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The following paper was presented at the symposium titled “Psychology
Regulation—Getting It Right with Ethics, Licensing, and Laws,” held at
the Annual Conference of the American Psychological Association in
San Francisco on August 17, 2007.
TODAY’S REALITY FOR THE PRACTICE OF PSYCHOLOGY
Robert H. Woody
University of Nebraska at Omaha
This symposium is dedicated to creating a positive framework for the
regulation of psychological practices. To the chagrin of some folks who
advocate professional associations’ being in the driver’s seat for regulation,
it can no longer be disputed that the law has the ultimate authority for
defining propriety and impropriety for professional practices and policing
for negligent, malevolent, or nefarious service providers.
As a preamble to the topic of regulation, it is important to
acknowledge that being a “profession” carries with it a social responsibility,
which can become a legal mandate. Anyone enjoying the benefits accorded
to professionals must adhere to ethics that will protect service users and
offer quality care to promote human resources for society. The privilege to
practice professionally is not a vested right, and will always be subject to the
sociological tenets aligned with “professional” status.
The Shift in Authority Over Psychology
Thirty-plus years ago, there were three major events that redefined the
regulation of psychology:
First, the duty-to-warn cases, such as Tarasoff, made it clear that the
needs of society superseded the preferences of psychologists, such as
about maintaining confidentiality.
Second, psychologists quested for be licensed by state governments,
ostensibly to assure that the public would be able to identified the
qualified service providers; but somewhat surreptitiously, there was
also the motive to increase third-party payments for services.
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Third, reluctance to file law suits against mental health practitioners
dissolved, and there was a proliferation of legal actions taken against
psychologists.
These three defining moments provided the launching pad for the speedy
surge of governmental regulation of psychological practices.
By becoming participants in the health care industry, psychologists
plunged into the murky waters of governmental control. For example, in the
late 1980s, the Federal Trade Commission pressed for revision of the APA
code of ethics to accommodate more open competition in the clinical
marketplace.
Moving into the 1990s, legal actions were threatened or taken against
ethics committees. Numerous state psychological associations abandoned
adjudications, favoring an “educative” function. This opened the door wider
for state legislatures to promulgate statutes and administrative code rules for
imposing greater regulatory authority over psychological practices.
The Contemporary Role for Psychology in Regulation
With the foregoing historical framework, the societal dictate became
clearly that: (1) psychology, such as through the APA, must continue to
influence and guide public policies and laws; but (2) the regulation per se
should be left to the government. Today, psychology is relegated to a role
that is more educative or advisory than determinative.
The professional psychological association, with its code of ethics, is
not obsolete or antiquated. If anything, it is now more germane to public
welfare than ever before. However, the profession can no longer determine
solely or even primarily the standards for the profession. In the present day,
legal authority over psychological practices rests with the government.
Legal Authority Over the Regulation of Psychology
In examining the legal aspects of regulation, there are several
predicates. The Fourteenth Amendment of the U. S. Constitution recognizes
a state’s right to establish regulatory laws, including for commerce and the
general welfare of the public. The legislative process leads to statutes that
are promulgated and designated to be administered by a state agency, such
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as the Department of Health (with its Board of Psychology). The state
agency can provide administrative code rules that define how the statutory
law will be interpreted, implemented, and administered. Any given state
jurisdiction has its unique laws and rules, and although there may be
similarities to certain other jurisdictions, interstate regulation of psychology,
rightly or wrongly, is minimal and secondary to “home rule.”
With the widespread advent of governmental regulation, facilitated by
the liability faced by professional associations, the traditional ethics
committee has been reduced substantially in its influence on and regulation
of psychological practices. Consequently, the APA ethics code conveys
aspirations, and the standards lack prescriptive and proscriptive specificity.
This is not a negative statement about the APA code of ethics; to the
contrary, the APA code of ethics is highly valuable for practitioners and
government regulators alike, but in modern society, a professional code of
ethics is less defining that was true in yesteryears.
In a sense, malpractice cases may be viewed as contributing to the
regulation of psychological practices, but only in an implicit way. When a
psychologist faces a legal action, say for professional negligence, the
standard of care accepted by the trier of fact will likely be a reflection of the
laws and rules from the licensing board. Professional ethics, if codified as
part of the licensing law, will potentially be embraced, but some
jurisdictions have not adopted, say, the APA code of ethics per se.
Problems in Governmental Regulation of Psychology
A major problem that emerges from licensing boards is that the
statutes and administrative code rules are mandates but seldom detailed
enough for the practitioner to be able to “cookbook” the correct answer for a
conflict or question that he or she encounters with a client. Therefore, the
cornerstone for satisfying governmental regulation is for the psychologist to
be well schooled in professional ethics.
Regrettably, it seems that, all too often, a psychologist has received
minimal (inadequate?) training in ethical decision-making during graduate
school. Notwithstanding a requirement for licensure renewal to include
continuing education in ethics and laws, the psychologist who never learned
astute ethical decision-making cannot appreciate fully (adequately?) the
ethical and legal implications of a situation. That is, the faulty foundation
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relevant to ethical decision-making portends to leave the practitioner with a
distinct vulnerability,
Further, it is commonplace to encounter a psychologist who has
erroneous ideas about ethical principles and standards. It seems to be human
nature to cling to the original notions about a subject or principle, such as
continuing to rely on ethical ideas taught in graduate school (which may
have been years in the past).
Relevant to ethics and standards, the psychologist cannot rely on
tradition for tradition sake; the psychologist must maintain a contemporary
understanding and always seek to refine the analytic skills needed for wise
ethical decision-making. For the practitioner, a failure to remain current and
continue to develop better ethical decision-making may be due, at least in
part, to the real-world dilemma of: (1) being isolated from a learning
environment; and (2) giving priority to income-generating activities (as
opposed to studying, pondering, and discussing ethical issues with
colleagues).
A shibboleth for effective regulation arises from character factors
possessed by Board or Committee members. The seats are gained by
political appointment. Yes, although there are elections within APA, the
coalitions that advocate chosen candidates for offices constitute a powerful
political force, which influences the selection of members for, among other
forums, the APA Ethics Committee.
Countless board and committee members have reported that it is a
heady experience to be appointed and believe that they are vested with the
authority to make idiosyncratic decisions:
To counter an attorney’s argument based on APA ethics, one board
member literally pounded the table and shouted: “I don’t care what
APA says, as long as I am Chair of this Board, the standards for this
state will be what I say they are!”
On an ethics committee, deliberations and decisions based on
“political correctness” were often witnessed.
Numerous prosecuting attorneys have lamented (in effect) that
licensing boards “want to impose discipline for even slight errors,
even when the law specifies it must be ‘failing to meet the minimum
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standards of performance’—board members take an ‘holier than thou’
attitude and want to require perfection.”
Stated differently, there is ample reason for believing that regulatory boards
or ethics committees do not operate objectively or free from bias.
The existing governmental regulatory system is certainly not perfect.
Given the previous examples, there is reason to wonder if psychologists
should be limited to defining ethics, guidelines, and standards, and kept out
of the adjudications—leaving the latter to attorneys and administrative law
judges. Also, it could be argued that psychology should be pressed into
improving ethics training, as would lead to enhanced ethics-based decisionmaking in day-to-day practices.
The Long and Winding Road to Regulation
Earlier it was noted that professional ethics codes are less defining
than in yesteryears. Hearing the word “yesteryear” may trigger the
recollection of the booming voice of announcer Fran Striker calling for allAmericans to “return with us now to those thrilling days of yesterday”—and
then the William Tell Overture would start and the Lone Ranger will call out
“Hi-Ho, Silver!” With all due respect to the both Fran Striker and Clayton
Moore, the Lone Ranger, psychologists cannot and should not aspire to
return to the yesterday—plus there is reason to question whether they were,
in fact, “thrilling days” in the yesterday.
When professional associations defined practice standards and
administered adjudications of wrongdoing, psychology was in its embryonic
state. In retrospect, the policing by professional associations was too often
plagued by an “Old Boys/Old Girls” mentality. By relying on governmental
regulation and legally based adjudications, psychology can justly claim
maturity.
In the future, professional psychological associations should
assiduously champion that the personal idiosyncrasies, political correctness
and bias, and zealous over-reaching by governmental regulatory sources be
eliminated. There should be a professional demand for better legal
definitions, a level playing field for psychologists responding to a complaint,
and adjudicatory fairness and wisdom.
***
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Robert H. Woody, PhD, ScD, JD, ABPP (Clinical & Forensic), is a
Professor of Psychology at the University of Nebraska at Omaha, and an
attorney in private practice in Omaha and Tallahassee. His website is:
www.bobwoodyhelpspsychology.com
Copyright: Robert H. Woody, 2007
Copyright: R. H. Woody, 2007