APA’s Ethics Procedures Changing
This column will provide a brief overview of these changes, why they occurred, and how they will impact the ethics-enforcement process. Of note, these changes were presented at two well-attended back-to-back ethics workshops at APA’s 2003 annual meeting in San Francisco. The workshop presentations were followed by vigorous, insightful discussions.
As members and staff of APA and district branch ethics committees well know, discussions of ethical issues tend to be lively and passionate, taking on a life of their own. Strong convictions about ethics are the rule rather than the exception among APA psychiatrists, a vibrant sign of our organization’s health that its members hold in such high regard the ethical practice of psychiatry.
• Educational Option
This change will have the greatest impact on the APA ethics process by making available a second pathway, the Educational Option, to complement the traditional Enforcement Option pathway. This innovation answered concerns that APA ethics enforcement was too adversarial and lacked sufficient emphasis on education. Historically, APA’s principal mission in the area of ethics, as with many medical organizations, has been one of education.
In determining which approach to use, district branches will take into consideration such factors as the nature and seriousness of the alleged misconduct and prior findings or allegations of unethical conduct. The goal of the Educational Option is to allow district branches to resolve complaints in an educational rather than enforcement atmosphere.
A major benefit to the members to whom the Educational Option applies is that they avoid the potential stigmatization following a formal finding of an ethical violation. The district branch shall “make no determination as to whether the respondent has violated the Principles”—provided the respondent cooperates with the plan.
The Education Option is designed for less-serious allegations of unethical behavior that necessitate action on a district branch’s part, yet don’t convincingly rise to a level of infraction—if proved true—that calls for a sanction. The use of the phrase “less serious” is not meant to imply that ethical violations at the lower end of the culpability spectrum are not serious. An analogy in our justice system is a legal charge that is not prosecuted, provided the defendant satisfactorily participates in a program of remediation (for example, driver education class, anger-management training). Previously, district branch ethics committees were faced with the minimal sanction of a reprimand for those members who might otherwise now fall into the Educational Option category, a conundrum for district branches when the violation called for some degree of intervention, yet a formal reprimand seemed too heavy-handed.
District branches have considerable latitude in devising an educational plan, allowing room for individualized, creative plans. Interventions might include meeting with the member with or without the complainant, or, after completion of procedures used by the district branch, requiring participation in a CME course and assigning readings or a consultative/supervisory experience.
The choice of whether to accept a district branch’s offer of the Educational Option pathway rests with the accused member. He or she may choose not to accept this option and, instead, to have the complaint investigated and resolved pursuant to the traditional Enforcement Option procedures. However, if the Educational Option is chosen and at any time the district branch decides that the respondent has not cooperated with its consideration of the complaint, including participating in a manner appropriate to an educational experience and complying with any educational steps required by the district branch, it may inform the respondent that the case will be returned to the Ethics Committee for processing pursuant to the Enforcement Option or that the respondent’s name will be forwarded to the APA Board of Trustees with a recommendation that the member be dropped from APA.
• Transfer of Ethics Appeals to the APA Ethics Committee
As of January 1, the APA Ethics Committee, rather than the Ethics Appeals Board, is the next level to which a case advances when the involved member requests an appeal. A panel of three APA Ethics Committee members who have not been involved in any review of the case beforehand will consider the appeals. This modification was brought about by the rationale that the Ethics Appeals Board was unnecessarily cumbersome and expensive for the organization given fiscal restraints, and this new process would not jeopardize a member’s right to an appeal heard by a neutral, fitting body. This new appeals process will allow cases to be decided solely on the basis of the district branch’s documentary record and written appeal statements filed by the respondent. No longer will respondents be able to appear in person before the Appeals Board. Members appealing decisions regarding complaints received by the district branch prior to January 1, 2003 will still be entitled to have their appeals heard by the Ethics Appeals Board. However, if such a case has been reviewed by only half of the APA Ethics Committee, leaving the other half free to hear the appeal, and the member agrees to have his appeal heard by an Ethics Committee panel, rather than the Appeals Board, the appeal will be heard by the committee. Once these appeals are exhausted, the board will be dismantled.
• Statute of Limitations
The third change to the ethics process is the imposition of a 10-year statute of limitations. For patients who were minors at the time of the alleged infraction, the 10-year limitation period will begin once the patient reaches the age of majority, age 18 in most states. This change was enacted for two main reasons: evidence and witnesses tend to be less available and reliable over time, and district branches don’t have unlimited resources to tackle investigative challenges associated with older complaints. This change brought about spirited discussion among APA Ethics Committee members, with some arguing that the rare case with well-preserved evidence would go unheard if a statute of limitations was adopted. For example, imagine a boundary-violation scenario in which a former patient produced photographs documenting a vacation he or she took with his or her psychiatrist during the course of treatment. History, however, has shown allegations of unethical conduct preceding the complaint by more than 10 years are a rarity.
In closing, these three new procedural modifications to APA’s ethics regulation and education process provide district branches with a more flexible, comprehensive set of tools to handle complaints of unethical conduct, and also put a greater emphasis on the primary goal of the ethics process: education. ▪
Dr. Myers is vice chair of APA’s Ethics Committee.
