Resolving Ethical Issues

Standards for

Resolving Ethical Issues

1. Resolving Ethical Issues

1.01 Misuse of Psychologists’ Work

If psychologists learn of misuse or misrepresentation of their work, they take reasonable steps to

correct or minimize the misuse or misrepresentation.

Psychologists have professional and scientific responsibilities to society and to

the specific individuals, organizations, and communities with whom they work to

ensure that their work products are not misused or misrepresented. Psychologists

cannot reasonably be expected to anticipate all the ways in which their work can

be wrongly used. Thus, Standard 1.01 of the APA Ethics Code (APA, 2010c)

focuses on corrective action that must be taken when psychologists learn that

others have misused or misrepresented their work. To remedy misuse, psychologists

can write letters to or speak with interested parties, request retraction of

misrepresentations, or discuss with appropriate persons the corrective measures

to be taken.

􀀵 A school psychologist completed a report summarizing her assessment of a child

whose test results did not meet diagnostic criteria for serious emotional disturbance.

Several days later, she learned that the principal of her school had forwarded to the

superintendent of schools only those parts of the assessment report that supported

the principal’s desire to fill a special education quota by classifying the student as

having a serious emotional disturbance. The psychologist asked the principal to send

the entire report, explaining the ethical issues involved (Standard 1.03, Conflict

Between Ethics and Organizational Demands).

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Chapter 4 Standards for Resolving Ethical Issues——49

The phrase “reasonable steps” in Standard 1.01 recognizes that despite their

best efforts in some instances, psychologists may not be in a position to ensure

that their requests to correct misuse are followed. For example, if the research

psychologist whose work had been misrepresented did not have access to the

listserv and if the group refused requests for retraction, short of a civil suit, the

psychologist would have few corrective options. In other instances, it may not be

possible or appropriate to actively seek a correction. For example, during a trial,

attorneys may phrase questions that, by their nature, distort or otherwise lead to

misrepresentation of a psychologist’s testimony. In such instances, it is ethically

appropriate for psychologists at the time of their testimony to (a) rely on existing

corrective mechanisms (i.e., asking the judge to permit the psychologist to provide

clarification; responding as fully as possible to a related question during

cross-examination) or (b) refrain from corrective actions when an attempt to

remedy the misrepresentation would violate the rules of the court or the legal

rights of a complainant or defendant (see Standard 2.01f, Boundaries of

Competence). Psychologists should always document the corrective efforts made

to remedy known misuse or misrepresentations.

􀀵 A research psychologist learned that a special interest group had sent a listserv mailing

for financial contributions that misquoted and misrepresented the psychologist’s

writings as supporting the group’s cause. The psychologist contacted the group and

asked it to cease sending this e-mail to other potential contributors and to e-mail a

correction to the listserv recipients.

􀀵 A health psychologist who had developed a commercially marketed instrument for

assessing environmental and psychosocial risks for children diagnosed with asthma

discovered that the company responsible for test scoring had miskeyed some of the

items. The psychologist contacted the company and requested that it (a) immediately

correct the error for future use, (b) rescore tests that had been subject to the miskeying,

and (c) send practitioners who had used the scoring service the rescored test

results with a letter of explanation.

Need to Know: Reasonable

Expectations for Awareness of Misuse

Frequently, psychologists will not be aware that their work has been misrepresented, and

in such cases inaction on their part would not be an ethical violation. However, when it is

reasonable to expect that psychologists would be aware of misuse or misrepresentation

of their work, a claim of ignorance would not be an acceptable defense against a charge

of violation of this standard (Canter et al., 1994; Standard 3.04, Avoiding Harm). The following

case (although involving a psychiatrist) illustrates a situation in which it would be

reasonable to expect awareness of the misuse of one’s work. In 2001 Dr. Robert Spitzer

presented a paper at a psychiatry meeting describing a telephone survey of gay and

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50——PART II ENFORCEABLE STANDARDS

1.02 Conflicts Between Ethics and Law,

Regulations, or Other Governing Legal Authority

If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal

authority, psychologists clarify the nature of the conflict, make known their commitment to the

Ethics Code and take reasonable steps to resolve the conflict consistent with the General

Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be

used to justify or defend violating human rights.

This standard, amended in 2010 (APA, 2010a), addresses instances in which the

requirements of the Ethics Code may conflict with judicial authority, with state or

federal laws, or with regulations governing the activities of psychologists working

in the military, correctional facilities, or other areas of public service. Standard 1.02

requires that psychologists take action when conflicts between the Ethics Code and

laws, regulations, or governing legal authority arise. As highlighted in Chapter 3,

psychologists must have sufficient understanding of the Ethics Code standards to

identify such conflicts. Specific steps that may be taken include informing appropriate

authorities of the conflict and explaining the rationale for the Ethics Code

standard.

lesbian patients who reported that participation in “reparative therapy” had successfully

reoriented them to heterosexuality. The paper was immediately seized on as supporting

evidence by groups who believed sexual orientation was a choice and by politicians to

argue against civil unions. Dr. Spitzer was aware of these responses to his paper, as well

as serious methodological flaws in his research, but he convinced a colleague who was a

journal editor to publish the article without undergoing the traditional peer review. It was

not until 2012 that Dr. Spitzer wrote the gay community an apology for the harm that

resulted from misinterpretation of his work (Carey, 2012).

􀀵 A psychologist who had received a court order for confidential information sent a

letter to the judge explaining the relevant confidentiality standards in the Ethics

Code and requesting judicial review to determine whether a limited release of

information would meet legal requirements (Standard 4.01, Maintaining

Confidentiality).

􀀵 A correctional psychologist refused a request from the prison warden to draw upon

his therapy sessions with a prisoner to help the warden recommend punishment for

the prisoner after he had gotten into a fight with a fellow inmate. The psychologist

explained to the warden that to do so could violate several ethical standards, including

1.01, Misuse of Psychologists’ Work; 3.05, Multiple Relationships; and 4.01,

Maintaining Confidentiality.

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Chapter 4 Standards for Resolving Ethical Issues——51

When a Conflict Cannot Be Resolved

Standard 1.02 also recognizes that legal and regulatory authorities may not

always respond to specific steps taken by psychologists to resolve conflicts between

ethics and law. When reasonable actions taken by psychologists do not resolve the

conflict, they are permitted to make a conscientious decision regarding whether to

adhere to the Ethics Code or the legal or regulatory authority, except under circumstances

that result in a violation of human rights.

This permissive aspect of the standard recognizes that in some contexts, when

legal ethics and professional ethics conflict, each may be equally defensible in terms

of moral principles. For example, in some instances, a judicial review requested by

a psychologist in response to a court order may determine that full release of confidential

therapy notes is required to protect the legal rights of a defendant or

plaintiff to a fair trial. In such situations, Principle D: Justice is in conflict with

Principle E: Respect for People’s Rights and Dignity, and Standard 1.02 permits

psychologists to draw upon ethical decision-making strategies, as described in

Chapter 3, to decide whether to obey or disobey the court order.

In other instances, abiding by the law helps maintain the presence of psychologists

in settings in which they can work to encourage and assist legal authorities

develop alternative rules and procedures that will enable psychologists to fulfill

their professional obligations as well as their obligations under the law. Such decisions

comply with this standard as long as continuing their work does not contribute

to or justify violations of human rights.

􀀵 A psychologist sought to study PTSD among Somali refugees. In some of the tribal

communities in which these individuals had lived, it was customary for male relatives

to provide permission for women’s participation in any medical or other types of

research. Based on current federal regulations and National Bioethics Advisory

Committee recommendations ([NBAC], 2001), the IRB approved initial male permission

followed by each female participant’s independent informed consent. However,

the investigator quickly realized that women whose male relatives had approved the

study were too frightened to refuse participation. The psychologist decided that the

IRB-approved consent procedures would unintentionally contribute to the violation of

these women’s human rights to voluntarily participate and did not conduct the study.

See also Standard 8.02, Informed Consent to Research.

Need to Know:

When Laws Are Unjust

It is important to note that Standard 1.02 does not require compliance with law. The

intentional absence of such a requirement reflects the APA’s longtime commitment to the

value of civil disobedience in response to unjust laws. Relatedly, psychologists should not

assume that Standard 1.02 waives their obligation to adhere to other standards of

the Ethics Code when laws are unjust. To the contrary, the 2010 amended language to

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52——PART II ENFORCEABLE STANDARDS

Mixed-Agency Conflicts in the Military

U.S. Department of Defense (DoD) regulations routinely require military psychologists

to perform activities that place service to the military mission above

the best interests of the individual client/patient, resulting in conflicts between

DoD requirements and Ethical Standards involving confidentiality, maintenance

of records, competence, and multiple relationships (W. B. Johnson, 1995). Efforts

by military psychologists to bridge the gap between APA Ethical Standards and

DoD regulations regarding confidentiality resulted in implementation of DoD

Directive 6490.1 (U.S. DoD, 1997a) and DoD Instruction 6490.4 (U.S. DoD,

1997b), which protect the rights of active duty service members sent for commander-

directed mental health evaluations (CDMHEs) to know why they were

referred for evaluation and who will be conducting the evaluation, their right to

obtain an evaluation summary and second opinion, and their right to speak with

legal counsel, a chaplain, and a member of Congress regarding their situation

(Orme & Doerman, 2001).

Kennedy and Johnson (2009) describe three primary strategies used by military

psychologists to resolve mixed-agency conflicts: The military manual approach, the

stealth approach, and the best interest approach. They recommend the latter in its

goal of simultaneously promoting the best interests of the service member, DoD,

and society. Given the many challenges that will arise, they also recommend that

military psychologists prepare for problems in advance and establish a collaborative

relationship with a local military lawyer and an experienced military psychologist

with established ethics expertise.

1.03 Conflicts Between Ethics and

Organizational Demands

If the demands of an organization with which psychologists are affiliated or for whom they

are working conflict with this Ethics Code, psychologists clarify the nature of the conflict,

make known their commitment to the Ethics Code, and take reasonable steps to resolve

the conflict consistent with the General Principles and Ethical Standards of the Ethics

Code. Under no circumstances may this standard be used to justify or defend violating

human rights.

Standard 1.02 following intense controversy over psychologists’ involvement in harsh

military interrogations related to national security makes clear that the participation of

psychologists in an activity that can be used by others to justify or defend violations of

human rights, even when lawful, is a violation of the APA Ethics Code. See Chapter 1 for

additional information on the APA’s position on involvement of psychologists in inhumane

military interrogations. Readers may also wish to refer to the Hot Topic at the end of this

chapter on the application of Standard 1.02 to involvement of psychologists in death

penalty cases.

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Chapter 4 Standards for Resolving Ethical Issues——53

The phrase “to the extent feasible” recognizes that despite reasonable efforts by psychologists,

an organization may refuse to change a policy that is inconsistent with the

Ethics Code. This standard does not require psychologists to resign when their attempts

at a resolution are unsuccessful as long as their work does not justify or defend violating

human rights (APA, 2010c; see Acuff et al., 1999, for excellent case examples).

Psychologists working with organizations may encounter company policies,

plans, or procedures that conflict with the Ethics Code. Standard 1.03 requires that

psychologists inform the organization about the nature of the conflict and the ways

in which policies or activities violate the Ethics Code and take actions to resolve the

conflict in a manner consistent with Ethics Code standards. The standard specifically

requires psychologists to make known their commitment to the Ethics Code

in communications with the organization.

􀀵 An industrial–organizational psychologist recently employed by an organization to

handle employment testing discovered that the organization used a test for preemployment

screening for which there was no documented evidence that test scores

could be validly applied to the competencies required for the job (Standard 9.02b, Use

of Assessments). The psychologist notified the employer of the problem and recommended

that use of the test be suspended until a more suitable pre-employment

screening process could be identified and validated. The psychologist provided a

specific, realistic plan for helping the employer move toward an ethical and legally

defensible applicant screening process.

􀀵 A superintendent of schools asked a counseling psychologist whose job it was to

provide career and academic counseling to high school students in the school district

to take on an added role as the Title IX officer designated to evaluate and enforce

school rules regarding student–student and faculty–student sexual harassment. The

psychologist explained that the dual assignment could compromise her ability to

effectively conduct either role because it was likely that some students who came to

the psychologist for counseling about sexual harassment would need to appear before

the psychologist in her Title IX role to press or defend against sexual harassment

charges (Standard 3.05, Multiple Relationships).

􀀵 A psychologist was hired by an HMO to implement preexisting company criteria for

mental health services claims. During a utilization review, she noticed that company

policy on the use of psychopharmacological medications in the absence of conjoint

psychotherapy was counter to professional and scientific knowledge of the discipline

for the particular disorder under review and believed that the policy was potentially

harmful to patients (Standards 2.04, Bases for Scientific and Professional Judgments,

and 3.04, Avoiding Harm). The psychologist drew the company’s attention to the

problem and the relevant APA Ethical Standards, but the HMO management refused

to change the policy without a full review of alternative policies. The psychologist

HMO

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54——PART II ENFORCEABLE STANDARDS

Psychologists should not assume that Standard 1.03 waives their obligation to

adhere to other standards in this Ethics Code. For example, a psychologist who

implemented a health care organization’s policy to increase revenue by providing

unwarranted treatment to Medicaid patients could be charged with Medicaid

fraud and a violation of Standards 6.04b, Fees and Financial Arrangements, and

9.01a, Bases for Assessments, even if the psychologist brought the unethical

nature of the policy to the organization’s attention (see Acuff et al., 1999).

agreed to use the preexisting criteria on the condition that the company immediately

initiate a full review upon which to update the utilization criteria.

􀀴 A psychologist working for an HMO was asked to develop evidence-based utilization

standards for a specific class of mental health disorders. On the basis of current

research, he recommended that individuals diagnosed to have this class of disorders

receive psychopharmacological medications and conjoint psychotherapy. During a

review of the first draft of the psychologist’s recommendations, his employer told him

that conjoint psychotherapy would significantly diminish the profitability of plans

covering the disorder and asked the psychologist to remove the recommendation from

the final draft of the report. The psychologist did not attempt to discuss with his

employer the ethical issues associated with approving for reimbursement what was

known to be inadequate treatment (Standards 2.04, Bases for Scientific and

Professional Judgments, and 3.04, Avoiding Harm) and simply agreed to change his

recommendation in the final report.

􀀴 A recently hired school psychologist discovered that district-mandated test batteries

for suspected learning disabilities were outdated, were inconsistent with current

professional standards, and violated the intent of special education laws that require

that tests be selected in light of the unique characteristics of the individual child. She

reasoned that as a new hire, it would be professionally risky to raise this issue with

the district school psychology supervisor and decided to do her best for the children

using the district’s test battery (see Standard 9.02a, Use of Assessments, and Jacob &

Hartshorne, 2007).

􀀵 A prescribing psychologist was employed by a nursing home to assess the psychological

status and psychopharmacology needs of residents. She noticed that the excessive

job demands placed on nurses’ aides at the institution were resulting in limited

and restrictive patient care, as well as an overuse of medications for patient sedation

that in turn was contributing to a loss of patient independent functioning and deterioration

of patient cognitive and other functional capacities. The psychologist recognized

that current financial difficulties at the nursing home precluded the hiring of

additional nurses’ aides. When she approached the institutional director with her

concerns about the overmedication, she offered to provide training sessions for the

nurses’ aides in behavioral techniques that would help reduce patient agitation and

encourage greater patient functional independence without adding to the aides’ work

responsibilities.

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Chapter 4 Standards for Resolving Ethical Issues——55

Commercially Funded Research

Advances in training programs in neuropsychology, psychopharmacology, and

pharmacotherapy have been accompanied by increased participation of psychologists

in research on psychoactive and central nervous system medications, drugs,

and chemicals. Growing involvement in the empirical assessment of psychotropic

medications is likely to be paralleled by increased funding for research psychologists

from pharmaceutical companies. Psychologists who are unfamiliar with private

industry sponsorship of research may be unprepared for the ethical challenges

that arise. While conflict-of-interest dilemmas have been spotlighted in the media

and scholarly journals (see Standard 3.06, Conflict of Interest), university-affiliated

research psychologists may find themselves in the type of conflict between ethics

Need to Know: Human Rights and

Organizational Consulting

Social inequalities embedded within organizations and social institutions are most often

the motor force behind human rights violations (Farmer, 2003). A commitment to human

rights within organizational settings places new ethical obligations on psychologists that

may require uncovering and recommending changes in entrenched institutional rights

violations of which organizational stakeholders may or may not be aware (Fisher, in press).

It calls upon psychologists working in or consulting to organizations to reevaluate how

their work may unintentionally condone organizational practices that justify violation of

human rights and are currently prohibited by APA Ethical Standards, including unfair discrimination

against complainants and respondents (Standard 1.08); unfair discrimination

based on age, gender, gender identity, race, ethnicity, and other group characteristics

(Standard 3.01); provision of psychological services delivered to or through organizations

(Standard 3.11); and use of assessment techniques whose validity and reliability have not

been established for members of the population tested (Standard 9.02b; APA, 2010c).

Psychologists working in and consulting to organizations must address the needs of

multiple stakeholders who differ in terms of power and privilege, for example, administrators,

employees, supervisors, and executives (D’Andrea & Daniels, 2010). To help organizations

develop fair and just procedures that address institutional bias and meet the needs of

all organizational members, psychologists should consider the following actions (see also

Fisher, in press):

Draw on multicultural knowledge and sensitivity and principles of fairness and

social justice to identify organizational policies that condone or justify human

rights violations (Romney, 2008; Whealin & Ruzek, 2008)

Avoid recommendations for organizational change that are grounded solely in the

needs and worldview of executives (Romney, 2008)

Assist organizations in recognizing that to overcome embedded biases requires intervention

at the individual (e.g., staff), the organizational (e.g., executive, board level),

and the larger community level (e.g., policy makers, stockholders; Griffith et al., 2007)

Help organizations adapt to and use diversity to maintain or improve effectiveness

by providing equal access and opportunity (D. W. Sue, 2008)

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56——PART II ENFORCEABLE STANDARDS

and organizational demands described in Standard 1.03 when the research sponsor

attempts to control the dissemination of research findings.

It should not be surprising that conflicts between ethics and organizations may

arise when psychologists’ research results are inconsistent with the commercial

interests of the company funding their study. When unanticipated risks to participants

emerge during a clinical trial, psychologists are obligated to take appropriate

steps to minimize such risks (Standard 3.04, Avoiding Harm). Such steps may

involve actions the sponsor company objects to, including informing their IRB

(Standard 8.01, Institutional Approval), terminating or modifying the study, or

informing participants about new adverse events that may influence their willingness

to continue in the research (see Standards 3.04, Avoiding Harm, and 8.02,

Informed Consent to Research). Sponsors may also attempt to prevent publication

of data that jeopardize the marketability of their product or exert pressure on psychologists

to falsify results (Standard 8.10, Reporting Research Results).

When faced with conflicts between ethics and organizational demands,

Standard 1.03 requires that psychologists explain to the sponsor their ethical obligations

under the Ethics Code, including their commitment to participant protection

and the responsible conduct of research. In so doing, they must develop a plan

and take actions to resolve the conflict in a manner that permits adherence to the

code. Psychologists and their universities should also be alert to research contracts

that include nondisclosure or confidentiality agreements that create additional

barriers to resolution of such conflicts.

The highly publicized dispute between university medical school researcher

Nancy Olivieri and the commercial sponsor of her research illustrates the type of

conflict between ethics and organizations that research psychologists may increasingly

face and the ethical problems that can emerge when researchers and their

universities fail to ensure that grants from private companies do not carry stipulations

that could lead to Ethics Code violations.

Dr. Olivieri received a grant from a private drug manufacturer to begin short-term clinical

trials of deferiprone, a drug thought to reduce iron overload in patients with thalassemia.

To obtain the grant, she signed a confidentiality agreement that she would not publish the

findings of the trials without prior approval of the company. Following success of the shortterm

trial, she received a second grant from the manufacturer for a larger-scale study (for

which she did not sign a confidentiality agreement). As the research progressed, the data

suggested that deferiprone either failed to reduce iron levels or increased them. Against the

wishes of the sponsor, she notified the University Research Ethics Board of the findings, and

the patients were given revised consent forms telling them of the newly suspected risks.

Within 72 hours, the sponsor terminated the trials and warned that the company would use

legal remedies if Olivieri told patients, regulatory agencies, or the scientific community

about her concerns. Expressing her ethical obligation to her research participants and to the

medical science community, Olivieri discussed the risks with each participant and published

the results. Although lauded for her actions by the science community, she spent years in

litigation with the company and her university. For additional information on this case, readers

should refer to Olivieri (2003) and Thompson, Baird, and Downie (2001).

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Chapter 4 Standards for Resolving Ethical Issues——57

1.04 Informal Resolution of Ethical Violations

When psychologists believe that there may have been an ethical violation by another psychologist,

they attempt to resolve the issue by bringing it to the attention of that individual, if an informal

resolution appears appropriate and the intervention does not violate any confidentiality rights

that may be involved. (See also Standard 1.02, Conflicts Between Ethics and Law, Regulations, or

Other Governing Legal Authority, and Standard 1.03, Conflicts Between Ethics and Organizational

Demands.)

Professional and scientific misconduct by psychologists can harm coworkers,

distort the public’s ability to make decisions informed by knowledge generated by

members of the profession, and harm the profession itself by instilling public distrust.

When an ethical violation by another psychologist occurs, members of the

profession are in the best position to recognize the violation and select a course of

action that could ameliorate harm or prevent further violations. Standards 1.04 and

1.05 underscore the responsibility of psychologists to be concerned about and,

when appropriate, address the scientific or professional misconduct of their colleagues

(Principle B: Fidelity and Responsibility).

Standard 1.04 requires psychologists to attempt an informal resolution when

they suspect an ethical violation has occurred that could be adequately addressed

through discussion with and subsequent remedial actions by the violating psychologist.

In such instances, psychologists should discuss the violation with the

offending psychologist to confirm whether misconduct has actually occurred and,

if appropriate, recommend corrective steps and ways to prevent future ethical violations.

Examples of misconduct psychologists might encounter, in which an informal

resolution is appropriate, include the following:

􀀵 A psychologist with no prior education, training, or supervised experience in neuropsychological

assessment began to incorporate a number of such instruments into a

battery of tests for elderly clients (Standard 2.01a, Boundaries of Competence). After

a colleague brought her lack of training to her attention, an informal resolution was

achieved when the psychologist agreed to obtain appropriate training in neuropsychological

assessment before continuing to use such techniques.

􀀵 A psychologist working with a non-English-speaking psychotherapy client asked the

client’s son to serve as an interpreter during sessions. He agreed to use an independent

translator after being approached by a colleague who explained that he was

jeopardizing the value of the treatment by using an untrained interpreter and potentially

jeopardizing the mother–son relationship (Standard 2.05, Delegation of Work to

Others).

􀀵 A consulting psychologist hired to help management plan for a shift in organizational

structure planned to take stock options in partial payment for the work. When a

colleague pointed out that this might impair her objectivity and expose the company

to harm (Standard 3.06, Conflict of Interest), the psychologist agreed to discuss alternative

compensation with the organization.

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58——PART II ENFORCEABLE STANDARDS

Implications of HIPAA

Psychologists should be aware that the Health Insurance Portability and

Accountability Act of 1996 (HIPAA) also requires that health care professionals take

reasonable steps to mitigate any harmful effects of unlawful disclosure of protected

health information (PHI) by an employee or business associate of which they are

aware (see “A Word About HIPAA” in the Preface to this book).

When an Informal Resolution Is Not Feasible

Standard 1.04 recognizes that in some instances, an informal resolution may

not be feasible. For example, previous attempts to discuss ethical problems with

the offending psychologist may have been ineffective or the offending psychologist

may have left the position in which he or she had committed the violation or is

otherwise inaccessible. In addition, psychologists should not attempt an informal

resolution if to do so would violate an individual’s confidentiality rights.

􀀵 In a job application, a psychologist claimed as a credential for health service delivery

a degree earned from an educational institution that was neither regionally accredited

nor a basis for state licensure. When the unethical nature of this behavior was pointed

out (Standard 5.01c, Avoidance of False or Deceptive Statements), the psychologist

agreed to send a letter to the potential employer clarifying the nature of the degree.

􀀵 A professor of psychology had not established a timely or specific process for providing

feedback to and evaluating student performance (Standard 7.06, Assessing

Student and Supervisee Performance). After discussions with the department chair, the

professor agreed to develop such a system.

􀀵 An assistant professor of psychology began data collection without submitting a research

proposal to the university’s IRB (Standard 8.01, Institutional Approval). After a senior

faculty member brought this to the psychologist’s attention, the researcher agreed to

submit an IRB application and to cease data collection contingent on IRB approval.

􀀵 A psychologist working in a hospital had entered identifiable confidential information

into a database available to other staff members (Standard 6.02b, Maintenance,

Dissemination, and Disposal of Confidential Records of Professional and Scientific Work).

When another psychologist working at the hospital pointed out the problem, the psychologist

agreed to use a password and other procedures for protecting the information.

􀀵 During a session at the university counseling center, a graduate student complained

that her psychology professor required students to discuss their sexual history in a

required experiential group (Standard 7.04, Student Disclosure of Personal

Information). The student did not want anyone in the program to know she was

receiving counseling. Although the counseling psychologist knew that the professor

might be violating Standard 7.04, the psychologist did not attempt to resolve the issue

because to do so would have placed the confidentiality of the counseling relationship

at risk (Standard 4.01, Maintaining Confidentiality).

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Chapter 4 Standards for Resolving Ethical Issues——59

Peer Review

Journal editors or psychologists reviewing manuscripts or grant proposals may come

across information in the submitted materials that suggests a potential ethical violation.

For example, an initial reading of the manuscript might lead a reviewer to suspect that

the data, presented as original in the manuscript, had been previously published in

another journal (a violation of Standard 8.13, Duplicate Publication of Data). In such

cases, the reviewer should alert the editor, who in turn can request from the author written

clarification of the source and originality of the data and copies of previous publications

if appropriate. Suspected plagiarism or data fabrication in a submitted manuscript

or grant proposal may be similarly handled through a journal editor or grant program

officer in situations in which there is sufficient uncertainty about whether a violation has

occurred (Standards 8.10, Reporting Research Results, and 8.11, Plagiarism).

If the violation is not resolved through or appropriate for informal resolution, a

formal complaint may be made; however, psychologists need to investigate the confidentiality

and proprietary rights of the submitted materials within the context of the

specific review process. For example, editors of APA journals who have good cause to

believe that an ethical violation has occurred are required to report the matter to the

Chief Editorial Advisor and the APA Journal’s Senior Director, even if the manuscript

has been rejected (APA, 2006, Policy 1.05). By contrast, some publishing companies,

especially those that publish journals from multiple disciplines, may not have formal

policies in place for reporting suspected ethical violations for submitted manuscripts.

In such cases, editors and reviewers should consult with the publisher’s legal office to

clarify reporting responsibilities and limitations. In most instances, whether or not

confidentiality rights prohibit making a formal complaint to the APA or other ethics

committees, reviewers may be asked to document for a journal or grant committee

the factual basis of their concerns (see also Standard 1.07, Improper Complaints).

1.05 Reporting Ethical Violations

If an apparent ethical violation has substantially harmed or is likely to substantially harm a person

or organization and is not appropriate for informal resolution under Standard 1.04, Informal

Resolution of Ethical Violations, or is not resolved properly in that fashion, psychologists take

further action appropriate to the situation. Such action might include referral to state or national

committees on professional ethics, to state licensing boards, or to the appropriate institutional

authorities. This standard does not apply when an intervention would violate confidentiality rights

or when psychologists have been retained to review the work of another psychologist whose

professional conduct is in question. (See also Standard 1.02, Conflicts Between Ethics and Law,

Regulations, or Other Governing Legal Authority.)

Standard 1.05 requires psychologists to report ethical violations committed by

another psychologist only if the violation has led to or has the potential to lead to

substantial harm and informal resolution is unsuccessful or inappropriate. The

extent to which most ethical violations have or are likely to cause substantial harm

will depend on the professional or scientific context and the individuals involved.

As a rule of thumb, behaviors likely to cause substantial harm are of a kind similar

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60——PART II ENFORCEABLE STANDARDS

to sexual misconduct, insurance fraud, plagiarism, and blatant intentional misrepresentation

(APA, 2010c, Section 5.3.5.1.1).

Standard 1.05 also offers nonbinding examples of available reporting options,

including filing a complaint with the APA or one of its state affiliates if the offending

psychologist is a member of that organization, referring the case to a state

licensing board if the ethical violation also violates state law, or filing a complaint

with the appropriate committee in the institution or organization at which the

offending psychologist works. As in Standard 1.04, Standard 1.05 prioritizes the

protection of confidentiality over the duty to report an ethical violation.

􀀵 A psychology professor reviewing an assistant professor’s promotion application materials

discovered that the faculty member had several publications that plagiarized articles

written by a senior colleague (8.11, Plagiarism). The psychologist presented the evidence

to the chair of the department. The chair and the professor informed the faculty member

that they had discovered the plagiarism and would be forwarding the information to the

university committee on ethical conduct and, if the committee found that plagiarism had

occurred, would inform the journal in which the articles were published.

􀀵 A client told a psychologist about the sexual misconduct of another psychologist with

whom the client had previously been in psychotherapy (Standard 10.05, Sexual

Intimacies With Current Therapy Clients/Patients). Judging that it was clinically appropriate,

the psychologist discussed with the client the unethical nature of the previous

therapist’s behavior and the available reporting options. The psychologist, respecting

the client’s request to keep the sexual relationship confidential, did not pursue reporting

the violation (Standard 4.01, Maintaining Confidentiality).

Need to Know: Consultation on Misconduct

Psychologists may be retained to help an organization, the courts, or an individual evaluate

whether the actions of a psychologist have violated the Ethics Code. Standard 1.05

preserves the ability of members of the discipline to provide expert opinion on the ethical

conduct of their peers by exempting from the reporting requirement psychologists hired to

review the ethical activities of another psychologist.

1.06 Cooperating With Ethics Committees

Psychologists cooperate in ethics investigations, proceedings, and resulting requirements of the

APA or any affiliated state psychological association to which they belong. In doing so, they

address any confidentiality issues. Failure to cooperate is itself an ethics violation. However,

making a request for deferment of adjudication of an ethics complaint pending the outcome of

litigation does not alone constitute noncooperation.

A profession that demonstrates that it can monitor itself promotes public confidence

in the services of its members. Thus, an ethics code must enable professional

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Chapter 4 Standards for Resolving Ethical Issues——61

Standard 1.06 permits psychologists to request that an APA or affiliated state

psychological association ethics committee delay adjudication of a complaint

pending the outcome of litigation related to the complaint. If, however, the ethics

committee declines such a request, failure to cooperate will be considered a violation

of Standard 1.06. Readers may also wish to refer to the section on APA Ethics

Enforcement in Chapter 2.

1.07 Improper Complaints

Psychologists do not file or encourage the filing of ethics complaints that are made with reckless

disregard for or willful ignorance of facts that would disprove the allegation.

The filing of frivolous complaints intended solely to harm the respondent

undermines the educative, adjudicative, and public protection purposes of the

Ethics Code. Unfounded and revengeful complaints can taint a scientific or professional

career, lead to unfair denial of professional liability insurance or hospital

organizations to effectively adjudicate ethics complaints. Membership in the APA

and its affiliated state psychological associations brings with it a commitment to

adhere to the Ethical Standards of the profession. To ensure the validity and viability

of APA ethics adjudication, Standard 1.06 requires that when called on to do

so, psychologists cooperate with APA and state-affiliated ethics investigations,

proceedings, and resulting requirements. During the comment phase of the Ethics

Code revision, some members asked whether requiring cooperation with an ethics

committee when a complaint has been brought against a psychologist raised Fifth

Amendment issues regarding the right against self-incrimination. The answer to

this question is no. Unlike state licensing boards and other government and judicial

agencies, professional organizations are not bound by the Fifth Amendment.

Standard 1.06 recognizes that when a complaint is brought against a psychologist,

the ability to respond in full to an ethics committee request for information

may be limited by confidentiality responsibilities detailed in Chapter 7.

􀀵 A patient submitted a complaint to the APA charging a neuropsychologist with

misinterpreting the results of an assessment battery, leading to inaccurate diagnosis

and denial of disability (Standards 3.04, Avoiding Harm, and 9.06, Interpreting

Assessment Results). To fully respond to the complaint, the psychologist needed to

obtain the patient’s written release so that the psychologist could submit to the

ethics committee the test report and other information about the patient relevant

to the complaint. Despite reasonable efforts, the patient refused to sign the

release. The psychologist provided the APA Ethics Committee documentation of his

requests to the client and her written refusal as well as a statement indicating how

the clients’ refusal placed confidentiality limitations on his ability to fully respond

to the committee’s request.

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62——PART II ENFORCEABLE STANDARDS

privileges (because some insurers ask if a complaint has been made), incur costly

legal fees for a respondent, and dilute public trust in the profession. Feelings of

hostility and intent to do harm may accompany a valid complaint against psychologists

who have acted unethically. However, the language of this standard was

crafted to focus on the complaining psychologist’s disregard for available information

that would disprove the allegation rather than on the personal motives underlying

the complaint.

Examples of improper complaints to the APA Ethics Committee often involve academic

colleagues, business rivals, or psychologists with opposing forensic roles who

attempt to misuse the ethics adjudication process as a means of defeating a competitor

rather than addressing wrongful behavior or who attempt to dilute a complaint against

them through a counter-complaint. Standard 1.07 is violated if psychologists making

a complaint had access to information refuting the accusation—whether or not they

availed themselves of such information.

􀀴 Two academic psychologists, well-known for conducting methodologically rigorous

research on the validity of children’s eyewitness testimony, were often asked to serve

as forensic experts on opposing sides in criminal cases. The defense attorney who

had retained one of the psychologists for a highly publicized child abuse case was

concerned that a recent article published by the opposing psychologist would be

potentially damaging to the defendant’s case. At the attorney’s urging, the psychologist

submitted a complaint to the APA Ethics Committee claiming that the opposing

psychologist had fabricated the data. The psychologist based her complaint only on

the fact that the data seemed “too good to be true” (see also Standard 3.06,

Conflict of Interest).

Member groups of psychologists involved in adversarial proceedings are increasingly

recognizing the need to address improper complaints. For example, the

American Academy of Clinical Neuropsychology (2003) has made the following

recommendations for ethical and professional bodies considering ethical complaints

made against neuropsychologists involved in adversarial proceedings: (a) Ethical

complaints should be examined after the resolution of related adversarial proceedings,

(b) investigators should consider the motivation of those making the

complaints, (c) investigative board members should be from different geographical

regions and should have no prior relationships with those involved in the complaints

and have expertise in clinical neuropsychology, and (d) multiple unfounded

complaints against the same psychologists should not be used to substantiate

unethical practices where none exist.

The discipline of psychology and the public benefit from psychologists monitoring

the ethical activities of other psychologists, but both are damaged when the

Ethics Code is misused as a weapon to harass or otherwise harm members of the

profession.

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Chapter 4 Standards for Resolving Ethical Issues——63

Standard 1.08 also recognizes that not all complaints have a basis in fact or rise

to the threshold of an ethics violation. Therefore, the standard prohibits psychologists

from unfair discrimination of individuals who have been accused of, but not

found to have committed, an ethical violation.

1.08 Unfair Discrimination Against

Complainants and Respondents

Psychologists do not deny persons employment, advancement, admissions to academic or other

programs, tenure, or promotion, based solely upon their having made or their being the subject

of an ethics complaint. This does not preclude taking action based upon the outcome of such

proceedings or considering other appropriate information.

Situations arise in which employees, colleagues, students, or student applicants

accuse others or are accused of sexual harassment or other forms of professional

or scientific misconduct. Standard 1.08 protects the rights of individuals to make

ethical complaints without suffering unfair punitive actions from psychologists

responsible for their employment, academic admission, or training. The standard

also protects the rights of those accused of unethical behaviors to pursue their

career paths pending resolution of a complaint. Some highly publicized cases of

whistle-blowing have illustrated how premature punitive actions against those

who make complaints or those who are the subjects of complaints can hamper the

ability of a profession or an organization to monitor itself and can violate the

rights of those accused to have a fair hearing (Lang, 1993; Needleman, 1993;

Sprague, 1993). The Ethics Code makes clear that psychologists have a responsibility

to be concerned about the ethical compliance of their colleagues’ scientific and

professional conduct (Principle B: Fidelity and Responsibility and Standards 1.04,

Informal Resolution of Ethical Violations, and 1.05, Reporting Ethical Violations).

Standard 1.08 supports the implementation of this obligation by prohibiting

unfair discrimination against those who make ethics complaints.

􀀴 A psychology department voted to deny doctoral candidacy to a student in the department’s

master’s program solely because she had filed a still pending sexual harassment

complaint against a member of the faculty.

􀀴 A client accused a member of a group practice of misrepresenting the fee for psychotherapy.

Fearful of additional litigation, regardless of whether the psychologist was

ultimately found innocent or guilty, the other group members asked the psychologist

to leave the practice.

HMO

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64——PART II ENFORCEABLE STANDARDS

HOT TOPIC

Human Rights and Psychologists’

Involvement in Assessments Related to

Death Penalty Cases

In 2010, following intense controversy over the involvement of psychologists in military interrogations at U.S.

detention centers such as Guantanamo Bay and Abu Ghraib, the APA amended its Ethics Code Standard 1.02,

Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority. The amended language

made clear that psychologists were prohibited from engaging in activities, however lawful, that would “justify

or defend violating human rights.” The broad language of this modified standard raises new questions for ethical

analysis of psychologists’ participation in another kind of controversial legal proceeding: death penalty cases.

Court Rulings

Forensic psychologists—those with specialty training in psychological evaluation, treatment, or consultation

relevant to legal proceedings—have been increasingly involved in death penalty cases since the Supreme

Court in Gregg v. Georgia (1976) ruled that capital sentencing must be tailored to the individual offense and

the person who committed it. In practice, this has meant that during the sentencing phase of a capital case,

courts must consider psychological factors that might influence a jury’s recommendation for execution or life

imprisonment such as whether the defendant is capable of understanding the State’s reason for execution or

is likely to engage in future violent behavior (DeMatteo, Murrie, Anumba, & Kessler, 2011).

The need for psychological assessment in capital cases intensified in 2002 when the Supreme Court decided

that use of the death penalty for defendants with mental retardation is unconstitutional (Atkins v. Virginia,

2002). Consequently, prosecutors cannot bring a capital case against a defendant accused of murder if a

forensic psychologist or other mental health expert gives the defendant a diagnosis of mental retardation.

Similarly, the more recent Panetti v. Quarterman (2007) decision prohibits execution of criminal defendants

sentenced to death if assessments indicate they do not understand the reason for their imminent execution.

􀀵 An assistant professor accused of student sexual harassment had a documented

history of poor student teaching evaluations, which, independent of the sexual

harassment accusation, was sufficient to support a denial of promotion to associate

professor.

􀀵 A psychologist who accused a colleague of insurance fraud was found to have fabricated

the evidence used against the colleague. The psychologist was fired from the

group practice (Standard 1.07, Improper Complaints).

The use of the term solely in the first sentence of Standard 1.08 permits complainants

or respondents to be denied employment, professional or academic

advancement, or program admission for reasons unrelated to the complaint or for

reasons based on the outcome of the complaint.

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Chapter 4 Standards for Resolving Ethical Issues——65

As a result of these decisions, in capital cases, psychologists’ expertise plays an essential role in determining the

legal grounding on which a defendant may be tried for a capital offense and sentenced to death.

Legal Flaws in Death Penalty Cases

Within the profession, psychologists’ involvement in capital cases has drawn ethical debate as new evidence of

the flaws in the death penalty process has come to light (Birgden & Perlin, 2009). At least 102 innocent people

in the United States have been released from death row since 1973. Moreover, still unknown is the number of

innocent persons who have been on death row for years or executed. Consistent findings that racial minorities

and defendants from lower socioeconomic levels are more likely to receive a death sentence than white and

middle-class defendants further underscore the inequities and unfairness of capital punishment procedures

(Jacobs, Qian, Carmichael, & Kent, 2007). Additionally, the fallibility of eyewitness testimony, long documented

by research psychologists, is increasingly recognized by law-enforcement agencies and the courts as a serious

threat to fair conviction procedures (Liptak, 2011). That innocent people in the United States are being put to

death or waiting on death row is indisputable.

Responding to these inequities, in 2001, the APA issued a statement calling upon U.S. jurisdictions not to

carry out the death penalty until localities develop policies and procedures that can be shown through psychological

and other social science research to ameliorate capital case procedural flaws associated with incompetent

counsel, inadequate investigative services, police and prosecutors withholding exculpatory evidence, and

selection of conviction-prone jurors (APA, 2001). Only a few states thus far have instituted such a moratorium.

Fallibility of Psychological Tests in Capital Cases

The inherent fallibility of psychological tests may also contribute to arbitrariness and inequities in death penalty

proceedings. Most test scores indicating cognitive disability and other psychological disorders are based on

probabilities—the likelihood someone has a mental disorder is determined by the degree to which his or her

score is similar to the scores of others diagnosed with the disorder.

In Atkins, the Supreme Court did not define mental retardation, charging states to identify their own

definitions. This has created potential inequities in diagnosis. First, although there is general agreement that a

diagnosis of mental retardation requires that prior to age 18 an individual has demonstrated a combination of

below-average general intellectual ability and lack of adaptive skills necessary for independent daily living

(American Psychiatric Association, 2000), in law and forensic psychology there is variability across states on the

specific legal definition of mental retardation (see for an excellent review, DeMatteo et al., 2011). Second, mental

health practitioners disagree on whether an IQ (intelligence quotient) score of 70 should be an absolute cutoff

point for mental retardation, the relative weight that should be given to IQ scores versus adaptive functioning in

reaching a diagnosis, and the validity and reliability of IQ scores over time (Cunningham & Tassé, 2010; Everington &

Olley, 2008).

Socioeconomic and cultural inequities. Socioeconomic disadvantage constitutes a third factor contributing

to diagnostic fallibility; many defendants raised in economically and educationally disadvantaged neighborhoods

were never evaluated for mental retardation prior to age 18, and their childhood school and medical

records may be sparse. Lack of childhood psychological assessment can lead to the default position that these

defendants do not meet mental retardation criteria and can therefore be charged with a capital offense.

Fourth, cultural bias of psychological tests used in death penalty cases continues to be a source of concern

within the profession (Perlin & McClain, 2009). Many tests available to evaluate overall intelligence, adaptive

behavior, and psychological disorders related to aggression are based on test scores of white, Englishspeaking,

U.S. born, and middle-class populations. Accordingly, in capital cases, mental retardation and violence

risk may be systematically over- or under-diagnosed in poorly educated or language minority persons

lacking proficiency in English.

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66——PART II ENFORCEABLE STANDARDS

Predicting future acts of violence. Finally, during the death penalty sentencing, forensic psychologists are often

asked to provide expert testimony on whether the defendant is likely to engage in future violent acts.

Psychological tests for violence risk are also probabilistic, and research consistently shows that psychologists and

other forensic practitioners cannot predict future dangerousness with any certainty, particularly because contextappropriate

base-rate data are only beginning to be developed (Bersoff, DeMatteo, & Foster, 2012; DeMatteo et al.,

2011; Sorensen & Cunningham, 2010). Jury predictions are similarly unreliable. Juries are more likely to arrive at

a death sentence when defendants have a diagnosed mental illness based on the unfounded belief that individuals

with psychological disorders are inherently more prone to future violence (Cunningham & Reidy, 2002).

In summary, a diagnosis of mental retardation and predictions of future violence are probabilistic at best

and subject to test bias and state and practitioner idiosyncrasies at worst. By contrast, the ultimate decisions

before a court are absolute: A defendant has or does not have mental retardation, is or is not likely to be violent

in the future, is or is not guilty, and should or should not be sentenced to death.

Does Forensic Psychologists’ Involvement in Capital Cases

“Justify or Defend Violating Human Rights”?

Even as Americans continue to disagree on whether the death penalty in itself violates human rights, the unwarranted

and inequitable killing of innocent persons by their government is a flagrant violation of the basic rights

of individuals to life and liberty (Dieter, 2011).

As in the debate over psychologists’ involvement in military interrogations, some might argue that the psychological

assessment is neutral and does not determine whether a judge or jury will sentence a prisoner to death.

However, given the current documented flaws in death penalty procedures, psychologists’ contribution to legal

decisions concerning competency and predictions of future violence places the defendant at the mercy of an

imperfect and unjust system. Others might argue that despite the inexactitude of current diagnostic techniques,

participation of well-trained forensic psychologists enhances the accuracy of mental health–based legal decisions

and that to prohibit their services in capital proceedings will only lead to capricious and unprofessional assessments

conducted by those without appropriate training. To be sure, the probabilistic nature of forensic assessments

does not override their importance and usefulness to the courts. The U.S. legal system affords defendants and

prisoners basic protections that can rectify flawed evaluations or jury decisions, including the right to appeal, the

right to receive psychological treatment and ongoing psychological evaluations, and the possibility of entering new

evidence into consideration following conviction. However, in capital cases, the usual human rights protections for

continued evaluation and appeals can be cut short by death.

Moral questions about forensic psychologists’ participation in capital punishment cases bears striking similarity

to issues that drove the heated controversy over psychologists’ participation in harsh military interrogations.

The APA has taken a moral stance against psychologists’ participation in military activities that justify

human rights violations. It may be time to do the same for the death penalty, an inequitable legal process whose

inconsistencies lethally violate the human rights of defendants in capital cases.

Fisher, C. B. (in press). Human rights and psychologists’ involvement in assessments related to death penalty cases. Ethics

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