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Ethics codes and the law
Within the addiction and mental health counseling professions, codes of ethics represent consensus standards of conduct, reflecting the professions' aspirations, expectations and obligations. They are adopted and relied upon by licensing boards, certification organizations, professional associations, and college and university graduate training programs. They serve to protect clients and others, educate the public, provide guidance to practitioners, provide a basis for regulatory oversight, and promote the profession's overall integrity. In many important ways, codes of professional ethics also directly and indirectly interface with our laws and legal system.
Ethics codes and legal cases
There are three legal arenas within which the conduct of addiction professionals is regulated: the criminal law system, the civil law system and the administrative law system. As a general rule, codes of ethics are not directly relevant to criminal law cases. While criminal conduct by a professional (e.g., fraudulent billing practices; sexual relations with a client) will always violate ethical principles, guilt or innocence in criminal cases is ultimately determined not by reference to ethics codes, but instead by statutes that specifically define illegal conduct.
Ethics codes do, however, often play an important role in civil law actions (e.g., professional malpractice claims) and in administrative law proceedings (e.g., licensing board disciplinary actions). In malpractice litigation, the aggrieved party, or plaintiff, typically asserts that he or she suffered injury as the result of the misconduct of another (the defendant). In these cases, the party claiming injury will have the burden of proving that the defendant acted negligently-that is, that the defendant's conduct violated the standard of care generally accepted within the professional community.
Professional ethics codes often are used as both a sword and a shield in malpractice litigation. Each party might contend that particular ethics code provisions support his or her claim that the professional's conduct in question was or was not ethical; that it did or did not violate accepted standards within the professional community.
If, for example, a client claimed that a defendant breached his or her confidentiality, failed to obtain informed consent, improperly engaged in a dual relationship, or provided incompetent services, the plaintiff likely would rely in part on provisions within an applicable code of ethics. The plaintiff would argue that such code provisions are evidence of the standard of practice by which the defendant professional's conduct should be measured. The professional likely would respond by denying the plaintiff's allegations, contending instead that his or her own conduct was proper and in accordance with the professional community's ethical standards. In this manner, ethics codes often play an important role in civil litigation, as each party uses them to support a legal position.
The third legal arena, and the one most likely to be encountered by licensed professionals, is administrative law. State legislatures enact laws intended to define and regulate the practice of most professions within their states, delegating to state agencies (e.g., licensing boards) the legal authority to administer those laws. The primary purpose of these state agencies is to protect the public. They develop and, after opportunity for public comment, enact administrative regulations that establish licensing procedures, professional practice criteria, and ethical rules and standards of conduct.
The licensing boards are generally also granted the legal authority to investigate complaints against the professionals they regulate, hold evidentiary hearings, and, if appropriate, assess disciplinary sanctions ranging from private and public reprimands to license revocation.
There are basic due process safeguards legally in place to ensure procedural fairness for the professional whose conduct a licensing board scrutinizes. These safeguards typically include the rights of the professional to know the nature of charges, the right to an evidentiary hearing, and the right to appeal the board's final decision.
Ethics codes and practice standards adopted by licensing boards mirror those recognized by the professions they regulate. Within the helping professions, the boards' codes of ethics address issues such as informed consent, confidentiality, boundaries, dual relationships, competency, recordkeeping and diversity/multiculturalism. If a counselor's client files a complaint with the state licensing authority, the board's public protection duties require that it determine if its administrative regulations (i.e., its rules, standards and/or code of ethics) have been violated and, if so, what discipline should be assessed.
In many states, licensing boards adopt some or all of the ethics code provisions of national professional associations. For example, the ethical principles and codes of the American Psychological Association (APA) and the American Counseling Association (ACA) have been adopted by many of the state licensing boards that regulate their respective professions. In such states, the professional associations' codes have effectively become administrative law, regulating the ethical conduct of all licensees statewide.
Thus, in many instances, the code of ethics adopted by a professional association can have consequences beyond its own voluntary membership. It can provide the legally enforceable ethical standards for a state's entire population of professional licensees, both association members and non-members.
Ethics codes and certification boards
In some states, addiction counselors are authorized to practice their profession as the result of a certification process, rather than a state-regulated licensure process. In a state using a certification process, a non-state agency, board or organization recognized by both the state and the profession develops rules, practice standards and ethics codes; it functions to educate and protect the public, to offer guidance to practitioners, to provide a basis for regulatory oversight, and to promote the integrity of the profession. The board awards certification to those who are sufficiently educated, trained and experienced, granting them professional status as qualified to practice addiction counseling within the state.
Like licensing boards, certification bodies typically investigate ethics complaints made against members. While procedures may vary significantly among certification organizations, an investigation is typically conducted and, if the matter is not resolved by negotiation and agreement between the parties, a formal evidentiary hearing is held. Throughout the process there are various due process safeguards in place to ensure procedural fairness for the professional whose conduct is under investigation.
If an ethics code violation is determined to have occurred, the certification board must evaluate its seriousness and assess an appropriate disciplinary sanction. Sanctions can include a reprimand, remediation (e.g., mandatory ethics training), and/or suspension or revocation of professional certification. The professional consequences of such disciplinary action can be significant, particularly for those addiction counselors whose conditions of employment require professional certification.
As is the case with some state licensing boards, many certification bodies will adopt as their own some or all of the ethics code provisions of a national professional association. Because of NAADAC's recognized status as the largest membership organization serving the addiction counseling profession, many state certifying bodies adopt NAADAC's Code of Ethics. In these states, all certified addiction professionals-NAADAC members and non-members alike-are subject to NAADAC's ethical standards adopted by the certification board.
Ethics codes and professional associations
All recognized helping professions have national associations and most have regional and/or state affiliates. While each association is unique in its particular focus and stated mission, all strive to educate and protect the public, provide resources and advocacy for their membership, and promote the integrity of their respective professions. They are a necessary component to professionalism. A fundamental feature common to all associations is that their codes of ethics represent consensus standards of conduct, reflecting the aspirations, expectations and obligations of each profession.
Professional associations enforce their codes of ethics in essentially a fashion similar to that of licensing boards and certification bodies: They receive, investigate and adjudicate complaints. In contrast to licensing and certification boards, professional associations typically have no legal authority to suspend, revoke or directly affect one's license or certification; their sanctioning authority is limited to revoking or placing conditions on one's membership. However, the broader consequences of disciplinary action by professional associations can be significant. Such action is usually required to be self-reported to licensing and certification bodies, as well as to professional insurance carriers.
As previously discussed, professional ethics codes are often relied upon by the parties in malpractice claims, with each litigant offering in evidence code provisions to support the propriety of his or her particular legal position. A variation of this litigation practice is seen in the 2010 case of Ward v. Wilbanks et al. (U.S. District Court, Case No. 09-CV-11237). There, Eastern Michigan University dismissed a graduate counseling student, Julia Ward, claiming that her religiously based refusal to counsel homosexuals violated the nondiscrimination provisions of the ACA's Code of Ethics, which the university had specifically adopted as establishing the ethical guidelines for its graduate counseling program.
In granting summary judgment in favor of the university, the lower court held that the ACA “… is a professional organization, and its Code of Ethics defines ethical behavior and best practices in governing the profession of counseling.” Ward's attorneys indicated an appeal was planned.
Irrespective of this case's final outcome, it offers an important illustration of how professional associations' codes of ethics can have far-reaching consequences, not only affecting malpractice litigation but also influencing ethical standards in college and university graduate training programs.
Conclusion
The ethics codes of the helping professions are inextricably tied to the day-to-day practice of those professions. Clinicians cannot successfully carry out their fiduciary responsibilities to their clients or uphold the integrity of their professions without adhering to the ethical and moral principles that are found in their codes of ethics. These codes are not simply boilerplate documents that exist in the abstract. They are living, breathing documents with real-world implications, especially in the legal arena, that trigger a panoply of rights, responsibilities and consequences.
As NAADAC moves toward final revision of its Code of Ethics in 2011, addiction professionals are well-advised to familiarize themselves with the new code and seek to apply its provisions consistently in their daily practices.
Take the Continuing Education Credits Quiz associated with this article on page 46.
Charles W. Hemingway, JD, MS, NCC, CADC-I, is a member of NAADAC, The Association for Addiction Professionals and its Ethics Committee. He practiced law in the U.S. Army and in private practice for 23 years, retiring in 2000. He currently is Executive Director of Central Oregon Veterans Outreach, a nonprofit veterans advocacy group. His e-mail address is hemingwaych@bendnet.com.Douglas S. Querin, JD, MA, CADC-I, is a member of NAADAC, The Association for Addiction Professionals and works as an attorney and counselor for the Oregon Attorney Assistance Program of the Oregon State Bar, providing mental health and addiction counseling services to lawyers, judges and law students. Addiction Professional 2011 March-April;9(2):18-21
