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Legal Aspects of Professional Psychology
All psychologists are required to follow the ethical guidelines found in the 2002 Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (APA), commonly known as the Ethics Code. Other important ethical guidelines are found in the 2007 Competing Development Achievement Levels (DALs) of the National Council of Schools and Programs in Professional Psychology (NCSPP) and the Assessment of Competing Benchmarks Work Group of the APA. These ethics codes cover compliance, privacy and confidentiality, assessment, therapy, research and publications, and there are also special guidelines for dealing with children, minorities, culturally diverse populations, forensic psychology and gay and lesbian clients. Both the Ethics Code and state laws require psychologists to maintain the confidentiality of clients and their records, apart from legal requirements to report verified or suspected child abuse or clients who are a danger to others. Psychologists can only provide services "based on their education, training, supervised experience, consultation, study, or professional experience," and also to do no harm to clients and maintain a "reasonable standard of care" (Arnaut and Hill, 2010, pp. 74-75). Those who do not follow the relevant guidelines and legal requirements will face suspension or revocations of their state licenses, civil penalties, reprimands and lawsuits.
Sexual misconduct is one of the most common ethics complaints made against psychologists, followed by insurance and fee issues, child custody cases, violation of confidentiality, practicing outside of their areas of competence, false and misleading advertising and test misuse. In many of these areas, the Ethics Code is clear cut since it forbids sexual or romantic relationships with clients, false advertising and practicing outside of areas of competence, and in child custody cases it requires that the welfare of the child be the primary consideration. Studies by the APA and other organizations have found that a significant minority of psychologists will violate legal and ethical norms, and that 1-2% will be brought up on ethics charges every year before state licensing authorities. A 1988 survey found that 9% of psychologists had had sex with clients; 6% had failed to report dangerous clients as required by law; 21% had failed to report child abuse and 21% had disclosed confidential information. According to a 1992 APA study, the most common ethical dilemmas "involved confidentiality, followed by blurred, dual, or conflicted relationships with clients" (Arnaut and Hill, p. 83). Violations of confidentiality may involve simply discussing a client's case with friends and colleagues, or more seriously being required to give testimony against clients in court cases or to the police that will have a detrimental effect on them.
By the time they receive their PhDs all psychology students should be well versed in ethical and legal issues, including duties to the profession, clients and third parties. State licensing laws also require them to be "exposed to current knowledge in professional standards and ethics in their graduate clinical psychology curriculum" (Arnaut and Hill, p. 81). Among the ethical and legal issues in such training should include assessment, testing, dealing with diverse populations, knowledge of common ethical dilemmas, use of power relationships and models for making ethical decisions. Legal requirements may also be in conflict with the Ethics Code or with other laws, and the Ethics Code requires psychologists to "take steps to resolve the conflict in a responsible manner" (Arnaut and Hill, p. 82). All evaluations have to be based on the professional literature rather than personal biases and opinions, including cultural, racial and ethnic factors. Disclosing confidential client information in a court setting is a very common ethical dilemma, particularly when opposing attorneys solicit testimony that adversely affects clients. According to the Ethics Code, the first principle of psychology is to do no harm to the client, but legal requirements may make this impossible. By law, all therapists and clinicians are required to report verified or suspected child abuse, for example, yet 40-70% of psychologists have failed to report at least one such instance out of concern for damaging the therapeutic relationship or violating confidentiality.
Medical and mental health care professionals operate under strict ethical and legal guidelines concerning the protection of client confidentiality. Without an atmosphere or trust and confidentiality, these professions that gather the most sensitive kind of personal information simply cannot function at all. This has become even more difficult in the era of cellphones, the Internet and electronic mail, for which few ethical rules exist. Among these are the 1996 Health Insurance Portability and Accountability Act (HIPAA) which includes a Privacy Rule requiring protection of all confidential information transmitted by phone or electronically. In the last ten years "we have become so accustomed to relying on technology that careful thought is not always given to subtle ways that privacy can be violated" (Corey et al. 2007, p. 227). In an environment with relatively new technologies like email, cell phones, voice mail, clients are rightfully concerned that violations of privacy and leaks of confidential personal information have become more common than ever before. Legal and ethical guidelines prohibit the disclosure of confidential medical, psychiatric and legal information to unauthorized third parties. All providers have to be especially careful about passwords and access codes to voice mail, email and answering machines, or sending information via email and cell phones to persons or organizations other than their clients. Confidential information should never be sent to workplace computers or phones since employees have no right to privacy there. In fact, employers have the right to monitor email and phone calls in their location or using their own telephones and computers, and also to monitor the activities of employees with hidden cameras and other spy devices, so workplace privacy can hardly be said to exist at all.
Child custody cases frequently result in complaints against therapists making evaluations for the courts, although the primary requirement is that the welfare of the child should be paramount. In 1994 the American Psychological Association created a set of Guidelines for Child Custody Evaluations in Divorce Proceedings, which is not mandatory for clinicians but highly recommended. Making these custody evaluations requires "specialized competence" in forensic psychology, and in court psychologists will often be cross-examined about their professional competence and whether they followed the Guidelines (Wulach and Shapiro 46). Failure to do so can result in lawsuits and malpractice claims, and in any case complaints about psychologists to state licensing boards are always very high in custody cases. These APA Guidelines are not designed for abuse and neglect cases in which the courts have terminated parental rights, and in custody cases they make the psychological welfare of the child paramount regardless of the attorney who retains the services or the expert or pays their fees. Making recommendations about parental capacity can be complex and difficult, since even a schizophrenic mother on medication me be a preferable parent to an abusive, sociopathic father or one who simply has little time for children. Hyperactive children may be better off with an authoritarian parent rather than a democratic one who fails to set firm rules and boundaries.
For psychologists, many of the ethical and legal requirements are commonsense and clear cut, such as the ban on sexual relations with clients, policies against discrimination based on gender, color ethnicity or sexual orientation, or being forbidden to practice outside their areas of competence and expertise. Like physicians and attorneys, they are also subject to legal and ethical restrictions concerning client confidentiality, although in cases of child abuse and other criminal acts the law may also mandate that clients be reported. Probably the most common ethical dilemma concerns providing confidential information about clients in legal situations, and the majority of psychologists are certainly going to face this at least once in their careers -- and even more often if their career path brings them into frequent…[continue]
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