Too much? Personal? Too personal? General tone? Does it convey what you want to convey? Inclusive of critical information? Inviting format? (white space, font size, etc.) Decisions at the End of Life Introduction Increasingly, Americans die in medical facilities 85% of Americans die in some kind of healthcare facility (hospitals, nursing homes, hospices, etc.) Of this group, 70% (60% of the population as a whole) choose to withhold some kind of life-sustaining treatment The Right to Die Do we have a right to die? Negative right (others may not interfere Positive right (others must help Do we own our own bodies and our lives? Do we have the right to do whatever we want with them? Isn’t it cruel to let people suffer pointlessly? The Sanctity of Life Life is a “gift from God” Importance of ministering to the sick and dying See life as “priceless” (Kant) Compassion for Suffering The larger question in many of these situations is: how do we respond to suffering? Hospice and palliative care Aggressive painkilling medications Sitting with the dying Euthanasia What are we striving for? Euthanasia means “a good death”, “dying well” What is a good death? Peaceful Painless Lucid With loved ones gathered around Some Initial Distinctions Active vs. Passive Euthanasia Voluntary, Non-voluntary, and Involuntary Euthanasia Assisted vs. Unassisted Euthanasia Assisted vs. Unassisted Euthanasia Many patients who want to die are unable to do so without assistance Some who are able to assist themselves commit suicide with guns, etc. - - ways that are much harder and difficult for those who are left behind Voluntary, Non-voluntary and Involuntary Euthanasia Voluntary: Patient chooses to be put to death Non-voluntary: Patient is unable to make a choice at all Involuntary: Patient chooses not to be put to death, but is anyway Active vs. Passive Euthanasia Active euthanasia Occurs in those instances in which someone takes active means, such as a lethal injection, to bring about someone’s death Passive euthanasia Occurs in those instances in which someone simply refuses to intervene in order to prevent someone’s death Active Euthanasia Typical case for active euthanasia There is no doubt that the patient will die soon Passive measures will not bring about the death of the patient The option of passive euthanasia causes significantly more pain for the patient (and often the family as well) than active Criticisms of the Active/Passive Distinction in Euthanasia Conceptual Clarity – vague dividing line between active and passive, depending on notions of “normal care” Moral Significance – does passive euthanasia sometimes cause more suffering? Health Care Advance Directives Planning Ahead for End of Life Decisions Health Care Advance Directive A document in which you give instructions about your health care if, in the future, you cannot speak for yourself Living Will: State wishes about life-sustaining medical treatments Health Care Power of Attorney: Appoint another to make medical treatment decisions for yo if you cannot make them for yourself Health Care Advance Directives Should provide specific guidance regarding your wishes about: Artificial respiration Nutritional support & hydration Medication use for • Pain relief • Prolonging life Organ Donation Legally Binding? Legal document in most states Medicaid requires discussion for admission to healthcare facilities Durable Power of Attorney Most courts tend to honor wishes expressed in living will The Slippery Slope Worrisome examples from history: Nazi eugenics program Chinese orphanages Special danger to undervalued groups in our society The elderly Minorities Persons with disabilities Groups that are typically discriminated against Ethical Issues in Supervision and Research Linda R. Shaw, PhD University of Florida [email protected] Supervision Clinical Supervision Developing and enhancing the clinical competencies of supervisees Providing oversight/Protecting the safety and well-being of clients Administrative Supervision Facilitating the activities of supervisees Ensuring competent performance of job duties and implementing corrective action, as necessary Complex Overlapping Roles Teacher Counselor Consultant Evaluator Conflicting Roles Power differential/therapy-like relationship Fidelity to client, employer and supervisee, and protection of self Dual Relationships Danger of impaired judgment and exploitation Is a sexual relationship appropriate? A close friendship? Competence Supervisory Skills Development of Counselor Skills Implementing Corrective Action Providing meaningful evaluation Confidentiality Client information/Informed Consent Supervisee information Ethical Issues in Research Themes Honesty Integrity Objectivity Protection of Human Subjects Historical Violations of Human Rights Need for Informed Consent Nonmaleficence Informed Consent Voluntariness Confidentiality Full disclosure Multicultural Diversity Implications for Ethical Practice Diversity Issues in Ethics Discrimination/Bias Multicultural Competence Sue & Sue (1990) Counselors have a responsibility to: (1)Become aware of biases, stereotypes & assumptions based on culture (2)Become aware of client values & world view (3)Develop culturally appropriate intervention strategies Misperceptions Based on Different Worldviews • Non-verbal behavior • Directness vs. indirectness • Individualism vs. Collectivism • Change vs. acceptance • Cultural mistrust Diversity Issues in Ethics (continued) Sensitivity to Cultural Issues in Test Selection & Interpretation Diagnosis Treatment Planning Service Provision/Counseling Electronic Communication/Web Counseling Advocacy Recruitment & Retention in Education Programs Research Purposes of Professional Associations Represent members in lobbying, professional advocacy efforts Provide networking opportunities Provide opportunities for professional development Promote professional practice Support accreditation, certification Promote ethical practice & self-regulation Advocate for PWD Exercise Name of Association Structure Divisions State/Regional/Local Governance Structure Committee Benefits to membership Licensed Mental Health Counselor (LMHC) Administered by the Board of Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling http://www.doh.state.fl.us/mqa/491 /soc_home.html Mental Health Counseling: Definition Broad definition Includes “methods of a psychological nature used to evaluate, assess, diagnose & treat “Includes counseling, behavior modification, consultation, advocacy, crisis intervention, client education, research . . .” “individuals, couples, families, groups, organizations, & communities” Academic Preparation Generally based upon CACREP requirements Major revision, effective Jan 1, 2001 Requires: 60 hr. masters program 1,000 hours of practicum &/or internship Specified coursework Required Coursework – 3 hrs of: Counseling Theories & Practice Human Growth & Development Diagnosis & Treatment of psychopathology Human sexuality Group theories & practice Individual evaluation and assessment Career and Lifestyle Assessment Required Coursework – 3 hrs of: Research and program evaluation Social & cultural foundations Counseling in community settings Substance abuse Legal ethical and professional standards IT IS ESSENTIAL THAT YOU KEEP COURSE SYLLABI!! Supervised Experience A minimum of: 2 years =1500 face to face over at least 100 weeks 100 hrs. of supervision per 1500 hrs. of face to face 1 hr. of supervision q 2 wks. 1 hr. of supervision per 15 hrs. of face to face Focus on raw data Supervised Experience No more than 50% group supervision (26 supervisees) Post-masters experience can commence when 7 of 11 required courses, including diagnosis & treatment has been completed. IT IS ESSENTIAL THAT YOU PROPERLY DOCUMENT SUPERVISION!! Supervisor Qualifications LMHC,LMFT, LCSW or equivalent in another state M.D. Psychiatrist, Board Certified Licensed Psychologist + 3 yrs. Of experience providing psychotherapy (incl. 750 hr. face to face) AAMFT-approved or NCC-ACS supervisor Supervisor Qualifications cont. Supervisors must have completed 5 years clinical experience & training in supervision in one of the following: Graduate level supervision course Continuing Education course (16 hr) Meet AAMFT or SW supervision course requirements Registered Intern Requirement Before beginning supervised experience, must apply for intern registration Includes review of coursework and I.d. of qualified supervisor Title: Registered Mental Health Counselor Intern Provisional License For individuals who have satisfied clinical experience Allows individuals to work under supervision while completing additional coursework or exam requirements. Exam Taken at conclusion of 2 years of supervised experience National Clinical Mental Health Counseling (NCMHC) Exam Laws & Rules HIV/AIDS Laws & Rules Must complete 8 hr. course covering • Specified Fla. Laws & rules • Integration with competencies required for clinical practice & interactive discussion of case examples HIV/AIDS Must complete course by time of licensure (or within 6 mos. In extenuating circumstances) Additional Approved Training Domestic Battery Medical Errors