Responding to Ethical and Legal Issues Example

Ethical Decision Making Ethical decisions are rarely easy to arrive at, and dilemmas can be very complex. When counselors encounter ethical dilemmas, “they are expected to engage in a carefully considered ethical decision-making process” and use a “credible model of decision making that can bear public scrutiny of its application” (ACA, 2014, Purpose). Although no particular decision-making model has been shown to be universally effective or applicable, many models do exist, and we briefly review them here for your consideration.

One of the earliest models was A Practitioner’s Guide to Ethical Decision Making (Forester-Miller & Davis, 1995). This guide presented a practical, sequential, seven-step model (Herlihy & Corey, 2015a) that was based on the moral principles already discussed in this chapter. Over a decade later, Koocher and Keith-Spiegel (2016) presented a nine-step model that took a similar, logical, and primarily cognitive approach to ethical decision making. The assumption inherent in these models, that the goal of ethical decision making is to minimize subjectivity (Woody, 2013), has been challenged by some writers, particularly those with a feminist orientation (Hill, Glaser, & Harden, 1995; Meara et al., 1996; Rave & Larsen, 1995).

Feminists have cautioned that traditional ethical decision-making models represent the information processing style of White males, in that they are linear, logical, rational, dispassionate, abstract, and paternalistic. Feminists have suggested that ethical decision making that is also holistic, intuitive, emotional, compassionate, personal and contextual, and mutual may be more inclusive of other processing styles and more culturally appropriate. Feminist theorists have emphasized the importance of remembering that ethical decision making does not occur solely within the mind of the professional. Walden (2015) urged including the client in the process, noting that clients are empowered when counselors make ethical decisions with them rather than for them.

Early models were also criticized for neglecting to consider multicultural issues, which led to the development of several models that emphasized cultural sensitivity. Garcia, Cartwright, Winston, and Borzuchowska (2003) offered a transcultural integrative model as being more appropriate when working with clients from diverse cultural backgrounds. They incorporated virtue ethics (already described in this chapter), along with the feminist concepts of reflecting on one’s own feelings and balancing the perspectives of all involved.

They suggested that a vital component, to be included early in the decision-making process, is for counselors to reflect on their own world views and how these affect their interpretation of the ethical dilemma. Frame and Williams (2005) presented a culturally sensitive ethical decision-making model that, like the feminist models, was based in an ethic of care and a consideration of power dynamics. To increase multicultural sensitivity, they added the element of assessing acculturation and racial identity development of the counselor and client.

Herlihy and Watson (2006) offered a model based in a social justice perspective that puts multicultural competence at the core of the ethical reasoning process. The model is grounded in virtue ethics, cultural identity development, and collaborative decision making. Tarvydas, Ramos, and Estrada-Hernandez (2015) proposed an applied participatory ethics model that is based in social justice principles.

Cottone (2001) proposed a social constructivist model. Social constructivism is a relatively recent movement in the mental health field and purports that a person cannot know reality through individual contemplation because reality does not exist as objective fact. Rather, reality is socially constructed through interactions with others. Social constructivists see ethical decision making not as a process that occurs in the mind of the decision maker but as a process that is always made in interaction with at least one other person and that involves negotiating and consensualizing (Cottone, 2001).

A recent trend in ethical decision-making models seems to be the development of specialized models that are focused on counseling specific populations or on particular ethical issues (Deroche, Eckart, Lott, Park, & Raddler, 2015). Models have been offered for managing boundary issues (Gottlieb, 1993; Herlihy & Corey, 2015b), resolving value conflicts (Kocet & Herlihy, 2014), integrating spirituality and religion into counseling (Barnett & Johnson, 2015), treating eating disorders (Matusek & O’Dougherty, 2010), school counseling (Brown, Armstrong, Bore, & Simpson, 2017; Luke, Gilbride, & Goodrich, 2017), counseling military personnel (Prosek & Holm, 2014), practicing play therapy (Seymour & Rubin, 2006), and (for counselor educators) addressing problematic student behaviors (Letourneau, 2016).

Clearly, many ethical decision-making models exist, and we believe that no one model will be the most appropriate for every counselor or for every situation. It is important that you are familiar with several models so that you can select the model or models that are most helpful for the ethical dilemma you are facing. There is some evidence that, in practice, counselors may not be making full use of ethical decision-making models (Levitt, Farry, & Mazzarella, 2015). This practice could lead to problems if a counselor made what turned out to be a poor decision and a client was harmed. Responding to a complaint filed with the ACA or with a licensing board will be difficult if the counselor cannot demonstrate the use of a “credible ethical decision-making model” as required by the ACA Code of Ethics (2014). When you are faced with a difficult dilemma, you can do much to protect yourself by implementing the actions suggested in a model, being able to provide a rationale for deviating from the model, and documenting your decision-making process.

There is much to be learned from all the existing ethical decision-making models, and we do not endorse any one particular model as being the right one for everyone or in every circumstance. Instead, what follows is a description of steps that many of the models seem to have in common. We have tried to incorporate lessons that can be learned from principle and virtue ethics, feminist and multicultural ethics, social constructivism, and specialty models. We caution you to keep in mind that a listing of steps suggests that ethical decision making is a linear progression, when in reality counselors rarely follow a set sequence of steps to resolve an ethical dilemma. In practice, numerous aspects of ethical decision making occur simultaneously in a dynamic process (Woody, 2013).

Identify and define the problem. Before deciding what action to take when faced with a dilemma, “determine whether the matter truly involves ethics” (Koocher & Keith-Spiegel, 2008, p. 21) or is actually a legal or clinical issue. If a legal issue is involved, consult with an attorney. If you have a clinical issue, consult with your supervisor or a trusted colleague. If, indeed, you have an ethical dilemma, it is prudent to take time to reflect and gather information. Although you may feel some sense of urgency, rarely will decisions that have ethical dimensions have to be made immediately. Take time to consider what you know (or what you can find out) about the situation, applicable ethical guidelines, and any laws that might be relevant. Try to examine the problem from several perspectives and avoid searching for simplistic solutions.

Involve your client in the decision-making process. This is not a separate step in ethical decision making; rather, it should occur throughout the process. Walden (2015) reminded counselors that the client is an integral part of the ethical community of the counseling relationship. Including clients in the process both empowers them and is culturally appropriate practice. We can think of very few situations that would preclude making the client an active partner in decisions affecting that client.

Review relevant codes of ethics and the professional literature. Examine the codes of ethics of the professional organizations to which you belong (as well as the ethical standards of your state licensing board if you are licensed as a counselor) to see if your issue is addressed in them. Be sure to read the codes carefully, as there may be several standards that pertain to different aspects of the dilemma. Also, read the recent literature on the issue at hand. This will help to ensure that you are using the most up-to-date professional knowledge on the issue (Herlihy & Corey, 2015a).

Consider the principles and virtues. Reflect on how the moral principles apply to the problem. Identify ways that they compete with each other, and rank them in order of their priority in this situation. Consider how virtue ethics might apply in the situation as well. Rather than focus exclusively on what you need to do in the situation, also consider who you want to be and how any possible action might affect your sense of moral selfhood. Tune in to your feelings. Virtue ethicists believe that emotion informs judgment. Your feelings will influence how you interpret the dilemma, so it is important to consider what emotions you are experiencing as you contemplate the situation and your possible actions. To what extent are you being influenced, for instance, by emotions such as fear, self-doubt, or an overwhelming sense of responsibility? Being aware of your emotions, beliefs, values, and motivations can help guide you in your decision making.

Consult with colleagues or experts. Decisions made in isolation are rarely as sound as decisions made in consultation. Corey et al. (2019) have pointed out that poor ethical decision making often stems from our inability to view a situation objectively because we are emotionally invested in it or because our prejudices, values, or emotional needs are clouding our judgment. In addition, consultation would serve as an important element of your defense in court if your decision were challenged legally (Wheeler & Bertram, 2015).

Consider the context. Keep in mind that your worldview will affect how you interpret the dilemma, and that the client’s worldview and culture may differ from your own. The resolution that is chosen for the dilemma must not only feel right to you but must also be appropriate for the client. It is also important to remember that decisions occur in a context. Therefore, it is useful to reflect on the potential ramifications of a decision for the client’s family members, the community, and other professionals.

Identify desired outcomes and consider possible actions to achieve the outcomes. Even after thoughtful consideration, a single desired outcome rarely emerges in an ethical dilemma. There may be several outcomes you would hope to see achieved in a situation. Consider possible actions that you could take to achieve the desired outcomes. It may even be useful to list desired outcomes on one side of a page, and on the other side to generate possible actions that would facilitate the achievement of each of those outcomes. It is possible that implementing a particular action may achieve one desired outcome while eliminating another, forcing you to prioritize and choose one outcome at the expense of the other. Ponder the implications and consequences of each option for the client, for others who will be affected, and for yourself.

Choose and act on your choice. Once you have selected an action or series of actions, check to see whether your selected options are congruent with your ranking of the moral principles. Pay attention to how you feel about your choice. This final step involves strengthening your ego or gathering the moral courage to allow you to carry out your decision.

Even after the most careful deliberation, conscientious counselors cannot help but ask, “How can I know whether I’ve done the right thing?” You can apply several self-tests after you have resolved an ethical dilemma. The first three tests were suggested by Stadler (1986). First is the test of justice, in which you ask whether you would treat others the same in this situation. Second is the test of universality, which considers if you would be willing to recommend the course of action you followed to other counselors who find themselves in a similar situation. Third is the test of publicity: Are you willing to have your actions come to light and be known by others?

Another test is the reversibility test, which is a version of the Golden Rule; in this test you ask yourself if you would have made the same choice if you were in the client’s shoes or if your child or life partner were subject to that choice. The mentor test asks you to consider an individual whose integrity and judgment you trust and admire, and ask how that person might solve the dilemma (Strom-Gottfried, 2007). Finally, you can check for moral traces, which are lingering feelings of doubt, discomfort, or uncertainty that counselors may experience after they have resolved an ethical dilemma, particularly when expediency, politics, or self-interest have influenced the decision. Moral traces are unpleasant but perform an important function. They act as a warning sign that you may have set foot on an ethical slippery slope, as defined earlier in this chapter.

We hope you will return to this material on the ethical decision-making process as you ponder the case studies that are presented throughout this text. As you reflect on what you might do if you were the counselor in the case study, you can gain practice in applying a systematic model, as required by your code of ethics. Being an ethical professional involves a combination of knowledge, problem-solving skills and strategies, understanding of philosophical principles, and a virtuous character that leads one to respond with maturity, judgment, and wisdom (Bersoff, 1996).

It is a task that requires a lifelong commitment and is never really finished. Even the most experienced counselors who are intimately aware of the ethical standards wrestle with difficult ethical issues and dilemmas (Walden, Herlihy, & Ashton, 2003).

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