Keeping Ethics Alive and Well in an Agency
All aspects of professionals providing services for persons with disabilities have a profound ethical dimension. As considered elsewhere in this work, the ethical dimension is distinguished from other dimensions (for example, the legal and clinical dimensions) by the inherent moral demands to:
• promote human wellbeing and welfare;
• balance the needs and significant moral interests of different people; and
• make reliable judgments on what constitutes morally ‘right’ and ‘wrong’ conduct, and provide sound justifications for the decisions and actions taken on the basis of these judgments. Rehabilitation professionals can not escape these demands or the stringent responsibilities they impose. One reason for this is that no their decision or action (no matter how small or trivial) occurs in a moral vacuum, or is free of moral risk or consequence. To put this another way, even the most ‘ordinary’ actions of rehabilitation professionals can affect significantly the wellbeing, welfare and moral interests of others. Canadian Code of Ethics for Rehabilitation Professionals (2002) have made explicit that professionals have a stringent moral responsibility to promote and safeguard the wellbeing, welfare and moral interests of people needing and/or receiving care. These codes also variously recognize the responsibility of professionals to balance the needs and interests of people with disabilities equally in health care contexts. It has been a central aim of this text to assist rehabilitation professionals to achieve the above requirements. This work seeks to provide the ethical guidelines for staff providing a range of services for persons with disabilities, some of whom may have cognitive or learning difficulties. The work also addresses and discusses some of the ethical considerations which arose during the course of this research. Based on the approach to the ranking of values and duties, and based on the assessment of the strengths and limitations of the most prominent theories of normative ethics, we have formulated a set of guidelines to help professionals make decisions.
Rehabilitation professional practice is undertaken in a variety of settings. Any particular setting will be affected to some degree by factors which are not within a professional’s control or influence. These include resource constraints, institutional policies, management decisions, and the practice of other health care providers. Professionals also recognize the potential for conflict between one person’s needs and those of another, or of a group or community. Such factors may affect the degree to which professionals are able to fulfill their moral obligations and/ or the number and type of ethical dilemmas they may face.
The ethical guidelines contain broad value statements. Professionals may use these statements as a guide in reflecting on the degree to which their practice demonstrates the stated value. As a means of assisting in interpretation of the six expressed values, a number of explanatory statements are provided. These are not intended to cover all the aspects a professional should consider, but can be used as an aid in further exploration and consideration of ethical concerns in the practice. Though the ethical guidelines focus on the morals and ideals of the profession, the ethical guidelines also identify the minimum requirements for practice in the profession and focus on the clarification of professional misconduct and unprofessional conduct. These ethical guidelines provide a working framework for professional practice.
Value statement 1
Professionals possess good communication skills.
Effective communication supports patient autonomy by enhancing understanding and is essential for good medical practice. It is the basis of history taking, obtaining consent for examinations and procedures, and explaining diagnoses and treatment. Effective communicators are able to establish rapport, trust and confidence with patients more easily, thereby enhancing the flow of crucial information and increasing the likelihood that advice will be heeded while decreasing the likelihood of acrimony or legal action if adverse events occur. Good communication skills alone are not sufficient, however-they must be accompanied by clinical competence, compassion and ethical behavior. Good communication skills are also a necessary prerequisite if the professional is to demonstrate effective leadership of the ‘health care team’ (Breen 97).
The adequacy of the waiting area, the attitude of reception staff to the patient and the physical surroundings of the consulting room may adversely or favorably affect the subsequent communication between patient and professional. The need for obvious privacy is most important. Some professionals consider that a desk between patient and professional is a barrier to communication, but individual practitioners need to decide what is comfortable and appropriate for the nature of their practice. Some interruption to take essential telephone calls about clinical matters is unavoidable for most doctors, but every attempt should be made to minimize this; when calls are taken, an explanation should be made to the patient in front of you and care taken with the content of the telephone call.
Value statement 2
Professionals should appreciate the principles and laws related to the release of any personal information.
Medical records are a major repository of personal information. They include records held in private surgeries, in private and public hospitals, in medical clinics in industry, in community health centers, in a variety of State and Federal government departments. These records are generated in a vast variety of places and circumstances and increasing numbers are becoming computerized and centralized. Often the information is readily available at remote terminals. Shielding the medical records of sick patients in hospitals from all unauthorized eyes is virtually impossible. Invariably patient care involves a number of professionals and the handling and exchange of confidential information between them, nursing staff, technicians, dietitians, physiotherapists, social workers and others who need access to the information to provide appropriate care and treatment for the patient. Administrative staff, filing clerks and hospital porters are also in a position to read such records if they are so inclined. In teaching hospitals, students of various disciplines also have access to medical records. Most patients nowadays who are treated in hospitals realize that any information given to an attending doctor will probably be seen by other doctors and health professionals involved in their care and consent by patients for such access is usually implied. Thought, however, should be given as to the detail recorded and the security of the record when patients reveal particularly sensitive and confidential information to their doctors.
Value Statement 3
Professionals are obliged to maintain confidentiality with regard to disclosures made by clients including those made by children, subject to the law of the land.
There are some general exceptions to this rule, which mainly fall under the heading of child protection, for example where:
• a child or adolescent is threatening to kill or injure him/herself;
• an adult reveals that a child or adolescent entrusted to his/her care may be put at risk due to his/her conduct or negligence;
• there may be risks to third parties who are involved, e.g. threatened violence or sexual abuse;
• it is necessary to comply with legal requirements, such as when disclosure is requested in a court case.
There is therefore a continuum of confidentiality. As Swain (1996) argues, confidentiality is ultimately about trust, not secrecy (52). Dilemmas arise when one may wish to disclose information revealed in one context to other participants working with the client(s). In such circumstances, it is good practice to negotiate with the person who revealed the information as to whether the information can be disclosed to others. However, if the client declines the request for disclosure, that view must be respected and the confidentiality maintained.
Value statement 4
Professionals may be expected to act as advocates for persons with disabilities, since persons with disabilities may not always be able to articulate their concerns effectively.
The professional may have a role to play in representing the client’s perspective in terms of his/her dealings with other clients, stakeholders and other professionals involved with the case. This is vital in circumstances where there are conflicting rights. The paramount concern of the professional is for the welfare and well-being of the client.
Value statement 5
Professionals need to be mindful of any obstacles to understanding for clients and seek to maximize opportunities to develop autonomy and exercise choice.
Informed consent is particularly difficult in learning disabilities, especially if clients have had little previous opportunity to make choices or have their wishes taken into account (Fiddell 59). Clients have often had decisions about their lives made by others, with parental views and sensibilities being given primacy to the detriment of client autonomy. Additionally, capacity to understand complex concepts like consent might be diminished by learning disability itself, which may significantly impair cognitive processing and recall. Attention to and awareness of the danger of becoming too directive, not paying attention to issues of competence, power and control, is central to therapeutic work in disabilities. Complex dilemmas may arise which require consultation with supervisors, careful thought and reference to codes of ethics. Although many codes of practice would seem to give guidance for complex circumstances, they are not and cannot be prescriptive. Ethical dilemmas by their very nature suggest alternative courses of action, and the key ethical concepts such as beneficence and non-maleficence must be used as guiding principles. The Canadian Code of Ethics for Rehabilitation Professionals (2002) refers to the obligation of a professional to act in the best interest of a client when there is evidence of reduced capacity either because of immaturity, a lack of understanding, extreme distress or other significant restraint. The role of the clinical supervisor and line managers may be important here.
Value statement 6
All grievances and complaints, whoever invokes them, need to be able to be handled with clear and credible processes and procedures that address these issues of private or public concern.
A grievance procedure is generally the best method of dealing with a problem which arises within an institution. Grievances can normally be dealt with in-house, fairly speedily, and often a resolution can be reached. Grievances normally concern internal difficulties; trainee with trainer, trainee with supervisor, volunteer with agency or agency with volunteer. Should resolution not be possible then the matter might become a complaint; but it is important from a legal point of view that the proper channels have been exhausted before the aggrieved person moves on to using a complaints procedure.
There can be conflict between a practitioner’s role as a professional and as an employee, for instance in the health service, where resources are limited. Therefore it is particularly important for the practitioner who feels that he or she needs to whistle blow to be sure that they know what their boundaries and roles are before doing so. Whistle blowers are unusual in agencies, but in the future there may need to be more if high standards and ethical practice are to be maintained. It is essential to be seen by everyone, public and professionals alike, to be dealing with such matters in a positive and open way. This is a vital element in maintaining public confidence in the profession.
Value statement 7
Once a professional has responsibility for a patient a legal relationship comes into existence which obliges the professional to exercise a reasonable degree of skill and care.
Failure to exercise such a degree of skill and care leaves a professional open to an action in negligence by an aggrieved patient. The standard of care and skill required is that possessed by a person of ordinary competence in the same field. Actions for negligence may also arise through a failure to provide sufficient information so that the consent obtained is not a proper consent. In relation to information procedures by professionals, the standard of care is determined by reference to the information needs of the patient and not, as with diagnosis and treatment, by reference to the usual practice of doctors in the same field. A professional who undertakes to care for a patient has a duty to exercise reasonable care and skill to avoid injuring the patient. This duty of care does not depend upon the existence of a contractual relationship or entitlement to remuneration. It is an obligation, recognized by law, to avoid conduct which would pose unreasonable risk to others in circumstances of ‘proximity’. This duty of care may be based on common or statute law.
Value Statement 8
Autonomy, beneficence, non-maleficence and justice are four basic principles upon which ethical medical practice is founded.
Justice may be defined as a fair adjudication of competing claims. Desirable criteria for achieving justice remain those attributed to Aristotle, namely, equal consideration, impartiality and fairness. In the context of distributive justice and health care, justice in the apportionment of health care resources has traditionally been based on medical need. The clear move away from paternalism and towards autonomy should make it clear that patients expect doctors to tell them the truth. It is not possible to adhere to the basic ethical principles of autonomy, beneficence and non-maleficence without demonstrating fidelity, trustworthiness or reliability. These are the qualities to be demonstrated which make the practice of medicine so onerous.
While not absolutely essential for the satisfactory completion of any contract, there are two other characteristics which assist most professionals in developing and maintaining effective relationships with patients and also assist in finding means acceptable to parties with disabilities to avoid potential breaches of ethical responsibilities. These are compassion and discernment. Compassion in the context of medical practice encompasses perceptivity and sensitivity to the needs of the patient, kindness and humaneness. The converse of compassion includes thoughtlessness, rudeness, abruptness and insensitivity. Discernment in good medical practice implies (whether by intuition, insight, good communication, experience or other reasons) that the professional is able to discern the real need of the patient, the hidden concerns of the family, the true reason for the patient presenting on a particular day.
Although ethical guidelines are designed to guide professionals’ behavior, they cannot anticipate every contingency of professional practice. Professionals may fully endorse the principles enshrined in ethical guidelines; however, this does not leave them immune to potential emotional, philosophical or spiritual conflict and confusion. Consequently, there is an onus on each practitioner to gather as much information as possible regarding the situation in question. Reference to ethical principles may clarify one’s thinking and assist in ethical decision-making. Professionals can safeguard their clients’ interests by seeking supervision and by engaging in discussion of ethical dilemmas with their supervisors and their colleagues. Reflective practice is at the core of ethical conduct. An objective analysis of one’s conduct together with an acknowledgement of any occasion when ethical principles may have been challenged will assist in ensuring ongoing professional development in respect of sound ethical decision-making. Furthermore, the consistency of the ethical principles which have been handed down could reinforce a sense in the community that the principles were developed in isolation by the medical profession. This has never been the case, as the moral or ethical principles enunciated have always reflected the values of the communities in which the doctors practiced at the time. This work emphasized the key ethical guidelines of medical practice and serves. The modern professional needs to be cognizant of the needs and rights of the individual patient and, to a lesser extent, of the community generally. Professionals who possess good communication skills, respect their patients and have a broad knowledge of the law as it pertains to medical practice will be well equipped to resolve most of the ethical dilemmas which they will encounter in the practice of their profession.
“Canadian Code of Ethics for Rehabilitation Professionals” (June 2002). Canadian Association of Rehabilitation Professionals Inc.
Breen, Kerry J. (1997). Ethics, Law and Medical Practice. Allen ; Unwin: St. Leonards, N.S.W..
Fiddell, B. (2000). “Exploring the use of family therapy with adults with a learning disability.” Journal of Family Therapy, 22.
Swain, R. (1996). “Ethical codes, confidentiality and the law.” Irish Journal of Psychology, 17(2).