Ethics in Psychotherapy and Counseling. Kenneth S. Pope
clients, sometimes in direct, profound, and immediate ways. The powerful nature of this influence makes the customary rules of the marketplace—often resting on variations of the principle “Let the buyer beware”—inadequate.
Society asks and expects the profession to create and set forth a code of ethics that holds its members accountable. At its heart, this code calls for professionals to protect and promote the welfare of clients and avoid letting the professional’s self-interests place the client at risk for harm.
Perhaps because society never completely trusts professions to enforce their own standards and perhaps because the professions have demonstrated that they, at least occasionally, are less than effective in governing their own behavior, society has established its own means for making sure that professions meet minimal standards in their work and that their clients are protected from incompetent, negligent, and dishonest practitioners. As a result, four major mechanisms have been developed to hold therapists and counselors accountable: (1) professional ethics committees; (2) state licensing boards; (3) civil (e.g., malpractice) courts; and (4) criminal courts. Each of these four mechanisms uses different standards, though they may overlap. Behavior may be clearly unethical and yet not form the basis for criminal charges.
In some cases, therapists and counselors may feel that these different standards clash. They may, for example, feel that the law compels them to act in a way that violates the welfare of the client and the clinician’s own sense of what is ethical. A national survey of psychologists found that a majority (57%) of the respondents had intentionally violated the law or a similar formal standard because, in their opinion, not to do so would have injured the client or violated some deeper value (Pope & Bajt, 1988). The actions reported by two or more respondents included refusing to report child abuse (21%), illegally divulging confidential information (21%), engaging in sex with a patient (9%), engaging in nonsexual dual relationships (6%), and refusing to make legally required warnings regarding dangerous patients (6%).
That almost 1 out of 10 of the respondents reported engaging in sex with a client using the rationale of patient welfare or deeper moral value highlights the risks, ambiguities, and difficulties of us evaluating the degree to which our own individual behavior is ethical.
Pope and Bajt (1988) reviewed the attempts of philosophers and the courts to judge those times when a person decides to go against the law (e.g., engage in civil disobedience). On one hand, for example, the US Supreme Court emphasized that in the United States, no one could be considered higher than the law: “In the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion” (Walker v. City of Birmingham, 1967, p. 1219–1220).
Conversely, courts endorsed Henry David Thoreau’s (1849/1960) injunction that if a law “requires you to be the agent of injustice to another, then … break the law” (p. 242). The California Supreme Court, for example, tacitly condoned violation of the law only when the principles of civil disobedience are followed
If we were to deny to every person who has engaged in … nonviolent civil disobedience … the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage (Hallinan v. Committee of Bar Examiners of State Bar, 1966, p. 239).
As Pope and Bajt note, civil disobedience (Gandhi, 1948; King, 1958, 1964; Plato, 1956a, 1956b; Thoreau, 1849/1960; Tolstoy, 1894/1951) is useful in many contexts for resolving this dilemma. The individual breaks a law considered to be unjust and harmful but does so openly, inviting the legal penalty both to demonstrate respect for the system of law and to call society’s attention to the supposedly unjust law. King (1963) explained why civil disobedience can only be done openly, publicly, and never covertly:
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law (p. 8–9).
However, counselors and therapists often find this avenue of openness unavailable because of confidentiality requirements. If we as individuals and a profession are to address the possible conflicts between the law and our ethical responsibilities, one of the initial steps is to engage in frequent, open, and honest discussion of the issue. The topic needs open and active discussion in graduate courses, internship programs, case conferences, professional conventions, and informal meetings with colleagues.
AMERICAN PSYCHOLOGICAL ASSOCIATION APPROACH TO AN ETHICS CODE
Founded in 1892 and incorporated in 1925, the APA first formed the Committee on Scientific and Professional Ethics in 1938. As complaints were brought to its attention, this committee improvised solutions on a private, informal basis. There was no formal or explicit set of ethical standards, and the committee’s work was done on the basis of consensus and persuasion.
A year later, the committee was charged with determining whether the organization needed a formal ethics code. In 1947, it decided that a formal code was necessary, stating “The present unwritten code is tenuous, elusive, and unsatisfactory” (“A Little Recent History,” 1952, p. 425). The board of directors established the Committee on Ethical Standards for Psychology to determine what methods to use in drafting the code. Chaired by Edward Tolman, the committee members were John Flanagan, Edwin Ghiselli, Nicholas Hobbs, Helen Sargent, and Lloyd Yepsen (Hobbs, 1948).
Some members strongly opposed creating formal ethical standards, and many of their arguments appeared in the American Psychologist. Calvin Hall (1952), for example, wrote that any code, no matter how well formulated,
plays into the hands of crooks …. The crooked operator reads the code to see how much he can get away with, and since any code is bound to be filled with ambiguities and omissions, he can rationalize his unethical conduct by pointing to the code and saying, “See, it doesn’t tell me I can’t do this,” or “I can interpret this to mean what I want it to mean” (p. 430).
Hall endorsed accountability, but he believed that it could be enforced without an elaborate code. He recommended that the application form for APA membership contain this statement:
As a psychologist, I agree to conduct myself professionally according to the common rules of decency, with the understanding that if a jury of my peers decides that I have violated these rules, I may be expelled from the association (p. 430–431).
Hall placed most of the responsibility on graduate schools. He recommended that “graduate departments of psychology, who have the power to decide who shall become psychologists, should exercise this power in such a manner as to preclude the necessity for a code of ethics” (p. 431).
The APA Committee on Ethical Standards (APA Committee) determined that because empirical research was a primary method of psychology, the code itself should be based on such research and should draw on the experience of APA members. As Hobbs (1948, p. 84) wrote, the method would produce “a code of ethics truly indigenous to psychology, a code that could be lived.”
The board of directors accepted this recommendation, and a new committee was appointed to conduct the research and draft the code. Chaired by Nicholas Hobbs, the new committee members were Stuart Cook, Harold Edgerton, Leonard Ferguson, Morris Krugman, Helen Sargent, Donald Super, and Lloyd Yepsen (APA Committee, 1949).
In 1948, all 7,500 members of the APA were sent a letter asking each member “to share his [their] experiences in solving ethical problems by describing the specific circumstances in which someone made a decision that was ethically critical” (APA Committee, 1949, p. 17). The committee received reports of over 1,000 critical incidents. During the next years, the incidents, with their accompanying comments, were carefully analyzed, categorized, and developed into a draft code.