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Ethics codes and the law

March 15, 2011
by Charles W. Hemingway, JD, MS, NCC, CADC-I and Douglas S. Querin, JD, MA, CADC-I
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Code provisions often have relevance well beyond the group establishing the code

As NAADAC, The Association for Addiction Professionals, moves toward finalizing revisions of its Code of Ethics in 2011, it is appropriate to review generally how codes of ethics function in different contexts to affect the practice of professional addiction counseling. In this article, we will explore ethics codes and the law; ethics codes and certification boards; and ethic codes and professional associations, paying particular attention throughout to the frequent interfacing between ethics and the legal system.

Within the addiction and mental health counseling professions, codes of ethics represent consensus standards of conduct, reflecting the professions' aspirations, expectations and obligations. They are adopted and relied upon by licensing boards, certification organizations, professional associations, and college and university graduate training programs. They serve to protect clients and others, educate the public, provide guidance to practitioners, provide a basis for regulatory oversight, and promote the profession's overall integrity. In many important ways, codes of professional ethics also directly and indirectly interface with our laws and legal system.

Ethics codes and legal cases

There are three legal arenas within which the conduct of addiction professionals is regulated: the criminal law system, the civil law system and the administrative law system. As a general rule, codes of ethics are not directly relevant to criminal law cases. While criminal conduct by a professional (e.g., fraudulent billing practices; sexual relations with a client) will always violate ethical principles, guilt or innocence in criminal cases is ultimately determined not by reference to ethics codes, but instead by statutes that specifically define illegal conduct.

Ethics codes do, however, often play an important role in civil law actions (e.g., professional malpractice claims) and in administrative law proceedings (e.g., licensing board disciplinary actions). In malpractice litigation, the aggrieved party, or plaintiff, typically asserts that he or she suffered injury as the result of the misconduct of another (the defendant). In these cases, the party claiming injury will have the burden of proving that the defendant acted negligently-that is, that the defendant's conduct violated the standard of care generally accepted within the professional community.

Professional ethics codes often are used as both a sword and a shield in malpractice litigation. Each party might contend that particular ethics code provisions support his or her claim that the professional's conduct in question was or was not ethical; that it did or did not violate accepted standards within the professional community.

If, for example, a client claimed that a defendant breached his or her confidentiality, failed to obtain informed consent, improperly engaged in a dual relationship, or provided incompetent services, the plaintiff likely would rely in part on provisions within an applicable code of ethics. The plaintiff would argue that such code provisions are evidence of the standard of practice by which the defendant professional's conduct should be measured. The professional likely would respond by denying the plaintiff's allegations, contending instead that his or her own conduct was proper and in accordance with the professional community's ethical standards. In this manner, ethics codes often play an important role in civil litigation, as each party uses them to support a legal position.

The third legal arena, and the one most likely to be encountered by licensed professionals, is administrative law. State legislatures enact laws intended to define and regulate the practice of most professions within their states, delegating to state agencies (e.g., licensing boards) the legal authority to administer those laws. The primary purpose of these state agencies is to protect the public. They develop and, after opportunity for public comment, enact administrative regulations that establish licensing procedures, professional practice criteria, and ethical rules and standards of conduct.

The licensing boards are generally also granted the legal authority to investigate complaints against the professionals they regulate, hold evidentiary hearings, and, if appropriate, assess disciplinary sanctions ranging from private and public reprimands to license revocation.

There are basic due process safeguards legally in place to ensure procedural fairness for the professional whose conduct a licensing board scrutinizes. These safeguards typically include the rights of the professional to know the nature of charges, the right to an evidentiary hearing, and the right to appeal the board's final decision.

Ethics codes and practice standards adopted by licensing boards mirror those recognized by the professions they regulate. Within the helping professions, the boards' codes of ethics address issues such as informed consent, confidentiality, boundaries, dual relationships, competency, recordkeeping and diversity/multiculturalism. If a counselor's client files a complaint with the state licensing authority, the board's public protection duties require that it determine if its administrative regulations (i.e., its rules, standards and/or code of ethics) have been violated and, if so, what discipline should be assessed.