Ethics and Law for School Psychologists. Susan Jacob
can be created by situations involving competing ethical principles, conflicts between ethics and law, the conflicting interests of multiple parties, dilemmas inherent in the dual roles of employee and student advocate, poor educational practices resulting in potential harm to students, and because it is difficult to decide how broad ethics code statements apply to a particular situation. In a structured survey of school psychology practitioners, Dailor and Jacob (2011) found that almost three-fourths of the 208 respondents indicated they had encountered at least one of eight types of ethical dilemmas during the previous year. Whereas some ethical dilemmas are quickly and easily resolved, others are troubling and time-consuming (Sinclair, 1998). These findings support the view that, in addition to knowledge of the content of ethical codes, skill in using a systematic decision-making procedure is needed.
Relationship between Ethics and Law
As noted previously, professional ethics is a combination of broad ethical principles and rules that guide the conduct of a practitioner in their professional interactions with others. Law is a body of rules of conduct prescribed by the state that has binding legal force. Both the APA and NASP codes of ethics require practitioners to know and respect the law (APA, 2017b, Introduction and Applicability; NASP, 2020, p. 40, Standard IV.2.2; also see Behnke & Jones, 2012).
Professional codes of ethics are generally viewed as requiring decisions that are “more correct or more stringent” than required by law (Ballantine, 1979, p. 636). The APA’s ethics code states that if the code “establishes a higher standard of conduct than is required by law, psychologists must meet that higher ethical standard” (APA, 2017b, Introduction and Applicability; also NASP, 2020, p. 40, Standard IV.2.2).
In the delivery of school psychological services, practitioners may face decisions involving possible conflicts between codes of ethics and law. In such circumstances, practitioners are encouraged to ask themselves: “Do I understand my legal obligations correctly? What actions does the law specifically require or prohibit (must do, can’t do)? What actions does the law permit (can do)? Even if an action is legal, is it ethical? Do I understand my ethical obligations correctly?” (Knapp et al., 2007; Stefkovich, 2006). The NASP’s code of ethics states: “When conflicts between ethics and law occur, school psychologists take steps to resolve the conflict through positive, respected, and legal channels. If not able to resolve the conflict in this manner, they may abide by the law, as long as the resulting actions do not violate basic human rights” (NASP Standard IV.2.3; also APA 1.02, 1.03).
Ethical Challenge of Multiple Clients
School psychologists frequently face the challenge of considering the needs and rights of multiple clients and other recipients of services, including children, parents, teachers, and systems (Dailor & Jacob, 2011; NASP, 2020, p. 40; also see M. A. Fisher, 2013). The Canadian Code of Ethics for Psychologists states: “Although psychologists have a responsibility to respect the dignity of all persons and peoples with whom they come in contact in their role as psychologists, the nature of their contract with society demands that their greatest responsibility be to persons and peoples in the most vulnerable position” (2017, p. 12). Consistent with the idea that ethical priority should be given to the most vulnerable persons, the NASP’s code of ethics states: “School psychologists consider the interests and rights of children and youth to be their highest priority in decision making, and act as advocates for all students” (NASP, 2020, p. 39; Standard III.2.3; also APA Principle E). As noted previously, to reduce the likelihood of misunderstandings, psychologists should make known to others in their employment setting that the welfare of children is their top priority in decision making (NASP Standard III.2.4).
How Do We Evaluate Whether a Course of Action Is Ethical or Unethical?
Ethics involves “making decisions of a moral nature about people and their interactions in society” (Kitchener, 1986, p. 306). Individuals may make choices of a moral nature primarily on an intuitive level or a critical-evaluative level (Hare, 1981; Kitchener, 1986). Choices made on the intuitive level are based on “people’s immediate feeling responses to situations,” along with personal beliefs about what they should or should not do (Kitchener, 1986, p. 309).
Psychologists, however, have special obligations when making ethical choices in the context of a professional relationship (Behnke & Jones, 2012; Haas & Malouf, 2005). In the provision of psychological services, decision making on a critical-evaluative level is consistent with sound professional practice. The critical-evaluative level of ethical decision making involves thoughtful deliberation and “the application of logic and rationality to the decision making process” (Boccio, 2020, p. 3). Critical-evaluative ethical decision making involves following a systematic procedure. This procedure may involve the exploration of feelings and beliefs, but also includes consideration of general ethical principles and codes of ethics and possibly consultation with colleagues. Psychologists need to be aware of their own feelings and values and how they may influence their decisions (N. D. Hansen & Goldberg, 1999; Koocher & Keith-Spiegel, 2016; Korkut & Sinclair, 2020). However, reliance on feelings and intuition alone in professional decision making may result in poor decisions or confusion (Kitchener, 1986).
How do we evaluate whether a course of action is ethical or unethical? Haas and Malouf (2005, p. 3) suggested that an act or a decision is likely to be viewed as ethical if it has these three characteristics: (1) The decision is principled, based on generally accepted ethical principles; (2) the action is a reasoned outcome of a consideration of the principles; and (3) the decision is universalizable, that is, the psychologist would recommend the same course of action to others in a similar situation. The consequences of the course of action chosen must also be considered—namely, will the action chosen result in more good than harm? Evaluation of whether a course of action is ethical thus involves consideration of characteristics of the decision itself (based on accepted principles and universality), the process of decision making (reasoned), and the consequences of the decision. Knapp, VandeCreek et al. (2017) have called for a greater emphasis on positive ethics in choosing a course of action. A positive approach to ethics encourages psychologists to focus on moral excellence rather than meeting minimal obligations outlined in codes of ethics. Psychologists are encouraged to become familiar with philosophical systems of ethics, to internalize schemas for moral excellence, and to integrate schemas of moral excellence into their professional decision making.
Ethical Decision-Making Model
Three broad types of ethical-legal challenges arise in professional practice: ethical dilemmas, ethical transgressions, and legal quandaries. Ethical dilemmas occur when “there are good but contradictory ethical reasons to take conflicting and incompatible courses of action” (Knauss, 2001, p. 231; also Beauchamp & Childress, 2019), and may foster moral distress among psychologists (Austin et al., 2005). Ethical transgressions or violations are those acts that go against professional expectations for ethical conduct and violate enforceable ethics codes. Ethical transgressions can result in harm to students or others and create a problematic situation for colleagues who must decide whether and how to confront the misconduct (Dailor & Jacob, 2011). Finally, legal quandaries can arise when disregard for federal or state law results in infringement of the legal rights of students and families. Parent–school disputes, especially with regard to special education law, can trigger legal action against the school or school psychologist.
Sinclair (1998) observed that “some ethical decision making is virtually automatic and the individual may not be aware of having made an ethical decision. In other situations, ethical decision making is not automatic but leads rapidly to an easy resolution,” particularly if a clear-cut standard exists. However, “some ethical issues … require a time-consuming process of deliberation” (p. 171). Eberlein (1987) and others (Behnke & Jones, 2012; Knapp, VandeCreek et al., 2017; Tymchuk, 1986) suggested that mastery of an explicit decision-making model or procedure may help the practitioner make informed, well-reasoned choices when dilemmas arise in professional practice. Tymchuk (1986) has also noted that in difficult situations, the course of