Reflections on Ethics Complaint Adjudications
As ASHA's director of ethics, I serve as the ex officio member of the Board of Ethics and participate fully in the activities of the board (with the exception of voting). One of the major responsibilities charged to the Board of Ethics is the formal adjudication of ethics complaints. Thus, I have had the opportunity to participate in and observe hundreds of complaint adjudications over the years and would like to share some of my reflections about them.
The Jurisdiction of the Board of Ethics Is Limited
Many individuals who file complaints with the Board of Ethics fail to recognize the limited nature of ASHA's jurisdiction. The board routinely receives complaints alleging misconduct by individuals, organizations, or institutions that cannot be adjudicated because of lack of jurisdiction. There are two major requirements for the Board of Ethics to have jurisdiction to adjudicate an ethics complaint. First, the complaint must be against an individual who, at the time the complaint is filed, is either an ASHA member or certificate holder. Clinical Fellows are within the jurisdiction of the board if they hold the status of "member in the certification process." Second, the individual complained against must have been either a member or certificate holder at the time of the alleged misconduct itself.
Many Ethics Complaints Could Be Avoided With Effective Ethical Decision Making
The Board of Ethics encourages individuals to make a good faith effort to solve ethical dilemmas through sound ethical decision making as problems arise-before they mature to a point of a violation mandating the filing of a complaint. However, ethical decision making in difficult situations can be challenging and some individuals do not know how best to do it. To assist members and certificate holders in making appropriate ethical decisions, ASHA has many resources available, including the availability of the director of ethics at the National Office for confidential guidance.
ASHA Cannot Provide Complainants With a Remedy
ASHA's ethics complaint adjudication process does not afford individuals who file complaints (Complainants) a venue to seek a remedy against the individual they have filed the complaint against. Examples of cases where Complainants have sought remedies include requests that the Board of Ethics award compensation for an alleged injury, back pay, or other forms of employment compensation, and monetary damages for breach of contract. Complainants are not provided any form of compensation or satisfaction of a grievance if the person complained against (Respondent) is found in violation of the Code of Ethics.
Complaints Filed With Retaliatory Intent Are Not Appropriate and Generally Are Not Effective
Some complaints, even upon initial review, are clearly the result of a real or imagined personal or professional dispute the Complainant is having with the Respondent. Sometimes the problem is no more than a situation where reasonable minds differ, and with concerted efforts the situation could have been resolved in a collegial manner and without the need for assertion of ethical violations. Complaints are most persuasive when the facts and circumstances are reported objectively and free of any indication that there was a motive for filing the complaint that was based on bias, ill will, or malice.
ASHA's Complaint Adjudications Are Not Prosecutorial
Some try to see a similarity between the adjudication of an ethics complaint and a criminal case before a court of law, but any such similarity is merely a matter of perception. When the Board of Ethics adjudicates a complaint, no third party appears before the board in the role of a prosecutor to present the case and argue for a finding of a violation. The procedures and policies of the Board of Ethics are as nonadversarial as possible. The Board of Ethics deliberates a complaint and renders its decision based on an objective consideration of the facts and information provided by the Complainant and Respondent (and reasonable inferences therefrom).
Respondents Should Take an Ethics Complaint Seriously
Even though the procedures of the Board of Ethics are as nonadversarial as possible, Respondents should rigorously defend against an ethics complaint from the time they receive notice to the day the Final Decision is issued. Respondents should not wait until the Board of Ethics issues an Initial Determination of an ethics violation before getting serious about their defense. It can be more difficult to have a decision reversed on appeal than it is to prevail at the initial hearing of the matter. Respondents who feel, for any reason, that they cannot prepare a defense against the allegations in the ethics complaint should consider the assistance of legal counsel.
Respondents Should Mount a Complete Defense and Argue Their Cases, Not Just State Them
Respondents should carefully review the complaint allegations against them, and the supporting evidence, to ensure they file an adequate defense. Each and every allegation (stated or implied) in the complaint should be responded to. Allegations not answered by the Respondent may be deemed admitted by the Board of Ethics. Respondents have a right to representation and some would benefit from legal counsel in the preparation and presentation of their defense against the complaint under review by the Board of Ethics. Attorneys are trained and skilled advocates and know how to present cases in a manner that maximizes aspects of the defense most relevant to securing the best outcome possible for the Respondent. In those cases where a violation is found, effective advocacy may make a difference in the severity of the sanction ultimately imposed.
Sometimes a Respondent May Benefit From Acknowledging a Violation
In some cases, there is overwhelming evidence that the Respondent violated one or more provisions of the Code of Ethics. The respondent then has to decide whether to attempt to defend against the allegation(s) or acknowledge the violation. If acknowledged, the Respondent's efforts can then be dedicated to
- putting forward evidence in mitigation,
- documenting the actions being taken by the Respondent to rectify any harm or detriment caused by the violation, and
- nforming the Board of Ethics of what the Respondent is doing in an affirmative manner to ensure similar conduct will not occur again in the future.
In essence, the defense is redirected in an effort to minimize any sanction imposed, rather than an attempt to defend a case where the evidence against the respondent is strong. (Note: It is in the best interest of Respondents that any decision to acknowledge responsibility for an ethics violation only be made on the advice of his or her legal counsel.)
Some Respondents Do Not Appreciate the Possible Ramifications of a Finding That They Violated the Code of Ethics
An ethics violation carries serious consequences. Depending on how egregious the violation is, the sanction could be revocation of ASHA membership and certification for a period of years or life. Less serious violations can result in a Reprimand or public Censure. Respondents should plan their defense with these considerations in mind.
Some Respondents Do Not Exhaust Their Opportunities to Appeal Adverse Decisions
Respondents are provided due process during ethics complaint adjudications. Adverse Initial Determination decisions can be appealed to the Board of Ethics by requesting a Further Consideration hearing. Adverse Further Consideration decisions can be appealed, on limited grounds, to an Appeals Panel of the Association's Board of Directors. Respondents should not waive these opportunities to appeal without careful consideration.
Respondents May Lose Their Right to Appeal If They Fail to Adhere to Filing Requirements
There are strict time constraints on filing a request for a Further Consideration hearing or an appeal to the Board of Directors. A Respondent's written request for Further Consideration must be received by the Board of Ethics no later than 30 days from the date of notice of the Initial Determination. The appeal to the Board of Director's Appeal Panel similarly requires the Respondent to file the request within 30 days after the date of notice of the Further Consideration decision. Respondents should keep these time requirements in mind to avoid inadvertently losing their right to appeal by failing to satisfy a procedural requirement.
Some Respondents Who Have Had Their Membership and/or Certification Revoked Never Seek Reinstatement
The Board of Ethics has a procedure that affords Respondents an opportunity to make formal application to the board for reinstatement of their revoked ASHA membership and/or certification at the conclusion of their revocation period. The applicant has the burden to prove that the conditions that led to the revocation have been rectified and that the individual will adhere to the Code of Ethics after reinstatement. Reinstatement requires a two-thirds vote by the Board of Ethics, and the applicant must meet all certification standards and procedures of the Council For Clinical Certification and/or ASHA membership requirements that are in effect at the time reinstatement is sought.