Laws and Ethics Course > Chapter 3 - LCSW, MFT and Nursing Corporations

Chapter 3: The Laws and Regulations

Licensed Clinical Social Worker Corporations, Marriage and Family Therapist Corporations and Nursing Corporations must abide by the Moscone-Knox Professional Corporation Act.To see the full code link here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=corp&group=13001-14000&file=13400-13410

These corporations are authorized to render professional services pursuant to a license such as doctors, lawyers, registered nurses, social workers and marriage and family therapists.There are advantages and disadvantages to forming corporations including liability issues and tax issues.If you are interested in forming your own corporation or even doing private practice as an individual the following website can be helpful: http://nolo.com A particularly useful book found at that website is Working for Yourself by Attorney Stephen Fishman. (There is no connection or relationship, financial or otherwise, between Mr. Fishman or Nolo Press and the author). It is also very important to speak to an experienced and knowledgeable tax professional.

Disciplinary Issues

In the State of California BBS members have expressed concerns over the ethical violations in a number of disciplinary cases.It was expressed that the laws and ethics had not been taught sufficiently and the constant changing of laws and regulations required a revolving requirement of training.Thus the requirement of six hour of training is now required, the only such required course for each license renewal period. Effective January 1, 2004.For minutes from a BBS board meeting discussing this issue click the following link: http://www.bbs.ca.gov/pdf/enf1100min.pdf

The following are some violations which can result in the suspension, revocation or denial of a license or registration:

Unprofessional conduct cited in the laws and regulations include but are not limited to:

  • The conviction of a crime that affects, or is related to, the services provided under the license
  • Securing a license or registration dishonestly
  • Substance abuse
  • Gross negligence or incompetence
  • Employing a non-qualified person (unlicensed, etc.) to provide services where a license, etc. is required
  • Intentionally causing physical or emotional harm to a client
  • Engaging in sexual relations with a client, or a former client within two years following termination of therapy or soliciting sexual relations with a client
  • Performing, or holding oneself out as being able to perform, or offering to perform any service that falls outside the scope of the held license
  • Failure to maintain confidentiality, except as permitted by law
  • Failure to disclose to the client prior to the commencement of treatment the fee to be charged
  • Failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered(BBS, L&R Code)

Similarly Nurses are also expected to maintain appropriate levels of conduct and competence.The following regulations define gross negligence and incompetence:
Gross Negligence:

"..."gross negligence" includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life." (Title 16, Article 4, 1442)

Incompetence:

"..."incompetence" means the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse" (CA Title 16, Article 4, 1443)

Codes of Ethics

Professional organizations, such as the National Association of Social Workers (NASW), the American Association of Marriage and Family Therapists (AAMFT), and the American Nursing Association (ANA)have developed and, from time to time, revise codes of ethics to provide standards and guidance to licensed professionals.Each code is worthwhile to look at and become familiar with for all healthcare practitioners.Because there are innumerable ways to violate appropriate practices, the codes are not meant to be an exhaustive list of rules, but rather values and principles that guide healthcare professionals in their providing of services. If these values, purposes and principles are followed, along with a heavy dose of common sense, clients will reap the benefit of effective services and the healthcare professions will grow stronger still. As stated in the NASW code of ethics Preamble "A code of ethics cannot guarantee ethical behavior"...Rather a code of ethics sets forth values, ethical principles, and ethical standards to which professionals aspire and by which their actions can be judged."

The links to the different organizations Code of Ethics are here:
NASW:http://www.socialworkers.org/pubs/code/code.asp

AAMFT: http://www.aamft.org/resources/LRMPlan/Ethics/ethicscode2001.asp

ANA: http://www.nursingworld.org/ethics/code/protected_nwcoe303.htm

IV.Applying Ethical Principles in Practice

As already covered, having a working knowledge of current laws and ethics empowers you both in being a more effective healthcare practitioner, and strengthens you against the possibility of litigation, criminal action, or action against your license and livelihood.Although reviewing laws and regulations can be tedious, the violation of such and the consequences that come are worse. Laws, ethics and regulations also give the consumer confidence of what they can expect from you and will therefore be more likely to seek your services.

The importance of ethics in society is clear.Take going to a mechanic: an evil, unethical mechanic.My wife took her car to such a person once. Her car was making an unflattering noise. The mechanic told her he would need to replace the catalytic converter for something like $1000.She took the car to another mechanic and he fixed it for under $100.He just needed to replace a small part of the engine.

Now, you could argue that most auto mechanics are ethical and try to do the best they can and stand behind their work. However, one bad mechanic's reputation can tarnish the reputation of all mechanics.When you practice your profession, you are not only representing yourself, but all licensed professionals in your field.What will clients tell their friends and family about their experience in therapy?What happens when a bad story hits the news?People who really need help will be reluctant to do so because of what they hear.

An Ethical Philosophy of Practice

It is wise for every professional to have a philosophy of practice made up of principles and values that help guide their services. The professional codes of ethics help define these principles and values.The following is also an example of such principles "gathered from a variety of sources and experiences" by Dean H. Hepworth and Jo Ann Larsen (1986).
  • People are capable of making their own choices and decisions.Although controlled to some extent by their environment, they are able to direct their lives more than they realize.They always have freedom and responsibility to exercise in shaping their own lives.
  • Helping persons have a responsibility to assist people to achieve maximal independence.Clients grow in strength as social workers promote independent action.
  • Helping persons have a responsibility to work toward changing the environmental influences that adversely impact upon clients.
  • Human behavior is purposive and goal directed, although the purpose and goals are often not readily discernible.
  • People are capable of learning new behaviors.Helping professionals have a responsibility to assist people to discover and employ their strengths and to affirm their capacity to grow and change.
  • Although problems of living may stem from past relationships and events, and although limited focus on the past may be beneficial in some instances, most difficulties can be resolved by focusing on present choices and by mobilizing extant and latent strengths and coping patterns.
  • Problems of living are often produced by inadequate knowledge and/or coping mechanisms.By gaining knowledge and learning new skills, people often not only resolve difficulties, but also achieve personal growth in the process.
  • Many problems of living are societal and systemic rather than personal or interpersonal.By learning to implement effective strategies, people can effect changes in various types of systems.
  • Adversity is an inherent part of the human condition, but human beings grow in strength through meeting adversities. Life's crises, therefore, represent opportunities for growth and mastery as well as sources of strain.
  • Human beings want and need to have self-esteem.To gain and maintain self-esteem, people need confirmation of their worth from significant others (spouse, parents, children, other relatives, and friends).Many interpersonal conflicts are indirect expressions of not feeling loved and esteemed.
  • Human growth occurs in the context of relationships with other human beings.Growth in helping relationships is fostered by the power of love, as manifested by acceptance, respect, concern, encouragement, and affirmation of clients' self-worth.
  • A prized aspect of human growth is becoming an open, authentic person. Open, authentic behavior by social workers fosters like behavior in clients.
  • Another prized aspect of human growth is becoming attuned to, concerned about, and responsive to the needs of loved ones and other people.
  • To live in the reality of the present moment is to exercise potentialities more fully.
  • Means to an end are equally important as the ends themselves.Any means of assisting clients to achieve goals should safeguard dignity, self-esteem, self-determination, and confidentiality.
  • Awareness of self is the first step to self-realization; astute and sensitive understanding by social workers facilitates self-understanding by clients. A genuine desire to understand is a gift of the self.
  • Peoples' right to their own values and belief systems are inviolate.Nevertheless, certain values and beliefs lead to dysfunctional and self-defeating behavior. When such is the case, social workers have a responsibility to assist clients to face these aspects of their difficulties.
  • (Pages 20-21)

The complexities in managing ethical dilemmas

"[Healthcare professionals] will inevitably encounter ethical dilemmas in their work. Ethical dilemmas can impact on [professionals] positively or negatively, at a number of levels, and in a range of ways" (McAuliffe, 2005). There are some rules that are clear cut. Most of these are written as laws or regulations. Other issues that confront the healthcare professional are written in ethical codes or rules of organizations. Sometimes the ethics of an organization and that of a profession may conflict.

McAuliffe points out that "identification of ethical dilemmas in practice situations is not always an easy task. While the social work literature provides many examples of definitions of the term "ethical dilemma," a useful construct has been provided by Rothman (1998) to assist in determining the ethical components of a case, in order to decide whether an ethical dilemma actually exists. Rothman suggests applying a "dilemma formulation" to a practice situation that will reduce the conflicting principles to _____v. _____." An example might be an agency policy mandating communication to parents of their daughter's desire to obtain an abortion versus maintaining confidentiality of the client.

As mentioned before, no code or laws can be written to cover every possible issue of ethics as it relates to the healthcare professional and their clients. For example: most of us, (hopefully all of us) would agree that it is not okay to steal; in fact, absolutely wrong to steal. But is it wrong in all circumstances?

For example: Many are familiar with the story of Jean Valjean in Victor Hugo's book, Les Miserables. Jean Valjean steals a loaf of bread, a crime for which he is sentenced to prison. Was stealing the loaf of bread wrong? It was against the law. Or was there a greater wrong in not stealing the loaf of bread. Jean Valjean stole the bread to feed his sister's starving children. He was not able to provide food for them in any other way he had tried. What is the worse crime: to steal the bread, or allow the children to starve?

Regardless of your answer to such a dilemma, it is a good bet that a number of people would disagree with you. So there are times when there is a not a clear cut path but differing opinions as to what is the right decision in a given set of circumstances.

Another ethical dilemma was presented on the television show 24: Terrorists who had already shot down Air Force One and critically injured the President of the United States, and who were also responsible for causing nuclear power plant melt downs where thousands died, have now gotten hold of a nuclear warhead, and the government does not know where they are.They do, however, have an individual in custody who does know, and who has information that will help the agents recover the warhead and capture the terrorists responsible. The anticipation is the warhead will be used as quickly as possible. The man they have in custody refuses to talk.Should he be tortured in violation of all such rules and regulations to the treatment of suspects?

Again, there are strong arguments and doubtless strong opinions for both sides of this issue. The point of this course is not to debate the validity of the arguments, but to present some of the complexities as it applies to laws and ethics. These examples illustrate that there can be more than one answer to a problem, thus a dilemma is created.A dilemma is a situation when there are two competing principles that must be considered against each other. Either may seem like the right thing to do, or it may be a case of agency policy verses ethics. As Reamer stated, "...for a "dilemma" to exist, there must be a weighing up of competing principles within a context of mutually exclusive courses of action" (1983).

"Further clarification has been offered about the distinction between technical, legal and ethical issues, with the latter referring to those problematic situations that in some way relate to rights, responsibilities and obligations that have a moral and value-based foundation (Banks, 2001). As the debate about ethics and practice standards inhabits a contextual and often contested landscape within social work, it is acknowledged that what constitutes an ethical dilemma for one social worker, may not necessarily constitute an ethical dilemma for another social worker, even within the same workplace or in relation to the same practice situation. It is important then, to recognise that when a social worker becomes involved in what they consider to be a moral quandary, this can be an intensely personal experience that can cut deep to the heart of entrenched personal values."

(McAuliffe, 2005)

Let's consider ethical dilemmas that are similar to those healthcare providers may have to address. Healthcare providers often have to make difficult decisions as to which ethic should take precedence in different situations. For example, a practitioner may recognize that a particular agency policy is detrimental to clients, but may not want to question it because it may threaten their position in that agency, or create conflict in relationships with those she works with.Another dilemma occurs when the client confides information that indicated they are a threat to the health or well being of another person. Intervening in such a situation means disclosing confidential information to others. (Hepworth and Larsen, 1986)

F.G. Reamer developed a general guideline to assist providers in making difficult decisions they typically encounter. According to Reamer, "one's actual duty in instances where prima facie duties conflict should be based on a determination of which duty is most necessary for the performance of action and represents the least threat to the well-being of individuals" (p. 583)

The principles Reamer uses also help the practitioner in determining priorities in that "it is based on a ranking of goods and resources according to the extent to which they are necessary for individual well-being and the extent to which their absence threatens the opportunities and abilities of individuals to fulfill their intentions" (p. 583). Reamer clarifies that "goods and resources can be ranked, qualitatively ranging from, on one hand, those which are necessary for the performance of any and all human action (life, physical health, food, shelter, and basic mental equilibrium) to, on the other, goods and resources which may enhance an individual's ability to fulfill his or her goal but are not, in the strict sense, necessary for human action (excessive wealth, recreational facilities, and artistic artifacts.)" (Pp.583-34).

It is obvious, then, that choices vital to enabling relevant others (clients, colleagues and employers) to take essential actions take precedence over choices that are less essential.

Reamer gives a specific situation of how these principles can be applied:

"The duty to save a human life would take precedence over the duty to keep information shared by a client confidential because the former is more necessary for the possibility of human action (that is, represents a greater threat to basic human well-being) than is the latter. Thus, if conflicts force practitioners to make hard choices, protecting individuals from threats to life itself is more important than, for example, keeping information confidential, telling the truth, keeping promises, and avoiding deception." (p. 584).

Ethical dilemmas in treatment may appear in many different scenarios. As a practitioner, you have seen, and will continue to see, all sorts of people with all sorts of problems; some you had probably not even considered to be under the realm of possibility. McAuliffe studied ethical dilemmas that different social workers have to address and the effects of having to address them. A couple of possible dilemmas are illustrated here:

Case 1: A client dying of AIDS makes a confidential request that you supply him with information about euthanasia. Is it your ethical responsibility to provide information to the client? Would you provide that information to the client? You may have very strong values that run contrary to euthanasia. Many religiously oppose it. If you are in agreement that it is somebody's right, what if you live in a state where it is illegal? Or if it is legal but it is against agency policy to provide such information. Also, do you make a note in the medical chart of his request, or even report it to somebody else. Or if you oppose it, but you live in a state where it is legal, do you provide the information to him?

Case 2: A client of a disability service requested that Nell, the social worker, arrange respite care for her child, as she was no longer able to cope. No respite care was available due to lack of resources. Nell decided to covertly assist the mother to "abandon" the child so that she could receive emergency respite. The ethical dilemma, as framed by Nell, was that she assisted the mother to deceive the government, placing the client in a potentially difficult situation, and putting her own job at risk in the process. Was this the right thing to do? The ethical thing to do?

Having to face such ethical dilemmas regularly can bring a lot of pressure on the practitioner. Hawkins and Shotet (1989) drew explicit links between work-related stress and moral indecision, claiming that stress caused by moral indecision may manifest on the emotional, cognitive, behavioural and physical levels, and could affect front-line workers either personally and/or professionally.
Healthcare Practitioners need to be mindful of the risks inherent in dealing with ethical dilemmas in direct practice settings. As ethical dilemmas, by their very nature, involve a conflict of principles, social workers need to be clear about what principles are underpinning quality practice, and the professional responses that are expected by colleagues, managers, employers, and clients.

Social workers are strongly urged to consult others, to evaluate personal and professional value positions, to establish the legal, organizational and policy context, and have a sound working knowledge of ethical codes and standards of conduct (Congress 1999, Loewenberg, Dolgoff and Harrington 2001)

(McAuliffe, 2005).
______________________________________________________________________________
Question No.5. Which of the following are violations which can result in the suspension, revocation or denial of a license or registration:

a. Securing a license or registration dishonestly
b. Gross negligence or incompetence
c. Engaging in sexual relations with a client
d. Failure to maintain confidentiality, except as permitted by law
e. All of the above

Question No.6. Because there are innumerable ways to violate appropriate practices, the ethical codes are not meant to be an exhaustive list of rules, but rather values and principles that guide healthcare practitioners in their providing of services:

a. True
b. False

Question No.7.Psychotherapy is the use of psychosocial methods within a professional relationship:

a. To assist the person or persons to achieve a better psychosocial adaptation
b. To train employees in their privacy procedures
c. Both a and b
d. None of these

Question No.8. A code of ethics can guarantee ethical behavior.True/ False?

Question No.9.Professional organizations that develop and revise codes of ethics to licensed professionals are:

a. The National Association of Social Workers (NASW)
b. The American Association of Marriage and Family Therapists (AAMFT)
c. The American Nursing Association (ANA)
d. All of these

Question No.10. An extreme departure from the standard of nursing care which, the nurse knew, or should have known, could have jeopardized the client's health or life."

a Gross negligence
b. Incompetence
c. Counter-transference
d. Transference

Question No.11.According to Reamer, in resolving ethical dilemmas, which of these would receive the lowest ranking of importance for the healthcare practitioner in making a decision:

a. Physical Health
b. Shelter
c. Recreational activites
d. Basic mental equilibrium

Question No.12.According to Mechanic, values of social workers:

a. Are best and should be imposed upon their clients
b. Are all the same
c. Must be kept secret at all costs
d. Will be evident in therapy
 
Laws and Ethics Course > Chapter 3 - LCSW, MFT and Nursing Corporations
Page Last Modified On: October 10, 2015, 03:51 AM