Running Head: LEGAL, ETHICAL & PROFESSIONAL PRACTICE

Finding the Right Psychologist 1

Ethical Psychological Pracice: Finding the Right Psychologist Foundation for the Preservation of the American Family 2005 Finding the Right Psychologist 2

Abstract Psychologists have duties and obligations imposed on them by many individuals and organizations in their professional and private lives. These are complex, variable and unique to the profession. State and Federal law, along with the APA guidelines, provide psychologists with the limited information necessary but insufficient to navigate the totality of the legal and ethical landscape of the practice of psychology. Psychologists should try to make good judgments by applying the law and guidelines in legal and ethical matters. Throughout academic exploration and clinical practice psychologists should make the best ethical choices they can, using as much information they can. Usually these ethical decisions ignore personal ethical behavior which do not enter the professional arena. It is critical, however, to set a boundary between personal and professional roles. To the extent personal ethical breaches do enter the professional arena, issues of whether harm, exploitation or impairment have occurred exist and may fall under the APA Code. Though personal transgressions deemed unethical most probably affect a psychologist’s professional life the APA Code probably cannot reduce this phenomenon due to the human factor involved. Finding the Right Psychologist 3

Ethical Psychological Pracice: Finding the Right Psychologist

There are several specific guidelines that should be consulted regarding ethical considerations in the practice of psychology. These include the Ethics Code1 of the American Psychological Association (2002a); applicable state psychological association ethics codes; applicable Federal, state and local codes and law; worksite policies and rules; and at times professional organization ethics codes or rules of conduct. Beyond that there may be other professional affiliations that may impose rules, including academic and religious institutions that a psychologist may belong to. Even beyond these institutionalized policies and laws there are ethical rules and morays that may be unwritten and even unspoken, imposed by colleagues, friends and even family. This would appear to exhaust the entire spectrum of guidelines. Yet there is one more consideration. What about the personal behavior of the psychologist himself or herself? Does the personal behavior of the individual, outside the arena of professional practice, have any relevance to the ethical responsibilities of psychologists? The Scope of The Issue This question was adeptly explored by Pipes, Holstein and Aguirre (2005) in this May-June Issue of American Psychologist. Citing the Ethics Code this paper clearly identifies it scope and limit referring to the following excerpt from the Code: The Ethics Code applies only to psychologists’ activities that are part of their scientific, educational, or professional roles as psychologists. . . . These activities shall be distinguished from the purely private conduct of psychologists, which is not within the purview of the Ethics Code. (p.1061)

1 The Ethics Code is itself a large topic for discussion given its many revisions and controversies. Finding the Right Psychologist 4

The authors argue hypothetically that a psychologist can be as morally and ethically reprehensible as the law will allow2 just as long as this behavior is never exhibited in any aspect of their professional role as psychologists. Conspicuously absent from the Ethics Code is any mention of personal behavior, they point out (Pipes et al., 2005). Psychology requires an ethics code in order to, among other things, set some minimum standard of practice, essentially to protect the integrity of the profession. To do this the Ethics Code in it current revision is made up of four parts: aspirational ethics, enforceable standards, guidelines and policy statements. As the name implies, aspirational ethics refers to the “general principle” that psychologists should perform at their highest level of skill (Knapp & VandeCreek, 2003). The enforceable standards portion or “Code of Conduct” is equally self-explanatory in that it refers to disciplinary rules under which psychologists are sanctioned for improper conduct. In what may appear to be a confusing redundancy, typical of committee work, the guidelines actually attempt to assist psychologists in navigating specific areas of practice. Guidelines provide practical advice and certain recommendations for that particular practice area, for example, forensic psychology. Finally the policy statements sweep up any issues that may be on the horizon for psychologists.

The Ethics Code appears to be a work in progress3 and only provide a skeletal framework for practicing psychologists. As with any set of rules or law it is not a complete set of standards to cover every situation. Importantly, the APA Code of Ethics attempts to shift the focus away from avoiding wrong to achieving good. In this positive-ethics approach (Knapp & VandeCreek, 2003) the APA both encourages the integration of personal and professional ethics and seeks 2 As noted in the article, at the discretion of the APA members can be expelled for felony convictions, but even this, for good reasons, is not mandatory. 3 Nine revisions have occurred since the creation in 1953 (Fisher, 2003). Finding the Right Psychologist 5 alternative foundational principles to those found in the code. Here then we find a source of the issue of personal and professional boundaries imbedded in the Ethics Code itself. Indeed the APA has been criticized for failing to address personal behavior in its Code (Knapp & VandeCreek, 2003). One can argue that being a psychologist conveys an ethical duty to behave personally as one would professionally. It is difficult to reconcile the proposition that within a single person two separate moralities co-exist, professional and personal, as was frequently pointed out by the Republicans and some Democrats in the Monica Lewinski scandal. However, it is believed that a psychologist who is acting scandalously in the community can also be a consummate professional. And yet common sense leaves a nagging concern that perhaps this person is a violation waiting to happen. We should not lose sight of the fact that the Ethics Code does include many sections in its attempt to address a wide range of issues. This includes the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002a) wherein one finds specific reference to issues of personal behavior: 2.06 Personal Problems and Conflicts a) Psychologists refrain from initiating an activity when they know or

should know that there is 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. (See also Standard 10.10, Terminating Therapy.) Finding the Right Psychologist 6

Is it safe to conclude then that personal behavior deemed unethical or even illegal would not necessarily impair a psychologist’s capacity to perform adequately? If impairment refers to psychological and physical disability, as distinguished from incompetence and distress, studies indicate psychologists do suffer from this condition to greater and lesser degrees (Knapp & VandeCreek, 2003; Thoreson et al., 1989). The question remains of whether such personal ethical and legal violations beneath the enumerated APA Ethics Code threshold cause impairment, thus triggering the application of the relevant yet unenforceable Ethical Principles section 2.06. In reference to this specific section Thomas F. Nagy in his latest book (2005) recommends that a psychologist: Never undertake professional work when there is a good chance that your personal problems and troubles will interfere with your ability to do a good job. Psychologists, like everyone else, experience stress, illness, losses, and life changes and have personal foibles and weaknesses. Be aware of these, and avoid situations that would compromise your work. Using a vignette Nagy (Nagy, 2005) described a psychologist who in the fallout of a divorce demonstrated bias against female participants data in his marital research . In addition he became sexually attracted to his student research assistant. Seeking the advice and consult of a colleague the psychologist veered away from two ethical violations through appropriate measures to protect his research and his student. In this idealistic scenario the problem is avoided due to the ethical actions of the psychologist to seek help and advice in order to avoid causing harm to others. The remaining unanswered question is whether this psychologist’s actions outside his professional behavior, for example in his marriage, would also be relevant. Clearly the direct violations due to behavior in his professional role are addressed. What is left unanswered is the possibility that this psychologist may have done things in his personal life, Finding the Right Psychologist 7 which if done in his professional life would have placed him in the realm of ethical violation. Assuming this were true we again must consider if two sets of ethics can coexist within the same individual. The long history of role theory4 in sociology coupled with traditions of self determination and freedom in our country have prompted some to argue in favor of this seemingly paradoxical stance (Pipes et al., 2005). However, this vignette supposes the psychologist recognized his problem after consultation. When does it stretch credibility to assume that one’s unreported, untreated severe personal problems are not affecting one’s mental and physical state sufficiently to trigger at a minimum the Ethical Principles of the Code, specifically 2.06, role theory not withstanding? What Boundary Are We Talking About Then? What the Ethics Code says and does not say about personal behavior delineates what the boundary question might be. On one side we have specific language that identifies issues pertaining to personal behavior and on the other the Ethics Code is silent about many personal legal and ethical breaches. Given the history of the importance of personal freedom in our society it seems likely there is a limit to how much control over their personal behavior by the APA psychologists would tolerate (Pipes et al., 2005). Still we can recognize that common factors such as interpersonal chemistry, political and private advocacy, and public controversies may evoke ethical dilemmas requiring oversight when personal and professional roles are entwined. Revisions of the Code both in the past and present reflect the evolution of this issue and reveal the process behind the drafting of the Code itself (Knapp & VandeCreek, 2003; Pipes et al., 2005). The 2002 Code attempts to clarify the limit of the APA’s authority by having language explicitly identifying the scope of behavior under its jurisdiction. Simultaneously, the Code identifies a problem where personal issues begin to 4 The idea that people can maintain conflicting roles (Getzels & Guba, 1955). Finding the Right Psychologist 8 affect a psychologist’s professional role in Section 2.06. The APA in recognizing the limit of it’s control to the professional realm while warning psychologist to prevent interference in that role from one’s personal life, seems to be drawing a bright line. It can be argued that in some ways this implies a certain point of view of the APA and it avoids the sticky choice of addressing the issue directly with further language to describe and outline the ways in which private and professional roles are intertwined. Standard 3.06 (Conflict of Interest) may be a good example of how the two roles in sharing a common psychologist may be closely linked. It 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 (American Psychological Association, 2002a). It should be noted that both Section 2.06 and 3.06 are enforceable as they are part of the Code of conduct. As such, although the explicit language in the Code limits the purview of the APA to the professional and not the private role the section that does mention the overlap is one under which a psychologist can be disciplined. This seeming paradox of limiting scope while placing the issue in the enforcement section, may reflect a committee compromise. But it also synthesizes an important policy, the attempt to focus the breach on its direct negative affect on the client. Had the committee placed the issue in any of the other sections it would not have the same impact so it can be speculated that this was done due to the importance the issue has. Other sections of the code, specifically Section 3.05 (Multiple Relationships) are relevant to the boundary issue since there are clear Finding the Right Psychologist 9 connotations for a breach in personal ethical behavior causing a violation of this standard. This Section 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 psychologists’ objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or likewise risks exploitation or harm to the person with whom the professional relationships exists. (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 (American Psychological Association, 2002a). Given the extensive language of this section5 there appears to be clear indication that the issue of roles outside those of the professional one created

5 As eluded to above the Code has been modified from the 1992 Ethics Code, in this case for clarity. Finding the Right Psychologist 10 with the client(s) are often difficult to navigate and require specific explicit language to codify the precise parameters of admissible and inadmissible behavior. Still this language must be broad enough to encompass a multitude of scenarios over which the Code can apply. Since not all multiple relationships are unethical one needs to determine whether harm, exploitation or impairment exist (Fisher, 2003). It is possible to imagine a situation in which personal behavior might breach this section of the Code. If, for example, a psychologists disclosure of private information and derogatory personal views were discussed with a student pertaining to a colleague with whom that student had a professional relationship, which was subsequently undermined as a result, would that be a breach of ethics pertaining to the multiple relationship and personal behavior? One can alter the variables to see if and when such breaches are possible but clearly what emerges is that the Code cannot possibly address all the possible crosses of the boundary from the personal to the professional. It should be clear then that looking for the issue within the Code merely reflects back all the myriad ways in which personal ethical breaches can cross over to the professional. The questions appear to always be whether there is harm, exploitation or impairment. Strong criticism has been leveled at the APA for parsing issues perhaps too finely or for the benefit of one group over another, as is always the case with any institution made up of a wide range of groups. But some criticism has been leveled at the Code’s failure to adhere to issues, such as human rights (Payton, 1994) as an indication of the APA’s focus away from clients welfare. Both from an aspect of this accusation and that of the Code being intentionally blind to the ethical personal behavior of psychologists Payton (1994) has quite a bit to say: Previous renditions of the American Psychological Association's (APA's) code of ethics have clearly espoused psychologists' commitment to the ideal of having respect for the dignity and worth of the individual human being. The Finding the Right Psychologist 11

endorsement of the goal to protect fundamental human rights has always been highlighted in the Preambles of each revision of the code. The current code (APA, 1992) appears to have retreated from prioritizing this humanitarian stance. Ethnic minorities, women, gay men, and lesbians have reason to be apprehensive about the apparent downgrading in importance of psychologists' declaration of respect for the dignity and worth of the individual. All previous codes seemed to have been formulated from a perspective of protecting consumers. The new code appears to be driven by a need to protect psychologists. (abstract) . . . The distinction [between personal and professional behavior] provokes rethinking of my role. Until now, have always considered myself a psychologist regardless of my job title. Social acquaintances view me as such. (p.319) It may be that this criticism is part of why the APA draws such a bright line and delimits its jurisdiction to the professional realm. While it seems impossible to separate the personal from the professional at times it is quite another matter to define a professional role, establish ethics codes pertaining to it and then make strong enforceable language to impart a duty to avoid personal behavior interfering with such a role. That seems a rather good way to measure the impact of one’s personal life and by inference to measure the potential of harm done to the client. In my own clinical practice I have been faced with many ethical dilemmas. Having been through a contentious divorce and being a single parent with children who require a lot of my personal attention I cannot guarantee that my own personal feelings and opinions towards my clients have not ever been negatively impacted by my personal life. What is difficult to determine is exactly how and to what degree and to what extent was I aware of it requiring me to be able to adjust or refer out. Does this preclude any divorced parents from clinical Finding the Right Psychologist 12 practice? No more than it should preclude anyone whose life may have negatively impacted their clinical practice to the same degree and in the same manner. We are after all human and to that extent there is a limit to which we can be expected to perform professionally with impunity from the effects of our own personal lives. It seems it is this reality the Code tries to address. The cross over from one sphere of influence to another is not one-way. Sometimes it is the professional role that affects the personal and in so doing also violates what some organizations codify as a violation of their ethical code, though the APA does not (Pipes et al., 2005). Other examples may appear more troubling and yet no less enforceable by the Code. Take for example the issue of marijuana use. As we all know this illegal drug has been used widely by a substantial number of people across the country and continues to be a focus of controversy related to our national drug policies. Does use of this drug by psychologists violate the Code if it is done only during personal times? Clearly the question can only be addressed by the code to the extent to which the usage would or could affect the psychologist’s professional role. Even if the drugs’ effects do not diminish capacity after its acute effect’s have subsided what would the effect be on one’s clients to discover their psychologist had been arrested for illegal drug use? Is that an issue to be considered especially if this Psychologist is treating drug abusers? If not is there any effect on the ability of the psychologist caused by long-term use of the drug? Can we say similar things about the effects of alcohol? What about a psychologist getting inebriated in front of students or clients? Beyond the Boundary Clearly the personal behavior of any professional from kindergarten teachers to brain surgeons can and does have an effect on their professional life and visa versa since the two roles co-exist in the same individual. The question is Finding the Right Psychologist 13 to what extent and is there harm, exploitation or impairment caused as a result. Hypocrisy aside, one could not refute this same logic used by the Republicans in the impeachment of president Clinton. The fact the second half of the equation, that is whether there was harm, exploitation or impairment, was not pursued was perhaps purposeful. It would appear then, given the ubiquitous nature of the influence of personal ethical transgressions into the professional realm that in addition to clearly defining the boundary the APA should incorporate language to make the issue more explicit and provide some guidance for psychologists. Pipes, et al (2005) suggest several alterations to the current Code such as: requiring psychologists to state whether their public statements are made as simply individuals or as psychologists, to address harmful personal behavior to clients and students occurring outside professional settings, to incorporate language that encourages awareness of the professional impact of personal identity, and to address hate speech. Pipes et al (2005) brings up the utility of virtue ethics, character and fitness for duty determinations, and self-reflection needs pointing out that psychologist seem to want a separate personal life while acknowledging the inseparability of the two. Finally the paper makes specific amendments to the Introduction and Applicability part of the Code, applying the unenforceable General Principles to the personal lives of psychologists by making two assumptions: (a) the Code should address personal behavior overtly and (b) the Code’s aspirational values should also apply to psychologists personal life. This may be well intentioned but it would appear the Code already addresses these laudable goals by having an enforceable Code section to identify and discipline psychologists who cause harm, exploit, or who treat clients while impaired. The Code, in section 2.06 explicitly states there can be no personal problems or conflicts that negatively impact their professional roles. In Finding the Right Psychologist 14 addition there are other sections of the Code such as 3.05 and 3.06 that protect against this breach, in part by determining whether the psychologist has or potentially could cause any harm. Beyond this are the other portions of the Code, which though unenforceable, are relevant to personal ethical behavior. In spite of the specific language which explicitly limits the scope and authority of the APA Code of Ethics to address personal behavior it maybe difficult for some to read the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002a) in its entirety and imagine how a psychologist could adhere to it and yet simultaneously breach it in his or her personal life, we know, however, that it occurs with some regularity. This paradox may not be due to the strength or weakness of the Code but the character of the psychologist, which if corrupt, cannot be repaired by any document, no matter how well drafted. The Code already seems clear as to what an ethical breach entails and when personal behavior crosses the line. If psychologists fail to adhere to it the problem is most likely not with the Code. As mentioned, in addition to the APA Code there are Federal, State and local laws that govern the practice of psychology that are indirectly relevant to the personal/professional boundary issue. Under Federal law there is the U.S. Constitution, the ultimate document of authority under our form of government. It is probably not common for a psychology ethics case to rise to the level of a constitutional issue, though it can happen6. On top of that there is the U.S. Code, which is created by the U.S. congress as well as the Code of Federal Regulations along with rules, proposed rules and notices listed in the Federal Register. Here there are specific references to psychologists and psychology thereby establishing some very limited Federal regulations pertaining to the practice of psychology. Due to space these laws are not listed or explained and 6 A Westlaw® search revealed no such case. Finding the Right Psychologist 15 they cover a variety of issues, but as yet none cover psychology ethics per se. Finally, there is Federal case law, which is contained in the published opinions of the various courts starting at the Supreme Court on down to the Federal circuit or appeals courts and finally the Federal district or trial courts. There are many cases referring to and establishing legal precedent for the behavior of psychologists. Some even refer to ethics. To the extent any of these involve breaching the personal/professional boundary they could set forth a duty. This potentially creates a legal liability for psychologists as an additional guidance for behavior. But it is the states that have much more to say about the regulation of psychologists. Again for brevity, and not to favor one state over another, no comprehensive listing of State laws is being made here. Suffice it to say the state constitutions, statutes, regulations, codes and case law, such as those contained in California7 -- often a leader in jurisprudence for the rest of the nation, are the most onerous burden a psychologist has. States can remove a psychologist’s license. States can put psychologists in jail. Taken in totality for all the many layers of government having some stake in the ethical behavior of psychologists it would appear there is more written than could be honestly and thoroughly digested by most psychologists. This would be a strong argument against adding additional language to the APA Code, though clarification certainly seems reasonable. The Human Factor Although APA ethics violation inquiries were up in 2002 they have declined significantly since 1993 (American Psychological Association, 2002b). Further examination of the data reveals the two most frequent categories are loss of license and sexual misconduct, which, due to being the underlying factor for

7 Business and Professions Code Section 2900-2918 plus ten additional sections, 215 Statutes and hundreds of cases pertaining to or related to psychologists. Finding the Right Psychologist 16 the loss of license, accounts for 53% of the violations. And yet violations resulting in discipline total only .09% of the membership, a fairly low number it seems. What cannot be determined from the data is how many of these imbroglios were actually started by a personal ethical violation that then became a professional one. Perhaps this is the implicit issue at hand. If that turns out to be the case should the APA attempt to manage personal ethical breaches as a prophylactic measure to curtail professional ones? Again, when one looks at the enormous amount of regulations, laws and guidelines imposed already it seems that at some point there exists a limit after which the profession becomes too encumbered to function adequately. The history of the APA Ethics Code has been unique both in its inception and revision process wherein it has striven to apply statistical data to unethical behavior of its members. Studies of the experience of ethical dilemmas by psychologists have revealed confidentiality as the most frequent area of trouble (Pope & Vetter, 1992). This seems to be inextricably related to the personal/professional boundary and the lack of data for this area of study leaves many questions unanswered. Though impressive work is ongoing in this area (Pope et al., 2006), studies of psychologists in ethical dilemmas would benefit from further exploration of the personal/professional boundary and would most likely yield a correlation between ethical breaches in personal behavior and professional ones. We know that when it comes to issues of the personal/professional boundary and ethics violations much more has to do with the psychologist than the Code. Conclusion Psychology exists under a large amount of law and guidance and codes of conduct. The APA Code, or even the law cannot control unethical personal behavior. Common sense and interpretation of the data would indicate a Finding the Right Psychologist 17 correlation between personal and professional violations of ethical standards. The existing APA Code and the large number of Federal and state laws seem capable of covering almost all ethics violations in the professional area. But short of all psychologists adopting virtue ethics8 there appears little one can accomplish in revising the code to cover personal ethical breaches since it is unlikely that those psychologists who ignore ethics in their personal lives will reliably adhere to any ethics code whether published by the APA or not.

8 The philosophical concept that ethics is derived from personal virtue (O'Donohue & Ferguson, 2003). Finding the Right Psychologist 18

References

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