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News and Views |
Alternative Dispute Resolution Option for Ethics Adjudication |
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Columnists and Correspondents Malpractice and Risk Management |
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The profession of psychology is regulated by enforcement of the APA Ethics Code, State Licensing Board, and civil or malpractice actions. Enforcement of professional standards in psychology has at its heart, two missions. One is to protect the public from exploitation by the “bad actors,” those psychologists who through incompetence or malfeasance egregiously hurt or exploit clients. Sad examples of egregious misconduct include sexual abuse of children during therapy, sexual misconduct, insurance fraud, and felony convictions. The second mission of discipline is to protect the profession and the reputation of psychologists who are proud to hold themselves to a high standard of competence and integrity. Complaints of egregious misconduct by psychologists are received and processed by APA Ethics Committee and State Licensing Boards. However, an entire class of complaints received by APA Ethics and the State Boards against psychologist involve non-egregious actions. Non-egregious behavior often includes mistakes that any one of us could have made on a bad day. Non-egregious mistakes can be sanctioned, and even a so-called “mild” sanction, such as reprimand imposed by a disciplinary source is reportable. That is, psychologists must report action taken against them on managed care applications, job applications, hospital application, and the like. Thus, the effect of any reportable discipline can be career shattering. In response to concerns about preserving practitioners’ careers, the APA Ethics Committee was interested in offering a more educative and advisory option for psychologists who may violate standards, but where the predicate action is not considered to be egregious behavior. Thus, the subcommittee was established to research an Alternative Dispute Resolution alternative to resolving ethics complaints against members. Subsequent to the establishment of the ADR subcommittee, the Ethics Committee proposed rule changes involving consideration of “expellable only” behavior in complaints it would consider against members. Should these rule changes take effect, the Ethics Committee would no longer discipline the class of cases most appropriate to Alternative Dispute Resolution (ADR) procedures. However, the ADR systems discovered in this process still would be applicable to other disciplinary sources, including those States offering ethics adjudication programs through their State Psychological Associations, or a possible option offered by the discipline division of State licensing Boards who still consider discipline for non-egregious behavior. Numerous other professions offer a mediation alternative, including medicine and law. The National Association of Social Workers is beginning a pilot project in Alternative Dispute Resolution (ADR). The present discipline process has been criticized for having a high cost, both financially, and emotionally to members and complainants. Adjudication of ethics and licensing complaints is extremely stressful and emotionally painful to psychologists accused of misconduct, who are faced with defending themselves against accusations and a quasi-legal process of evidence gathering that can drag out over years before being resolved. In addition, the complainants are often frustrated, and get minimal information regarding the final resolution of a complaint other than the sanction applied. The ADR subcommittee discovered a mediation system used by the college of Physicians and Surgeons in Ontario Canada. The Canadian system is described in the Feld and Simms book, Mediating Professional Misconduct Complaints, (1998), from which most of the material in this article derives. The consideration of mediation as a means of resolving conflicts and accusations of misconduct brings to the forefront a discipline source’s philosophy of discipline. That is, what does the discipline source value or hold important in trying to maintain standards? Is it to weed out the sociopathic or fraudulent practitioners, and assure the public that anyone licensed as a psychologist is competent to hold that title? Is it to educate professionals regarding standard of care and professionalism? Is it to rehabilitate and provide education to psychologists with their own emotional distress by offering referrals to impaired practitioner programs? Is it to give medical malpractice attorneys a “How-to Guide” when filing law suits against psychologists? Is it to offer assistance in resolving conflicts between consumers and psychologists that are based on misunderstanding, unrealistic expectations, or miscommunication? Or, is it to protect members against consumer complaints going forward to formal licensing complaints or lawsuits? The discipline source attempts to protect the public interest by weeding out dangerous practitioners or those licensed practitioners who are not competent for a variety of reasons, such as the development of mental or physical illness, substance abuse, or attempts to practice outside their area of training and expertise. The profession’s goal and philosophy often incorporates a punitive component, in that it seeks also to punish those who deliberately mislead or harm the public. In addition, the discipline source also seeks to have an educative component, in that they wish to educate misguided practitioners, for example, those who may be making clinical errors without malice. Some say the educative component presently is underutilized, and that we don’t do enough to steer these otherwise well-meaning practitioners back on track and prevent possible future harm to the public. The discipline source must determine which types of misconduct or violation are appropriate to offer ADR, and which are sufficiently egregious, with likelihood of resulting in substantial harm to the public, and so the discipline source would not want to offer an ADR resolution. Each discipline source has to determine which behaviors would not warrant an ADR offering. Anyone concerned about maintaining professional standards would need to be reassured that ADR is not offered to psychologists who are out there doing harm to the public and embarrassing our profession. It is crucial to emphasize that mediation is not appropriate for egregious behaviors that might to harm to the public or the profession. Any successful mediation program would have a screening process to funnel complaints involving substantial harm to others into an adjudicative process, whether it be in-house or through the state discipline process. However, an ADR system would likely be appropriate in cases where the psychologist intended no harm, and erred out of ignorance or poor judgment. Further, many cases of miscommunication, unrealistic expectations on the part of consumers, or cases where an apology and reassurance that the practitioner will mend their ways is all that’s needed would be appropriate for ADR. A mediation alternative has several advantages to a formal discipline process when applied to non-egregious behavior. It maintains the profession’s role in protecting the public interest, allows direct participation by complainants and professions and promotes responsive solutions to public complaints. It is far less expensive than adjudication, the proceedings are less formal, and most cases are resolved in six months, rather than the two years or more of formal adjudication. If the Ontario system were applied to complaints involving psychologist, the progress of a complaint would proceed in the following manner. A Complaints Committee appointed by the discipline source would screen complaints before offering mediation. Mediation would not be offered in cases involving egregious misconduct, or where the parties were not willing to negotiate due to expressed need for retaliation. The parties would have to agree that the resolution is binding and held without prejudice, that is, not discoverable in any future malpractice action. Often the discipline source would conduct an initial independent investigation into the complaint, before formal charges are crafted, and an expert would evaluate the professional’s behavior before the determination is made to send the complaint on to mediation. If evidence of other egregious misconduct is uncovered at any point during mediation, the matter would be remanded to formal discipline tract for adjudication. Cases appropriate for mediation would involve one time only incidents involving lapses of professional judgment, clinical errors or miscommunication issues which did not cause substantial harm to the client. Such cases might include misperception regarding what “advice” a psychologist gave, billing problems (bill session as individual rather than family) accusations of patient abandonment (not returning patient calls), some multiple relationship accusations (seeing patients out at social events makes patient assume you have violated confidentiality), some sexual harassment allegations (asking a colleague out to dinner), colleague disputes over who wrote the “correct” forensic or neuropsychological evaluation, accusations of misinterpretation of test results in forensic cases, or accusations against psychologists participating in custody situations. Neutral Complaint Medication itself involves four parties to mediation, the complainant, the psychologist, an interested representative of the discipline source whose purpose it is to represent the discipline source’s interest in the matter (i.e., upholding the Ethics Code and protection of the public) and the Neutral Mediator. The Mediator would be hired from outside the discipline source, but would be trained in the mediation of health care disputes. Mediation proceeds in a face-to-face process, often shuttling among the three parties who may be seated the same building but may never sit in the same room. The Interested party, or discipline source representative (such as the representative of the State Psychological Association Ethics Committee) ensures that the standards of care for the profession are upheld, and can influence negotiations if not satisfied, even if the complainant and respondent have agreed. Thus, the discipline source keeps its overriding, statutory duty to serve and protect the public interest. Being present as a party at the bargaining table allows it to focus on that role alone, without having to also be a mediator and keep the negotiations always on track. A complainant’s interests would not necessarily be synonymous with the full public interest in the case, so the discipline source’s representative could not have to rely on complainants to ensure that agreements would be in the public interest. The discipline source representative can also assist in suggesting educational and remedial programs during resolution negotiation and provide information during negotiations regarding realistic standards of care. A major procedural rule to ensure ADR success is that all discussions must proceed without prejudice, i.e., nothing said by any of the parties during the negotiations could be referred to in a disciplinary hearing, and could not be presented as evidence in a future civil case. The discipline source’s attorneys would need to research whether this can be offered as protection to members who would like to participate in ADR. Since many ADR resolutions involve writing letters of apology or undertaking directives such as educational courses participation in an ADR resolution would appear to be an admission of guilt. If ADR proceedings are discoverable, a psychologist would be hard pressed to defend him or herself in a subsequent malpractice action. Most professional participants chose ADR because of anxiety about the potential outcome of a formal disciplinary hearing, this anxiety being the decisive motivation to participate in the process. A Complainant’s motivation for participating in ADR usually involves an altruistic motive in that they wish to assure this “never happens to anyone else.” The complainants also wish that the practitioner be subjected to an independent evaluation of their competency, and that any lapses in competency be addressed through further training. In Ontario, surveys of complaints against physicians found that; one-fourth would not have filed a complaint if the physician had apologized or given a satisfactory explanation of what went wrong on his or her own. A formal disciplinary hearing cannot yield an apology. An apology was sought by half of the complainants. A majority of physicians knew this was important to patients. A majority of complainants wanted acknowledgement of inadequate care, or harm suffered by the complainant. Physicians were largely unaware that this is what patients wanted. Three quarters of complaints were not seeking punishment. Complainants would have to be educated regarding a mediation option. The Ontario system makes available a pamphlet outlining the process to the public. Motivation to participate plays a large role in the success of mediation. The parties must promise to agree to some type of commitment to settle, or make a good faith effort to settle even when the going gets rough. This may be needed to encourage parties to move forward to a settlement rather than delay the proceedings. The Mediator must be granted authority to settle by the discipline source conducting the mediation. Mediation should be a voluntary process, and any party can withdraw at any time, but this would likely mean that the case would go to adjudication, or be dismissed if it is of a minor nature. If it’s dismissed, the psychologist loses the opportunity to be educated regarding how he found himself in a complaint to begin with. Further, the complainant could seek redress in another forum, such as the state licensing board or a malpractice action. The mediator must be immune from participation in further action, and their no party would seek to subpoena the mediator’s records. For adjudications occurring within a state or national psychology association, psychologists may be confused about the role of the state association in mediation. They might expect that the association should be “on their side” protecting and supporting them as members. The role of the association in upholding standards and protecting the public often hurts and angers practitioners. They may see the association and the complainant as their enemy. They may feel outraged that the entire process is complainant-driven simply by raising an accusation of misconduct. They may also be enraged by being asked to apologize for a mistake they believe was never committed. For a psychologist to participate, it is predicated on an assumption that the complaint can be substantiated, or, proven if it went to a hearing. Frivolous or spurious complaints would not be considered. Misconduct that would merit a reprimand only or dismiss with violation and an educative letter would be appropriate for the ADR process. The discipline source’s preliminary investigation or expert opinion convinces the practitioner that a violation will be found. If the psychologist chooses ADR they lose the chance to be completely vindicated, that is, having the complaint completely dismissed at a formal hearing. The psychologist must calculate the risk of losing at a formal hearing and getting sanctions imposed before choosing and ADR option. The formal disciplinary process is not equipped to offer a chance for the practitioner or the complaint to vent feelings, feel understood, gain closure or participate freely in the process. The two processes of Discipline hearing and ADR are quite different. Formal hearings are often focused on defending the respondent, looking for holes in the case, and flaws in due process or administrative law procedure. In ADR, often the discipline source can assist the practitioner in evaluating their case by giving them an expert opinion on what standards were violated, which helps the practitioner make a decision on whether to enter ADR, and if it appears likely violation and sanction will be found if they elect to enter a formal discipline process. The mediator works finding joint interests, assisting the parties to handle strong emotions, correcting, misperceptions, and stereotypes by clarifying communications. The mediator listens to the complainant and respondent, legitimizing and validating feelings, summarizing statements and proposing more effective communication mechanisms. The mediator reframes issues in terms of meeting the parties’ joint interests. Usually this involves acknowledging the altruistic motive, where the complainant wants to be assured that the practitioner will harm no one else with his behavior. The mediator assists in generating options with the assistance of the discipline source. The mediator helps to keep the parties from backing off from hard line or extreme positions, i.e., moving from admission of guilt to acknowledgement that the behavior caused suffering. Impasses occur commonly because parties dislike and dismiss the options. The mediator emphasizes that most of the options generated would not be available in the formal disciplinary process to keep parties motivated. Offers can be translated in shuttle caucusing. The mediator listens for and restates common overlapping views (willingness to see no other patient is harmed or upset by practitioner behavior) and stresses that mediation requires a willingness to compromise and that the mediator is working to achieve the common interests of all parties. Finally, he or she translates principles of agreement into fact, working out the details of a rehabilitation plan, and sells the proposed settlement to all parties, motivating negotiators to accept the agreement. Emotional venting is an essential aspect of mediation, both for the complainant and practitioner. Complaints are all very personal and entail trust issues. The emotional component of mediation is very delicate. Private meetings and caucuses help vent emotions before moving forward to developing settlement options. The practitioner also has a need to tell his or her story without fear of being punished. Some resolutions may not involve admissions of guilt. A sample resolution from Ontario reads this way: “Without admitting the truth of the allegations made by the complainant in this matter, and without admitting professional misconduct, the physician agrees that his reading of the electrocardiogram may be seen as an error in judgment on his part.” This validates the perception or opinion of the complainant without admitting guilt. The discipline source representative can assist in forming settlement options. For example, if an apology or acknowledgement is offered, the mediator will have the parties craft the language of the apology with the assistance of the discipline source representative relating is to standards that may come into play. The mediator is responsible for drafting “A Memorandum of Agreement” and for revising and redrafting as needed to gain agreement. Then the agreement is signed which stipulates the resolution of the matter, including apology, acknowledgement of suffering by the complainant and rehabilitative measures. Summary Mediation, if binding, ensures that the matter would not be heard in another tribunal, avoiding the cost of formal discipline and defending a license in front of a State Board or in court, and the opportunity to engage in educational and rehabilitative activity that would reduce the likelihood of recidivism. Mediation usually results in a faster resolution to a dispute, on average six months versus two or more years for a formal complaint. Finally, members may be appreciative of an opportunity to work out disputes without the “emotional trauma of a formal complaint process.” The ADR subcommittee incorporated the educative and rehabilitation aspect of ADR into the proposal for an educative track to deal with non-egregious behavior in a revised APA Ethics process. A formal ADR process may be appropriate for new tracks in State Licensing Board adjudicative process, or for the ethics committees of State Psychological Associations. In sum, certainly not all complaints against psychologists are amenable to mediation. Certainly protection of the public from incompetent or dangerous practitioners is among the highest obligations of a discipline source that carries an adjudicative component. Some issues will need adjudication due to the intractability of the parties. Others should be aired in a formal hearing because of the high level of public or professional interest, (such as Internet disputes) that are breaking new ground. Still others must proceed to adjudication because of the egregious nature of the misconduct, such as sexual relationships with clients, and to protect the public, the psychologist’s license should be revoked. Each case should be carefully examined to determine the appropriateness of offering mediation as a resolution alternative. However, in those cases where the psychologist is not incompetent or an immediate threat to the public, mediation can often provide a resolution to a complainant’s concerns, while being far more humane and saving the career of a misguided psychologist. Dr. Janet Hibel is an Independent Practice in Palm Beach Gardens, Florida. She is completing her third year on the Ethics Committee as a voting member, representing counseling psychologists with expertise in managed care. In addition, she is President of the Palm Chapter of the Florida Psychological Association. Her address is 8259 North Military Trail, Suite 9, Palm Beach Gardens, FL 33410. E-mail: JanetDoc@aol.com |