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When Laws and Values Conflict:
A Dilemma for Psychologists

Ken Pope (Independent Practice)
Theresa Rose Bajt (Harvard University)

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Edmund Burke (1790/1961) stated the importance of absolute compliance with the law: "One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause" (p. 71). The U.S. Supreme Court, in Walker V. Birmingham (1967), underscored this "belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion" (pp.1219-1220).

Henry David Thoreau (1849/1960), however, urged that if a law "requires you to be the agent of injustice to another, then, I say, break the law" (p. 242). Even the California Supreme Court seemed to give tacit approval to breaking the law as long as it is done within the framework of civil disobedience: "If we were to deny to every person who has engaged in... nonviolent civil disobedience... the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage" (Hallinan v Committee of Bar Examiners of State Bar, 1966, p. 239).

Neither stance may seem acceptable to psychologists who believe that compliance with a legal or professional obligation would be harmful, unjust, or otherwise wrong. Absolute compliance connotes a "just following orders" mentality all too ready to sacrifice personal values and client welfare to an imperfect system of rules and regulations. Selective noncompliance connotes an association of people who have anointed themselves as somehow above the law, able to pick and choose which legal obligations and recognixed standards they will obey.

Civil disobedience itself may be precluded in significant areas of psychology. Coined as a term by Thoreau, civil disobedience as a concept has been developed, defined, and justified as an act involving open and public violation of the law while volunteering to accept the legal penalties (Gandhi, 1948; King, 1958, 1964; Plato, 1956a, 1956b; Thoreau, 1849/1960; Tolstoy, 1894/1951). This absolute openness--the lack of any attempt to avoid detection and prosecution--is essential in reaffirming respect for the process of law and accountability. But how can a psychologist, for example, publicly refuse to make a mandated report (e.g., regarding child abuse or potential harm to third parties) about a student, client, or subject without betraying the supposedly secret information?

We used an anonymous survey, with a 60% return rate, to explore this dilemma. The questionnaire was mailed to 100 senior psychologists, presumably acknowledged by their peers as knowledgeable and scrupulous regarding professional accountability: 60 current or former members of state ethics committees (50 of whom had served as chairs), 10 current or former members of the American Psychological Association (APA) Ethics Committee, 10 authors of textbooks focusing on legal or ethical aspects of psychology, and 20 diplomates of the American Board of Professional Psychology.

The first question was: "In the most serious, significant, or agonizing instance, if any, what law or formal ethical principle have you broken intentionally in light of a client's welfare or other deeper value?" A majority (57%) acknowledged such instances. Of these 34 instances, the following were reported by more than one respondent: 7(21%) involved refusing to report child abuse, 7(21%) involved illegally divulging confidential information, 3(9%) involved engaging in sex with a client, 2 (6%) involved "dual relationships" (no details), and 2 (6%) involved refusing to make legally mandated warnings involving dangerous clients. It is interesting to note that 48% involve the issue of whether certain information should be kept confidential. It is dismaying to note that 9% involve psychologists' using "client welfare or other deeper value" as a rationale for engaging in sex with a client.

Incidents reported by one respondent each were giving a student an inappropriately high grade to "help" the student, helping a colleague to fake a credential, using one's professional status and expertise to help someone obtain an illegal abortion, committing perjury to keep a client from going to jail, engaging in "insurance fraud" (respondent's phrase) to help the client pay for services, treating a minor without parents' consent, refusing to turn over a former client's records in response to a legitimate request, accepting a very expensive gift from a client, withholding significant information from a patient, refusing to collect insurance co-payment, blurring a personal and professional relationship, continuing therapy beyond the point at which it should have ended, and "lied about my experience treating a particular disorder, in order to instill confidence in the patient-to-be."

Exactly half of the respondents consulted someone before taking the action; 68% discussed the incident afterwards. Beneficial results were reported by 91%; ill effects by 44%. Only one psychologist was, as a result of the incident, the object of a formal complaint. Seventy-three per-cent would, in hindsight, take the same action if the circumstances were the same.

Seventy-seven percent of the respondents believed "that formal legal and ethical standards should ever be violated on the basis of patient welfare or other deeper values." In light of the fact that three fourths of this select sample believed that psychologists should sometimes violate formal legal and ethical standards, and that a majority have actually done so, it is regrettable that only 18% report that the topic of conflicts between deeply held values and formal legal or ethical obligations was adequately addressed in their education, training, and supervision, and that only 22% believe that the topic is adequately addressed in the professional literature.

Are the aims toward which our laws and formal ethical standards strive ultimately supported or subverted when psychologists intentionally violate explicit legal and ethical standards that conflict with the psychologists' deeply held values? How can psychologists who believe that the authority of the legal and ethical codes are not absolute ensure that their actions are based on sound professional judgment rather than on self-interest, prejudice, rationalization, and the sense that one is "above the law"? Are the integrity, effectiveness, and fairness of our mechanisms of accountability--such as university grievance committees, human subjects review committees, and ethics committees--enriched or eroded when those who sit in judgment on the behavior of others have themselves intentionally broken the rules that they are seeking to enforce? Such dilemmas are in need of open acknowledgment and serious study.

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