News and Views
Ethics Issues
THE 2002 APA ETHICS CODE: AN OVERVIEW
This article provides a review and discussion of some of the new standards of the APA Ethical Principles of Psychologists and Code of Conduct. The opinions expressed in this article are those of the author and do not reflect any official policy or opinion of the APA Ethics Committee. This article is designed to be educational in nature and is not intended to provide legal advice. The reader is encouraged to contact an attorney for legal advice regarding state laws governing professional conduct.
After five years of debate and deliberation over the details of a new ethics code, the American Psychological Association (APA) published its latest revision of Ethical Principles of Psychologists and Code of Conduct (hereinafter referred to as the 2002 Ethics Code). Published in the December 2002 issue of the American Psychologist, the new code will become effective on June 1, 2003. Many of the changes in the 2002 code were made in view of the reality that the 1992 code had become increasingly used by attorneys and disciplinary boards to define standards of care for litigation and adjudication. In 1996, the APA formed an Ethics Committee Task Force (ECTF) which began the process of revising the 1992 code. The ECTF reviewed over 1,300 comments by APA members who participated in the revision process by submitting internet comments in response to a total of seven draft versions of the new code. In drafting standards for the 2002 Ethics Code, reviewers were asked to consider factors such as enforceability, level of sanction that would be applied, creation of undue burden or legal liability for psychologists, and appropriateness for inclusion in the Ethics Code versus in practice guidelines. The 2002 code does not contain reference to practice guidelines, which were essentially incorporated into the 1992 code by reference in the footnotes. The Introduction and Applicability section of the 2002 code also contains language designed to avoid creating an undue burden of legal liability for psychologists:
The Ethics Code is not intended to be a basis of civil liability. Whether a psychologist has violated the Ethics Code standards does not by itself determine whether the psychologist is legally liable in a court action, whether a contract is enforceable, or whether other legal consequences occur. (p. 1061)
It is noteworthy that the Preamble of the 2002 Ethics Code no longer contains a statement that was once considered to be one of the cornerstones of the 1992 Ethics Code: "It is the individual responsibility of each individual psychologist to aspire to the highest possible standards of conduct" (APA, 1992, p. 1599). As evidenced by subtle changes in wording throughout the standards, the 2002 code has modified some of the aspirational requirements that were implied in the 1992 code.
Approximately 20% shorter than the 1992 code, the 2002 Ethics Code contains more similarities than differences when compared to the 1992 code. The 2002 code retains the 1992 code's basic structure, including an introduction, preamble, general principles, and enforceable standards. The interested reader would need to make a side by side comparison to appreciate the subtle nuances of wording in the 2002 code. Although an exhaustive review of these subtle changes is beyond the scope of this article, some of the more significant differences between the two codes are highlighted below.
PROVIDING SERVICES IN EMERGENCIES
In recognition of the fact that psychologists are often called upon to provide services in emergency situations, ranging from clinical emergencies to pro bono disaster relief, the APA Ethics Code has introduced a new standard to address such situations. Whereas the 1992 code did not address this contemporary issue at all, the 2002 Standard 2.02 (Providing Services in Emergencies) states the following:
In emergencies, when psychologists provide services to individuals for whom other mental health services are not available and for which psychologists have not obtained the necessary training, psychologists may provide such services in order to ensure that services are not denied. The services are discontinued as soon as the emergency has ended or appropriate services are available. (p. 1064)
Author's opinion: In aspiring to the highest standard of conduct, it may be instructive to review some of the language that was considered in earlier drafts of the 2002 code. In Draft 3 (APA, 2000, p. 556) of the new code, this section was titled “Providing Services in Emergencies or to Under-Served Populations.” Although the reference to under-served populations was deleted in subsequent drafts, the new standard pertaining to emergency services was retained in the final version. When providing services in emergencies or to under-served populations, Draft 3 of the new code recommended that "the psychologist should advise the individual of the limitations in services due to lack of training and (1) refer the individual to an appropriately trained provider as soon as possible, or (2) make a reasonable effort to obtain the necessary competence"(APA, 2000, p. 556). Although these requirements were not included in the final version of the 2002 code, they do point to the need to be aware of one's limitations and to consult with colleagues when operating beyond one's scope of competence.
FORENSIC ACTIVITIES
Although forensic applications of psychology have increased since the publication of the 1992 Ethics Code, forensic activities are not addressed as a separate section in the 2002 code. Instead, standards related to forensic activities are integrated throughout several sections of the code. For example, under the section on Multiple Relationships, the 2002 Standard 3.05 (c) states the following:
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. (p. 1065)
There is another relevant standard that would apply not only to forensic activities but also more generally to any third-party requests for services, such as personnel screening, organizational evaluations, or third-party consultative examinations. This is one of the many areas in which the 2002 standard is essentially identical to the 1992 standard. Under the section titled Third-Party Requests for Services, the 2002 Standard 3.07 states the following:
When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (such as therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses if the services provided or the information obtained, and the fact that there may be limits to confidentiality. (p. 1065)
Author's opinion: Primary prevention of ethical problems usually goes back to the clarity with which informed consent has been established. Preventing an ethical problem from developing in the first place can be facilitated through an informed consent process involving identification of the client, clarification of the psychologist's role, specification of the services provided, and explanation of the limits of confidentiality.
INFORMED CONSENT
Informed consent is a standard that has been expanded more than it has been changed in the 2002 code. It provides the ethical foundation for providing so many types of services that it is stated explicitly under four separate headings in the new code and it is mentioned implicitly in several other sections. Under the first heading of Informed Consent, the first paragraph of the 2002 Standard 3.10 (a) states the following:
When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person except when conducting such activities is mandated by law or governmental regulation or as otherwise provided in this Ethics Code. (p. 1065)
The 2002 code no longer contains the 1992 requirement that psychologists must first establish that a client/patient “has the capacity for consent” (APA, 1992, p. 1605). Instead, the new code contains a provision for persons who are “legally incapable of giving informed consent.” When working with such individuals, psychologists have a duty to “(1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law” (APA, 2002, p. 1065). For the record, there is also the requirement to “appropriately document written or oral consent, permission, or assent” (p. 1065).
For clinicians, the 2002 Standard 10.01 (Informed Consent to Therapy) requires an informed consent discussion of “the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality, and provide sufficient opportunity for the client/patient to ask questions and receive answers” (p. 1072). This standard is essentially the same as the 1992 standard, with the additional requirement to discuss any “involvement of third parties.” The 2002 code also contains a separate section of informed consent responsibilities of psychologists providing “Psychological Services Delivered To or Through Organizations (Standard 3.11).
Author’s opinion: Many psychologists ask why the new ethics code does not contain an informed consent section of standards related to e-therapy, cyber-counseling, or other Internet services. Implicit in all standards of the new code is the assumption that ethical standards apply to all forms of services, whether provided in person, via electronic transmission, or otherwise. The phrase “electronic transmission” is mentioned in five separate sections of the 2002 code, which essentially defines the standards for services rendered via the Internet, telephone, or otherwise. One specific duty required of psychologists providing services through the Internet is to inform the client/patient of the “risks to privacy and limits of confidentiality.” (Standard 4.02c)
MULTIPLE RELATIONSHIPS
The wording of the 1992 Ethics Code implied that multiple relationships were inherently unethical, which essentially placed the burden of proof on any psychologist who was charged with having engaged in an unethical dual relationship. In contrast, the 2002 Standard 3.05 (Multiple Relationships) simply begins with a neutral definition of a multiple relationship:
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 they have the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person associated with or related to the person. (p. 1065)
As was intended by the writers of the 2002 code, the above definition does not contain the implication that dual relationships are inherently unethical. Instead, the standard provides a neutral definition of multiple relationships. The code clarifies that, "Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical" (p. 1065). The 2002 Standard 3.05 goes on to specify the conditions under which a multiple relationship should be avoided:
A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. (p. 1065)
Author's opinion. There are some dual relationships that would not reasonably be expected to cause impairment or risk exploitation or harm on the part of the client. However, any boundary crossing has the potential to lead to a boundary violation. In those dual relationships in which harm eventually results to a client, the burden of proof will fall on the psychologist to demonstrate that the prospective relationship could not reasonably have been expected to result in harm. Adjudication of complaints under the 2002 Ethics Code is likely to be determined by the way disciplinary boards interpret the meaning of the phrase "could reasonably be expected." The word “reasonably” does not define itself. What is reasonable to one psychologist may not be reasonable to another. These considerations highlight the importance of consulting with colleagues in situations involving dual roles or boundary crossings. Of course, the best way to stay out of deep water is to avoid the slippery slope in the first place.
BARTERING
Although the 1992 Ethics Code defined conditions under which bartering might be acceptable, the wording of the standard implied that bartering was inherently unethical. The 1992 Standard 1.18 on bartering was stated as follows:
Psychologists ordinarily refrain [italics added] from accepting goods, services, or other nonmonetary remuneration from patients or clients in return for psychological services because such arrangements create inherent potential for conflicts, exploitation, and distortion of the professional relationship. (1992, p. 1602)
The cautionary language of the 1992 has been deleted from the 2002 Ethics Code. Following the same approach which introduces the standard on multiple relationships, the 2002 Standard 6.05 on bartering simply begins with a neutral definition of bartering: "Barter is the acceptance of goods, services, or other nonmonetary remuneration from clients/patients in return for psychological services” (p. 1068). In providing a somewhat liberal guideline, the 2002 Standard 6.05 (Barter with Clients/Patients) also defines the conditions under which bartering may be acceptable:
Psychologists may barter only if (1) it is not clinically contraindicated, and (2) the resulting arrangement is not exploitative. (p. 1068)
Author's opinion: In the author's experience in adjudicating ethics complaints, some of the most serious boundary violations can often be traced back to what could have been initially viewed as a simple bartering arrangement. Does anyone need to be reminded that one of the original lawsuits that sparked the debate on dual relationships involved a therapist who bartered for services with a client's father who was a house painter? Keep in mind that if the client is subsequently harmed, the burden of proof will rest on the psychologist to demonstrate that the prospective bartering arrangement could not reasonably have been expected to result in harm. Again, what is reasonable to one psychologist may not be reasonable to another.
RECORD KEEPING
With the exception of questions related to mandated child abuse reporting requirements, some of the most frequently asked ethics questions by psychologists relate to record retention (Doverspike, 2001). The 2002 Standard 6.01 (Documentation of Professional and Scientific Work and Maintenance of Records) states the following:
Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law. (p. 1067)
Author's opinion: In plain English, this means that clinical records should be in compliance with the requirements of (1) institutional policies, (2) State laws; (3) Federal laws, including HIPPA, and (3) any third party payor with whom one has a contractual agreement.
RELEASE OF RAW TEST DATA
Standard 2.02 (b) of the 1992 Ethics Code cautioned psychologists against misuse of assessment techniques, interventions, and test results by unqualified persons. This precaution included "refraining from releasing raw test results or raw data to persons, other than to patients or clients as appropriate, who are not qualified to use such information" (APA, 1992, p. 1603). The release of psychological data to nonexperts has been a topic that has received considerable scholarly debate (Barth, 2000; Lees-Haley & Courtney, 2000; Shapiro, 2000; Tranel, 1994, 2000). The wording of the 1992 standard often resulted in psychologists refusing to release raw scores or test protocols to attorneys, school teachers, and others even when the client's request was accompanied by a signed authorization.
In contrast to the 1992 standard, the 2002 Standard 9.04 (a) (Release of Test Data) clarifies that, "Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release" (p. 1071). The only exception to this requirement is when information may be withheld to protect the patient or others from harm. The 2002 code explicitly states, "Psychologists may refrain from releasing test data protect a client/patient or others from substantial harm, recognizing that in many instances release of confidential information under these circumstances is regulated by law" (p. 1071-1072). In the absence of a client/patient release, the 2002 Standard 9.04 (b) states that psychologists may provide test data "as required by law or court order." Regarding the issue of whether to release test protocols, the 2002 Standard 9.04 (a) states, "Those portions of test materials that include client/patient responses are included in the definition of test data" (p. 1071).
The only other stated exception to this requirement involves withholding records for nonpayment of services in situations in which the records are needed for nonemergencies. Under the 2002 Standard 6.03 (Withholding Records for Nonpayment), "Psychologists may not withhold records under their control that are requested and needed for a client's/patient's emergency treatment solely because payment has not been received" (p. 1068).
Author's opinion: Psychologists should release "test data" or other information requested by the client/patient to the person identified in the release, unless to do so would cause substantial harm to the client/patient or others. In the absence of a valid release, provide the information only as required by law or court order. Although there may be some basis for withholding records for nonpayment of services in situations that do not involve emergencies, such a practice may be unwise and may in fact conflict with some of the provisions of the Health Insurance Portability and Accountability Act (HIPPA).
EDUCATION AND TRAINING
In graduate training programs, there has been increased attention given to the degree to which student and post-doctoral trainees should be asked to disclose personal information. The evolving trend has been to require disclosure of sensitive personal information from students only if such disclosure has been stated in the training objectives or necessary to evaluate a student's personal problems. The 2002 Standard 7.04 (Student Disclosure of Personal Information) addresses this concern as follows:
Psychologists do not require students or supervisees to disclose personal information in course- or program-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychological treatment, and relationships with parents, peers, and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or professionally-related activities in a competent manner or posing a threat to the students or others. (pp. 1068-1069)
Author's opinion: Disclosures required of students and supervisees should always be related to educational objectives. For example, if a training program requires psychotherapy trainees to explore their countertransference projections or interpersonal interactions, which might involve discussion of relationships with significant others such as parents or peers, then this training objective should be clearly stated in the graduate student handbook. On a more general level, teachers and supervisors should avoid taking on therapeutic roles with their students and supervisees.
TERMINATING THERAPY
Consistent with the 1992 Ethics Code, the 2002 Standard 10.10 (a) (Terminating Therapy) retains much of the same language as the 1992 code in describing the conditions under which psychologists may terminate therapy:
Psychologists terminate therapy when it becomes reasonably clear that the client/ patient no longer needs the service, is not likely to benefit, or is being harmed by continued service. (p. 1073)
In response to the dilemma posed by clients who threaten their therapists, the 2002 Standard 10.10 (b) also acknowledges an additional condition under which psychologists may appropriately terminate therapy:
Psychologists may terminate therapy when threatened or otherwise endangered by the client/patient or another person with whom the client/patient has a relationship. (p. 1073)
When terminating services to a client, psychologists have an obligation to (1) provide pretermination counseling and (2) suggest alternative service providers as appropriate. The 1992 Ethics Code required that these two pretermination conditions be met "except where precluded by the patient's or client's conduct" (p. 1606). It is noteworthy that the 2002 code has deleted the 1992 requirement that the psychologist "takes other reasonable steps to facilitate transfer of responsibility to another provider if the patient or client needs one immediately" (p. 1606). With respect to the limitations which have been imposed on services providers by managed care, the 2002 Standard 10.10 (c) also acknowledges that pretermination counseling and referral to alternative services providers may sometimes be contractually prohibited by third-party payors:
Except where precluded by the actions of clients/ patients or third-party payors, prior to termination psychologists provide pretermination counseling and suggest alternative service providers as appropriate. (p. 1073)
Author's opinion: Despite some softening of the ethical requirements for termination, psychologists should aspire to take the high road in providing for termination of services with clients. For example, if the third-party payor agreement precludes pretermination counseling or referral, then this limitation of service should be discussed in advance with the client as part of the process of informed consent. With reference to the 1992 Ethics Code, appropriate termination should ideally involve (1) pretermination counseling, (2) referral to alternative providers if appropriate, and (3) confirmation of the transfer of responsibility to another provider if the patient or client needs one immediately. Although the mandatory standards of the 2002 code do not require it, the psychologist who "takes other reasonable steps to facilitate transfer of responsibility to another provider" may be providing a higher standard of care in protecting his or her patient.
These are a just few of the changes that have been made in APA's newly revised Ethical Principles of Psychologists and Code of Conduct. As mentioned previously, the 2002 Ethics Code contains more similarities than differences when compared to the 1992 code. The 2002 Ethics Code is available at www.apa.org/ethics.
REFERENCES
American Psychological Association. (1992). Ethical Principles of Psychologists and Code of Conduct. American Psychologist, 47, 1597-1611.
American Psychological Association Ethics Committee Task Force. (March, 2000). Ethics Code. Revision Draft 3. Guide for Drafting Standards (Drafted 10/24/98, last revised 03/00). Washington, D.C.: American Psychological Association. Page 560.
American Psychological Association Ethics Committee Task Force. (April 15, 2002). Ethics Code. Revision Draft 7. Guide for Drafting Standards (Drafted April 15, 2002, last revised May 14, 2002. Washington, D.C.: American Psychological Association.
American Psychological Association. (2002). Ethical Principles of Psychologists and Code of Conduct. American Psychologist, 57, 1060-1073.
Barth, J. T. (2000). Commentary on "Disclosure of Tests and Raw Test Data to the Courts" By Paul Lees-Heley and John Courtney. Neuropsychology Review, 10 (3), 179-180.
Doverspike, W. (2001). Top Ten Ethics Concerns of Georgia Psychologists. Georgia Psychologist, Vol. 55, No. 4.
Lees-Haley, P. R. & Courtney, J. C. (2000). Disclosure of Tests and Raw Test Data to the Courts: A Need for Reform. Neuropsychology Review, 10 (3), 169-174.
Lees-Haley, P. R. & Courtney, J. C. (2000). Reply to the Commentary on "Disclosure of Tests and Raw Test Data to the Courts." Neuropsychology Review, 10 (3), 181-182.
Shapiro, D. L. (2000). Commentary: Disclosure of Tests and Raw Test Data to the Courts. Neuropsychology Review, 10 (3), 175-176.
Tranel, D. (1994). The Release of Psychological Data to Nonexperts: Ethical and Legal Considerations. Professional Psychology: Research and Practice, 29 (1), 33-38.
Tranel, D. (2000). Reply to the Commentary on "Disclosure of Tests and Raw Test Data to the Courts." Neuropsychology Review, 10 (3), 177-178.
William F. Doverspike, Ph.D. is the author of Ethical Risk Management: Guidelines for Practice, a practical ethics handbook published by Professional Resource Press. Dr. Doverspike is a member of the Ethics Committee and President-Elect of the Georgia Psychological Association (GPA).