Even experienced therapists can find themselves in ethical grey areas. To keep myself out of hot water, I examined recent trends in ethical violations nationally and within the state of Oregon.
IMAGE CREDIT: Contemplative Insight. Rafal Olbinski (2013). Acrylic & oil on canvas.
Mental health practitioners are obligated to follow professional ethics codes and federal, state, and local laws. Whereas legal obligations are defined and enforced by the government’s Legislative and Executive branches, respectively, ethical regulations are defined by state licensing boards and “enforced” by these boards in addition to agency ethics and oversight committees. Referrals to these boards and committees may result in investigation and penalties for failure to observe professional responsibilities. In this post, I'll assess state and national trends in violations reported to state licensure boards and identify the most common infringements and sanctions applied to them, and provide an outline for guidance in an ethical dilemma.
While preparing this critique, I performed web searches for disciplinary meeting minutes of the Georgia (Board of Professional Counselors, Social Workers, and Marriage & Family Therapists), Washington (Washington Association for Marriage and Family Therapy and Washington State Department of Health), and Oregon state (Oregon Board of Licensed Professional Counselors and Therapists, OBLPCT) licensing boards; however, although the Georgia and Washington licensing boards do make their meeting minutes available to the public, these minutes do not include records of disciplinary motions or actions. Conversely, Oregon’s OBLPCT minutes, as well as a chronological report of disciplinary actions taken between January 2008 and June 2022, are available online in compliance with state public records law. I was able to leverage the OBLPCT Disciplinary Report for the state-specific aspects of this paper, but have also included data from the Association of Marital and Family Therapy Regulatory Boards (AMFTRB) for a national perspective on violations of state and professional ethics.
National Trends
A 2020 AMFTRB-commissioned study examining state disciplinary investigations and sanctions between 2008 and 2018 revealed a total 2609 violations over 1241 cases (most cases concerned multiple violations). Practitioners in California incurred the largest number of violations over the ten-year period, at 889 (71.6%), followed by Minnesota (46), Colorado (32), Tennessee and Texas (30), Idaho (22), and Oregon and Kansas (20). California practitioners were most often cited for misdemeanor criminal charges, substance use or impairment, unprofessional conduct, or failure to meet continuing education requirements which, depending on the violation, incurred penalties ranging from fines, court costs, and required continuing education to licensure restriction, probationary licensure, or licensure revocation; excluding California, the most common violations included sexual and nonsexual relationships, failure to meet continuing education requirements, practicing while unlicensed or with an expired license, or misrepresentative statements on licensure application or renewal, and these violations incurred penalties ranging from fines, court and administrative costs, and continuing education to letters of reprimand, additional supervision, licensure application denial, and relinquishment of licensure. Notably, violations across all states were most frequently reported for practitioners in their first ten years of practice (55.9%), and approximately half of those violations (27.2%) occurred within years two through five of practice, whereas violations decreased for practitioners in their eleventh year and beyond. The AMFTRB’s inspection of the violations indicated that the most common “prohibited activities” across all states included misrepresentation, such as practicing without a current license or outside the practitioner’s training and competence, use of deceptive advertising, or deception in applying for or renewing licensure; habitual use of substances or practicing under the influence of a mental, physical, or substance abuse disorder or non-prescribed drugs or alcohol; exploitation, including sexual contact or other intimacy with a current client, former clients within their jurisdiction’s defined time, or supervisees, dual relationships with or undue influence on clients, former clients, or supervisees, or acceptance of referrals for financial gain; violations of confidentiality or noncompliance with mandatory disclosure, or failure to maintain or dispose of records; failure to disclose financial arrangements and fees; failure to terminate therapy or refer to another provider when indicated, or client abandonment; discriminatory treatment; and other examples of “professional” or “gross” incompetence. The most common sanctions across all cases were probation, denial, revocation, or suspension of a license, followed by misdemeanor citations, warnings or letters of reprimand, required participation in additional education, and fines. State licensure boards were found to consider the provider’s motives and preexisting patterns of misconduct, the degree of negligence or intentionality involved, length of time in practice, and the adverse impact to the clients or public, when making their recommendations for sanctions.
Disciplinary Trends in Oregon
Oregon requires that LMFTs adhere to the American Counseling Association Code of Ethics, rather than that of the American Association of Marriage and Family Therapists, as is common in most states. Additionally, the OBLPCT Disciplinary Report does not list demographic information, such as years in practice, for sanctioned practitioners. Despite these caveats, however, reported violations in Oregon over the 2008-2022 period comported with the AMFTRB’s national statistics in that many violations corresponded to misrepresentation in advertising, practice, or license application or renewal, which typically incurred fines, reprimands, required supervision or continuing education, or denial or revocation of a license or license application; exploitation, including sexual or otherwise inappropriate relationships with clients, resulting in license revocation and fines; failure to obtain informed consent, or to protect the security or confidentiality of client identity or files, incurring required education, fines, and probation; practice or habitual use of addictive or controlled substances, resulting in reprimand and fines, in addition to evaluation for continued practice; practicing outside experience and scope, incurring reprimand and fines; and failure to report suspected abuse, resulting in required supervision, continuing education, and fines. Much less frequent violations included dispensation of prescription medications, insurance fraud, and failure to provide client records to a parent due to loss or destruction of the records. In less severe cases, these practitioners received letters of reprimand, whereas in the most extreme cases, providers were permanently barred from holding an LPC or LMFT license in the state. The OBLPCT did not provide any data with respect to its rationale for sanction selection in any cases.
Violation Prevention
Wilcoxon and colleagues have noted that professional codes of ethics, while generally aspirational, can minimize uncertainty in some ethical dilemmas. Although these codes differ by originating organization, they also share commonalities in the form of concern and respect for clients’ welfare, values, confidentiality, and privacy, the obligation to adhere to personal and professional boundaries, and to maintain practice within the therapist’s scope of confidence. The most common violations cited by the AMFTRB and OBLPCT are specifically addressed in both the AAMFT and ACA codes of ethics: boundary violations and exploitative practices, including sexual and inappropriate nonsexual relationships with clients, former clients, and supervisees are covered in AAMFT Code of Ethics sections I, III.8, and IV, and in ACA Section A5; violations of confidentiality in AAMFT Section II and ACA Section B; and the obligation to obtain informed (although not necessarily written) consent and terminate therapy when indicated without abandoning the client in AAMFT Sections I, II, and VIII, and ACA Section B2. Finally, misrepresentation – in licensure application or renewal, advertising, and practice, including misrepresentation of credentials, expertise, or expectations – is expressly prohibited by AAMFT VIII and IX and ACA C2. These violations also conflict with common principle and relational ethics models, in that they infringe upon the principles of client autonomy and the therapist’s beneficence, nonmaleficence, justice, and fidelity in the first case and those of equality, compassion, and communalism in the context of “duty to care” in the second. Moreover, despite observations by some authors that most ethical violations are inadvertent and must be addressed by continual self-monitoring and therapist-initiated remediation, some of the ethical breaches cited here, such as sexual relationships with active clients, dispensing medication, and practicing while under the influence, are so egregious, and conscious action so requisite to them, that it is difficult to claim that they were accidental. In these cases, it is merely a matter of the practitioner’s adherence or non-adherence to ethical principles and, in the absence of specific mitigating factors, the violator can only comply with the sanctions imposed.
With respect to other violations, however, a provider may find themselves in an ethical “grey area.” The AMFTRB data would appear to suggest a “danger zone” within the first two to five years of practice, and although it is not possible to discern the specific violations committed at this stage with the data provided, it would be reasonable to assume that this “grey area” is compounded by a lack of clinical experience. Therapist “misrepresentation” – of their scope of competency, in advertising (such as soliciting endorsements or making unsubstantiated claims), or in practice (omitting procurement of informed consent with respect to financial arrangements or other expectations) – may exemplify this uncertainty, particularly when a nascent practitioner feels pressured to establish themselves as a professional and to earn a reputation among the community which will serve to support future referrals. Such violations are not readily amenable to evaluation under client-centered principle ethics such as the Kitchener model (autonomy, beneficence, justice, et al.), or at least such models would not provide concrete guidance. Therefore, a more directive approach, like that recommended by Gerald Corey and colleagues (2014), can be used to suggest an appropriate course of action.
The Corey model is depicted in the image to the left. Taking honesty in advertising as an example, the practitioner may identify details of their biography, clinical scope of practice, and other items which may be misinterpreted by the target audience, keeping in mind that many potential clients have never been in therapy and know little of what to expect, but may have unreasonable expectations of therapy and therapeutic success. The practitioner may then refer to ethical standards and the laws and regulations of their employer and geographic area for general guidelines and standards for advertising, and consult with colleagues or legal counsel for alternative viewpoints and recommendations. Finally, the practitioner may consider different approaches or edits recommended during the consultation step and the potential consequences (misinterpretations) for each approach. This decision-making process should always be thoroughly documented for future reference.
My personal ethical decision model
Notably, too, many other ethical decision-making models exist, and may be generally divided into those based on expected consequences (consequentialism), maximization of potential benefit to the client (utilitarianism), an appeal to “highest ideals” to determine the “best” action or to reason an action from intention (principle or virtue ethics, respectively), recognition of the “duty of care” and the consequent considerations of equity, compassion and communalism (relational/care ethics), or extrapolation from previous cases (casuistry). These decision-making models often provide clearer reasoning and deeper guidance than professional codes of ethics but may nonetheless be limited in their applicability to specific cases. The Kitchener model, for example, offers a quasi-objective, structured foundation for ethical decision-making, but its underlying principles may conflict with clients’ personal or socioculturally-defined values -- interventions may be irrelevant or damaging to clients or their relationships due to cultural factors and may even conflict with other foundational principles (e.g., involuntary hospitalization, wherein beneficence conflicts with autonomy). Thus, ethical codes, law, and decision-making models must be seen as merely contributory factors in the decisional process: ultimately, courses of action require the therapist’s judgement and careful deliberation.
In consideration of the wealth of ethical models, and my eclectic approach to life, I'll conclude this post by offering my own decision-making model, one which integrates guidance from the AAMFT Code of Ethics, recommendations by Corey et al. (2014), the Transcultural Integrative Model of Garcia et al. (2003), and principles of the Kitchener model. This is by no means exhaustive or infallible, but it's proven to be a useful starting point.
Conclusion
Note that the Corey model is only one possible approach to the (fairly concrete) issue of ethical advertising and to ethical scenarios in general. Practitioners are encouraged to familiarize themselves with the legal and ethical obligations assigned to them and to continually engage in introspection and remediation of ethical dilemmas in all aspects of clinical practice. The AMFTRB and OBLPCT findings also suggest that boundary and honesty issues give rise to the most common violations of ethical codes, particularly during the initial years of practice, and practitioners should particularly avail themselves of the input of more experienced colleagues during this period.
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