Ethical Decision Making to Avoid Disciplinary Action

Originally published in Forum Magazine

Originally published in Volume 22, Number 1 of the Federation Forum Magazine.

Note: The following article was written from an educational session presented by Annette Iglarsh and Nancy Kirsch at the 2006 FSBPT Annual Meeting in Portland, Oregon.

A Board of Education is complaining that a licensee spoke to a family without the permission of the child study team. According to its rules, any kind of communication with the family needs to go through the child study team. The licensee was the school’s employee. She was not their employee at the time this complaint was sent in, but she did sign a contract agreeing to this condition of communication. The communication needs to be documented and there was no documentation.

At an investigative inquiry, the licensee said that she gave notice that she was leaving two months prior to the end of the school year. As she had been with the district for nine years, she asked the district if she should tell the parents. The school district said “no,” because it did not want to alarm the parents. She saw the parents at the end of the school year at a class party and when the parents said “See you in September,” she felt it was her ethical obligation to tell them that she would not be back in the fall.

Unethical behavior usually results in a loss of trust among the public. It’s been said that as physical therapists start to assume a more autonomous role in healthcare, ethical judgments are going to play an increasingly important role in the gamut of clinical decision making.

Ethical Infancy
Physical therapy is considered to be in its ethical infancy. Ethical decision making is a very mature professional ability and as a profession, our maturity is evolving. Physical therapists have not had an opportunity to make independent, autonomous ethical decisions over the long run. We often look to professional codes for guidance; however, it has been said that professional codes do not help manage daily dilemmas. The privilege and influence accompanying autonomous practice obligates physical therapists to look beyond both the literal and superficial interpretations of their ethical code, and to consider the complexities of ethical issues that are evident in the current practice environment.

More Ethical Decisions
Today people face more ethical decisions that they did just five years ago. Whether they are confronting them more, they are recognizing them more, or they need to accept more responsibility for them individually is not known, but people definitely deal with more ethical issues.

Healthcare Ethics are Unique
Healthcare ethics are unique because we deal with people who are vulnerable, people who have been injured. Most of the time they do not know very much about physical therapy until they actually need it, so they are unable to determine good practice. Certainly people have an expectation that healthcare providers are going to rise to a higher level of ethical decision making than the normal public. The consequences of making a bad decision can have life altering, direct consequences.

Are there consequences for unethical behavior?
Boards have confronted unethical issues such as abandonment (inappropriate discharge), veracity (lying on documents or bills) and justice (unfair distribution of services). If the behavior is covered by the practice act, yes, there may be consequences. If it is not, many times the board’s hands are tied. Boards often recognize that certain individuals have very limited skills in the ethical decision-making arena. How can boards assist licensees in making right decisions? What kinds of tools can we give them? What is the best way to integrate skills in ethical decision making into their clinical practice?

Can ethical decision making be taught?
Probably. We find that if people are unethical and do not recognize that they are unethical - and may even like being unethical - that it may be difficult. The research on our ability to make ethical decisions indicates that we are improving. So that is a good sign.

There is a good body of research showing that there are ways in which people can improve their ethical decision-making skills with a learning format. Using case studies is the most effective way to do that. However, doing case studies via online training does not work especially well because discussion is necessary to improve ethical decision-making skills.

There is also research that found that teaching ethics in terms of decision making and not in terms of just principles decreases uncertainty in making decisions. It speeds up the process. This is another tool that students (and licensees) need to integrate with their clinical decision-making skills in order to make appropriate judgments about how to approach a patient.

Can we determine what is right?
Sometimes you can figure out the right thing to do, but when you go back and look at it, it was a gut feeling. So how do we figure it out if we do not have a particular gut feeling about something?

Research demonstrates a very positive correlation between education and higher levels of ethical reasoning ability. It would stand to reason that we as physical therapists should have high ethical decision-making skills because we have a fairly high education. Well, we do have the educational skills, but for a very long time we practiced in an environment where we did not have the ability to make autonomous decisions, so we did not develop those skills. You have to use skills repeatedly in order for them to be effective.

Types of Morality

• Personal: values and duties you adopt as relevant
• Societal: common denominator of shared beliefs
• Group: shared by the group you belong to such as work, religious, social and professional groups

These are really the three levels in which an ethical decision needs to be made. You have to make a decision when you are confronted with an ethical problem, ethical distress or an ethical dilemma.

• An ethical problem is one in which the practitioner is confronted by challenges or threats to his or her moral duties and values.
• Ethical distress occurs when practitioners know the course of action they should take, but for whatever reason, they do not take it. They may be blocked from being the kind of person that they want to be and cannot do the things that they really want to do or they feel is right. There may be institutional or financial barriers.
• An ethical dilemma is when there are two morally correct courses of action, but they cannot both be followed at the same time. An example is patients that refuse physical therapy. They have the right to refuse, but you as a practitioner know that therapy is needed. So you want to convince them to be treated and to accept the intervention. The conflict is their right to be autonomous and your realization that they need treatment.

Aristotle said, “Do not seek any answers that are more precise than the field of inquiry allows.” Ethics does not provide concrete answers. It provides the opportunity to say, “This is one good way to handle it, but on the other hand, there is another good way to handle it, but on the third hand, if you should happen to be born with three hands, here is another way to handle it.” It does not give you that comfort zone for a solid decision to be made. The nature of ethical decision making is a little bit different than the kind of decision making used when making a clinical decision or evaluating a patient. It has a logic used to make clinical decisions, but it is not mechanical.

Determinants of Ethical/Moral Behavior
There are basically four components to moral behavior - moral sensitivity, moral judgment, moral motivation and moral character. For a good ethical decision to be made, all four of these components have to be in place. None is more important than the other. All four of them have to be in place to meet the “rotator cuffs” of ethical decisions.

Moral Sensitivity
Moral sensitivity is the ability to interpret the situation and project the consequences of your actions. If you do not have moral sensitivity, then you do not act ethically because it does not occur that what you are doing is going to affect anybody else.

Moral Judgment
Moral judgment is deciding which action is right or wrong because you are able to assess how the different lines of actions that you could take will affect other people.

Moral Motivation
Moral motivation prioritizes moral values over motives such as self gratification, making money, revenge, protecting your reputation or protecting your organization.

Moral Character
This is the ability to have the perseverance, the toughness, the conviction and the courage to take action to correct something that you know is wrong. This is taking on the duty to report even if you are not required to report. It is truly the essence of professional behavior. This is the standard that we need to achieve. We need to help people understand that it is their responsibility to stop actions that might be negative for the people that they treat and for the community that we serve.

Moral Failure
Moral failure occurs when any of these components do not happen. In order to take moral action, you have to have all four of them. It is a complex interaction.

Using the RIPS Model
There are many ethical decision-making tools but they really do not apply to the types of dilemmas physical therapists confront. The RIPS model has been adapted for physical therapists and is the result of a lot of work by Rushworth M. Kidder, who wrote the book, How Good People Make Tough Choices. It was developed by L. Dolly Swisher and the Ethics and Judicial Committee of the APTA.

RIPS Framework

Is there is an ethical issue? Some things make you feel uncomfortable. This is the hardest part; accurately defining the problem, why we are concerned about the situation and what it is that is making us feel uncomfortable. Can you identify the ethical principles? Are they conflicting ethical principles? Is there a problem or distress or a dilemma?

Why is it a problem?

• Professional: Does it conflict with professional values?
• Personal: Does it conflict with personal values?
• Economic: Is there a financial problem that may evolve? Are there going to be financial difficulties for you if you leave a particular situation?
• Intellectual: Is it something you cannot understand or you cannot justify from a purely intellectual point of view?
• Societal: Is this going to have an overall impact on society?

Which ethical principles are involved?

• Autonomy: patients have the right to make some decisions as well as we do.
• Beneficence: care in the best interest of the patient
• Non maleficence: “do no harm”
• Justice: equity or fair treatment
• Veracity: truthfulness

What type of an ethical situation is it? Is it an issue, distress or a dilemma?

Test for Right versus Wrong¹

1. Legal test: Is it legal? Know your practice act and rules and regulations.
2. “PU” test: Does it feel or “smell” wrong?
3. Front page test: How would it look on the front page of the newspaper?
4. Mom/Dad Test: How would your parents feel if they knew what you were doing?
5. The professional ethics test: What do the Code of Ethics, Standards of Ethical Conduct say?

What course of action are you going to take? Use your moral imagination. Is there another way to do it other than the obvious ways? Is the course of action consistent with ethical principles, with the Code of Ethics, with your practice act and rules and regulations?

What will happen when you take this course of action? Analyze the course of action. Are there any barriers to implementation from your institution or does the action require moral courage to implement?

After the action has been taken, were there any unexpected results, any collateral damages or anything that you may not have expected? Is there any further action required? What did you or anybody else involved learn from the process? Do any organizational structures or policies require revision?

The RIPS framework deals in realms, individual process and situation. Let us apply this model to the case shared at the beginning of the article.

Is there an ethical issue? The problem is that the school PT was constrained from doing what she thinks is right. She wanted to tell the parents. She wanted going-away presents. She wanted to tell the truth. She had been there for several years and probably knew some of these children since they were in pre-school. She felt that if she did not say something to give parents an appropriate amount of time to make a decision or try to find somebody, she was abandoning the children.

Why is it a problem? Both parties signed that contract. From a professional perspective, her autonomy, it hindered her ability to do what she thought was right. From a personal perspective, it offended her personal ethics that she thought she could not do the right thing. Economically, there was probably not an issue from her perspective, but there might have been one from the school’s perspective. Intellectually and societally, the school community felt that its rights were being negated.

What ethical principles are involved? Primarily, autonomy and veracity are involved.

What course of action are you going to take? The course of action she chose to take was to speak to the parents. She was approached by the parents; she was not going to lie to them, so she just said she was leaving. And that was not what the school had asked her to do. The parents felt that they had not been told the truth, and it caused a lot of angst over the summer. Could she have approached this in another way?

She could have been proactive and made the moral judgment early on. Even if they didn’t say, “See you in September,” she could have said, “According to my Code of Ethics and professional responsibility, I feel I have an obligation to tell you the truth.” Also, if the therapist did nothing at all, the school board may have had an even worse situation. The harm appeared to be towards the employer. The family did not really seem to have been harmed.

As members of the licensing board, we are responsible for protecting the public. It does not matter what phase of licensure is being discussed – as a student, during the licensure process or after being licensed. We are responsible to protect the public by dealing with illegal and unethical behavior. Since we are now autonomous practitioners in almost all states, we have become the portal of entry into the medical system. Part of our autonomous practice is a trust that we develop and cherish in our patients. An unethical behavior can violate that trust. We can no longer say, “The doctor told me to do that.” Now we are truly responsible for our actions. We need to know or we need to identify that protecting the public is truly our obligation when we take our oath of office. It is very clear.

¹Adapted from Kidder's four point test.