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Resolving Ethical Issues – Ethical Standard 1 for Psychologists

Ethics

Readings on Ethics for Psychologists

APA Ethics Code – Standard 1

Ethics Notes

Changes in Standard 1
There were few changes here. One big addition though was that psychologists do not deny employment or benefits to another psychologist solely because they have been the subject of an ethics complaint. This would seem to stem from the legalistic nature of our society, and the increasing roles and risks for complaints psychologists face.

Resolving Ethical Issues
These sections of Standard 1 relate to being sure our work is used and interpreted as we meant for it to be in order to avoid harm to others. To ensure that we are able to do this, we have to be prepared to look closely at what people want from us. Sometimes we come into conflict with those who want us to use our expertise and knowledge to answer questions we can not answer, to provide advice in complex matters beyond our competence, and to support positions that our work does not support. To prevent our work from being misused, we have to state our ethical responsibilities clearly, explain the conflict, and try to work out any disagreements with courts and organizations. This is not a matter of negotiating ethics. Rather, it is a matter of explaining our obligations and finding a way to meet them. For example, when asked to surrender psychological tests and the manuals that explain their use to the court, we could explain that to do this is to violate intellectual property laws as well as compromise the security and the clinical utility of the tests. Perhaps we could answer the court’s questions another way? Perhaps we could give samples of questions not on the test, but that would still give the court a sense of what the test does and how it does it?

When we see problems in our colleagues’ behavior, we should say something. Often, however, things are not what they seem or what people say they are, so we are ethically charged to try to informally investigate and resolve the matter first. This gives us a chance to find out the facts before possibly over-reacting, and perhaps to advise others on an ethical conflict they may not have perviously seen and correct it themselves. When harm is being committed, however, informal resolution may not be appropriate, and instead a report to a superior or an ethics committee is needed. Such complaints, as we will see below, are taken very, very seriously, and should not be made lightly or carelessly. In fact, filing ethical complaints carelessly is in itself unethical. Likewise, while someone is being investigated, we do not “assume guilty until proven innocent.” Rather, we suspend our judgments until we have sufficient information upon which to make a sound judgment.


Complaints, Malpractice, and Risk Management: Professional Issues and Personal Experiences

Montgomery, Cupit, and Wimberley, PPRP August 1999 Vol. 30, No. 4, 402-410
284 participants were randomly selected from the October 1995 roster of psychologists provided by the Texas State Board of Examiners of Psychologists. Using a 6-point scale ranging from 1 (never) to 6 (always), respondents rated 24 events and activities as to the likelihood of a complaint and malpractice lawsuit being filed.

Complaints
The five most frequent complaints were:

  • sexual misconduct with a client or patient,
  • child custody decision,
  • breach of confidentiality,
  • sexual misconduct with a student, and
  • billing for services not provided

The five most frequent malpractice charges were:

  • sexual misconduct with a client or patient,
  • failure to warn with resulting injury,
  • child custody decision case,
  • client suicide (not being seen by physician), and
  • client suicide (currently being prescribed psychotropic medication by physician)

Respondents failed to recognize as potential sources of malpractice litigation incorrect diagnosis and negligent clinical supervision.

Probability and Concern about Complaints or Malpractice Lawsuits

  • 65.1% considered the probability of having a complaint filed against them to be less than 20%, and 13.4% considered the probability to be between 20% and 40%
  • 71.5% considered the probability of a malpractice lawsuit to be less than 20%, and 12.7% considered the probability to be between 20% and 40%

Complaints Actually Filed With the State Licensing Board

  • 71.5% knew a colleague who had a complaint filed against him or her with the state licensing board
  • 14.4% had been threatened with a complaint
    • 39% (5.6% of total) of them stated the threat actually resulted in a complaint
    • 10.9% (1.5% of total) of them reported one or more complaints with the state licensing board
    • 19.4% (2.7% total) of them knew the complaint was being filed
    • the largest category of complaints (22.6%) dealt with supervisory issues, including the performance of a supervisee providing services and the relationship between the supervisee and supervisor

Feelings and Experiences of Respondents

  • shocked = 53.3%
  • depressed = 44.8%
  • annoyed = 72.4%
  • worried = 51.6%
  • angry = 54.8%
  • 74% replied the process was either unpleasant or very unpleasant
  • 74.1% felt the complaint was ultimately resolved to their satisfaction, with the remaining 25.9% stating the complaint was not resolved to their satisfaction

Experience with Malpractice Lawsuits

  • 38.7% knew a colleague who had been sued for malpractice
  • 7.4% had been threatened with a malpractice lawsuit
    • 57.1% (4.2% of total) of them stated the threat resulted in a malpractice lawsuit
    • 23.5% (1.7% of total) of them knew it was being filed
  • 81.8% felt the malpractice lawsuit was resolved to their satisfaction, and 18.2% were neutral about the resolution. None of the respondents was dissatisfied with the resolution of the lawsuit

Importance of Risk Management Activities
Most important risk management activities included release of information forms, case documentation, and informed consent procedures.

  • 65.4% reported attending a continuing education or professional workshop dealing specifically with risk management, malpractice concerns, or ethics.
  • 72.2% of the entire sample currently purchased insurance; for those respondents spending some time in independent practice settings, 91.3% indicated purchasing insurance


Preventing and Managing Board Complaints: the Downside Risk of Custody Evaluation

Glassman PPRP April 1998 Vol. 29, No. 2, 121-124

Strategies to Reduce Risk of Incurring an Ethics Complaint When Conducting Custody Evaluations

  • Obtain court appointment – as a consultant to the court, you have greater protection than as a consultant to one side in a legal dispute
  • Secure informed consent – this means documenting exactly what you explained, and explaining well the processes and uses of the information you will gather
  • Explain the waiver of confidentiality – in court cases, the “client” is the court, and the person in your office has no confidentiality that allows them to withhold information from the court
  • Maintain impartiality – and as we’ve noted in discussing dual-role relationships, you should avoid even the appearance of partiality
  • Avoid one-party evaluations – these are cases in which you evaluate one side of a legal case, but not the other, and so can not present a complete picture of the matter and can not assure your work will not be misused in court
  • Avoid ex-parte communications – this means you must avoid sharing of information with only one side involved in the case
  • Provide complete disclosure – in other words, anything you believe the client should know, you must explain, even if you think they already ought to know it
  • Avoid dual relationships
  • Preserve a well documented file – this means that any one at any time could review your file and gain the clear impression that your work is organized and thorough

Suggestions on How to Respond to an Ethics Complaint

  • Immediately notify your malpractice carrier – insurance companies often provide free legal consultation before things reach the point of a complaint, but after a complaint is filed must step in to protect you
  • Avoid panic – misjudgements are more likely to happen when you are distressed
  • Reread the complaint as often as necessary to identify the underlying issue – it may be something that can be resolved without legal action, such as through the agency you work for or through mediation
  • Maintain professionalism when responding – this helps you remain clear-headed as well as gives others the clear impression that you maintain your professionalism under stress
  • Maintain objectivity – where you can see mistakes or things that could have been done better, you can more easily be calm
  • Make available all supporting documentation – being open and straightforward with the investigating body, and your legal counsel, is the best route
  • Admit mistakes when they happen


Recognizing Concerns About How Some Licensing Boards Are Treating Psychologists

Peterson PPRP August 2001 Vol. 32, No. 4, 339-340

Peterson writes about how ethical complaints pose a significant risk for the destruction of a psychologist’s career, professional reputation, and financial wellbeing. He was a psychologist with 25 years of experience who made an error in judgment and had an ethics charge filed against him. “Three years later, I received a report of findings that lacked factual accuracy, seemed bent on proving my guilt, selectively collected and used information to prove the case, and rendered an extremely harsh punishment.” He fought it for six months, his legal fees had reached five figures, and eventually he surrendered his license, as he was retiring, rather than fight it any longer. He wrote his article to raise awareness of the problems with state and provincial psychological associations (SPPAs).

He explained how in 1999, Division 31 offered a symposium in which panelists discussed “egregious mistreatments” of some psychologists by licensing boards, and showed a video documenting “suicide, emotional and health-related disabilities, loss of income from unfavorable publicity, and financially catastrophic legal bills” that resulted from ethics charges.

He offered several real life examples:

  • Three times a psychologist appealed the findings of the licensing board, and got the ruling overturned by an administrative law judge, but the licensing board refused to accept this and revoked his license. This cost between $100,000 and $200,000.
  • A licensing board charged a psychologist violating new standards, while old standards had been in effect at the time of the “infraction.” They refused to reopen the case when this was pointed out, and instead of spending $40,000 on an appeal, the psychologist gave up his license.
  • A psychologist went with a patient to an art show to see a piece the patient had submitted and was charged with violating the client’s boundaries.
  • Peterson says three former chairs of licensing boards admitted to him in confidence that typically licensing boards assume the psychologist is guilty unless proven innocent.
  • A licensing board used testimony from a civil suit without giving the psychologist a chance to review it prior, or similarly hearing the psychologists’ testimony in the suit.
  • A psychologist reported that he was threatened by an assistant attorney general that if he publicly protested the actions of the licensing board that new charges would be brought against him.

Peterson calls those who speak up “brave souls” and says those investigated by ethics boards are “so shattered and wounded by the actions of the complainant that they withdraw and don’t protest inappropriate and unreasonable treatment.” He notes peers and colleagues fail to support them, assume their guilt, and SPPAs don’t know or get involved in the case. He suggests we “practice what we preach” and suspend judgment when a colleagues has charges filed against them.


Responses of Psychologists to Complaints Filed Against them With a State Licensing Board

Schoenfeld, Hatch, and Gonzalez PPRP October 2001 Vol. 32, No. 5, 491-495

The participants of this study were 240 licensed psychologists and master’s level psychologists in a southern state who had complaints filed against them with the state board during a 56-month period.

Five reported spending between $180 to $30,200 to consult with other psychologists, and spending $0 to $35,584 on attorney fees. Those who violated an ethical standard spent on average seven times more on average compared to non-violators ($750 vs. $5,450). Only a small percentage were sued, with violators again being seven times more at risk (14% vs. 2%). These suits added an additional $1,000 to $25,000 to their attorney costs.

Both groups felt they were treated in a punitive, unfair, and even abusive manner. Both complained they were assumed to be guilty and treated as a “criminal”, with 66% of the violator group and 21% of the non-violator group stating their treatment was discourteous. Boards were seen as especially unfair when they gave psychologists only 10 days to respond to a complaint, but themselves took as long as they wished.


Victimized by “Victims”: A Taxonomy of Antecedents of False Complaints Against Psychotherapists

Williams Professional PPRP February 2000 Vol. 31, No. 1, 75-81

Williams cites six situations that can lead to false allegations: (a) malingering and fraud, (b) revenge, (c) psychopathology, (d) “recovered” memory, (e) doctrinaire suggestions from a subsequent therapist, and (f) escape from unwanted treatment.

Malingering and Fraud
Williams offers that a former patient can claim inappropriate sexual contact from the therapist, as courts generally award money for the finding of any inappropriate sexuality in therapy, even when there is little factual foundation for the charges. “The ‘slippery slope’ viewpoint holds that once a therapist begins engaging in nonsexual boundary violations, for example, gift giving or receiving, socializing between sessions, or excessive self-disclosure, sexual boundary violations are likely to follow…”

Williams cites this example:
“A case in 1996 involved a patient who claimed to have suffered damages resulting from her having been kissed by her psychiatrist. The case was unusual in that the psychiatrist did not contest that the kissing occurred; he acknowledged that he briefly participated in the encounter, but he denied that the brief mistake had resulted in damages. He had expressed his apologies to the patient in a note, hastily composed following the session at issue. The interesting question, since plaintiff and defendant largely agreed about the facts of the transgression, was what the jury would consider an appropriate award for such a circumscribed event in the life of a plaintiff whose prior writings, introduced as evidence, indicated that she was very experienced sexually.”

“The encounter in question occurred during a treatment session as the psychiatrist was, in an effort to get a taciturn patient to open up, leading the patient to occupy a different chair in the office. The patient suddenly kissed the psychiatrist, and the psychiatrist initially failed to resist. After a brief period of kissing, the psychiatrist testified that he realized that he was making a mistake and stopped the inappropriate behavior. He said he expected to discuss his mistake in subsequent sessions, as well as to explore the meaning of what had occurred for both the patient and the therapy. However, he never got that opportunity, as the patient set in motion a civil law suit within a day of the event. The patient was ultimately awarded nearly $160,000 by a jury in San Francisco. Because of the rapidity with which the patient went from sex abuse victim to litigant, one might wonder whether indeed the patient had arranged for the entire chain of events to occur in order ultimately to gain the financial reward. Although this scenario can neither be confirmed nor disconfirmed in this case, the case illustrates that such a chain of events might be possible…”

The plaintiff claimed that she had been so depressed that she could not work out at her gym. A private investigator hired by the therapist documented that she did go to the gym and work out, however. Despite this, the jury found for her and awarded large damages, with some commenting that they expected that a malpractice insurance company would pay for it all.


Frequency of Child Custody Evaluation Complaints and Related Disciplinary Action: A Survey of the Association of State and Provincial Psychology Boards

Kirkland and Kirkland PPRP April 2001 Vol. 32, No. 2, 171-174

In 1998, child custody evaluations constituted 11% of all ethical violations, compared to 58% for sexual misconduct. Among the 34 states and provinces participating, 2,413 complaints filed in child custody cases, with only 27 leading to findings of formal fault against the psychologist.

The best defense would be to:

  • conduct only court-appointed evaluations
  • ensure that your work reflects a thorough compliance with all specific state and national guidelines for conducting such evaluations
  • stay on top of the developing ethical and procedural literature in this area
  • avoid any role conflicts or even possible sources of perceived bias
  • use multiple data sources for conclusions, particularly interviews with third-party sources
  • avoid ultimate issue testimony
  • have parties sign releases and agreements about notification of rights and parameters of limited confidentiality
  • do not under- or over-interpret test data
  • document billing practices thoroughly
  • create a file that is composed with the assumption that it will be subject to board review


Top ethical complaints seen in Illinois

My thanks to Dr. Michael Bresolin at the Illinois Psychological Association for these. The top 12 ethical complaints in Illinois, in no ranked order, are

1) Claims of Inadequate Forensic Evaluation
The psychologist

  • may have used different techniques for two clients on the same case, or didn’t evaluate both parents in a custody case
  • used outdated tests
  • did not adequately gain informed consent or consent to release information
  • did not adequately explain to the client the purpose of the evaluation and the nature of the recommendations that he or she would make as a result
  • made claims about another party not evaluated

2) Inappropriate Non-Sexual Relationships
The psychologist may have had a relationship (professional or otherwise) with one member of a couple prior to treatment and not have disclosed this, or may have collaborated with a client on a book or presentation which later developed into a conflicted relationship.

3) Rudeness, Unfairness, Abusiveness
The psychologist said things to the client that were considered by the client to be offensive or harsh. What is a therapeutic confrontation and what is abuse? It’s hard to say in some cases; certainly things can be taken out of context, but some reported comments certainly have appeared to abusive.

4) Inappropriate Testing
A second evaluation by a psychologist points out flaws and inadequacies in a previous evaluation due to inappropriate use of tests, outdated tests, or incorrect interpretations of the tests… and ethical complaints are filed against the first psychologist.

5) Abandonment/Inappropriate Termination of Services
Threats to terminate a client, refusal to provide services for failure to pay even during a crises, and appropriately terminating with a client but this being poorly received by the client.

6) Practicing Outside Areas of Expertise
This can be hard to define, but using new techniques without adequate training and consultation, for example biofeedback or hypnosis, can lead to malpractice complaints.

7) Inappropriate Billing
The psychologist may have billed for services not provided, altered the fee for the insurance company, lied about the length of sessions, billed for testing that was not administered, or provided receipts of billing for the client that differed from what was submitted to the insurance company.

8) Multiple Relationships of a Sexual Nature

9) Sexual Harassment of Colleague or Employee

10) Unprofessional Conduct During Supervision or Therapy
The psychologist does something like leaving the door open while discussing confidential information, abandons the supervisee, or engages in sexual harassment or dual role relationships with the supervisee.

11) Breaches of Confidentiality

12) Misrepresentation of Credentials