Intentional Versus Negligent Conduct: A Way to Characterize Ethics Complaints Adjudicated by the Board of Ethics
Recently, the Board of Ethics found a speech-language pathologist in violation of the Code of Ethics and sanctioned her with revocation of ASHA membership and certification for life. That was a harsh penalty for very egregious conduct. Fortunately, the Board of Ethics has only had to impose the sanction of revocation for life approximately 10 times in the past 7 years. Unfortunately, what have been far more common are cases in which the misconduct was not as bad and the sanctions imposed were less punitive, such as private reprimand, public reprimand ("censure"), or revocation of membership and/or certification for a period of years, usually ranging from 1 to 7 years.
So, egregiousness is one way to characterize cases adjudicated by the Board of Ethics; some cases are simply worse than others. Additional ways to characterize cases are by monitoring the rules of the Code of Ethics that are most frequently violated and by trying to identify common fact patterns in ethics violations. However, in my mind, we still need more information about the individuals themselves engaging in professional misconduct in order to help us address the problem and prevent its occurrence in the future. To that end, I would like to propose that it may be helpful to also characterize ethics complaints that come before the Board of Ethics by analogy to civil law torts.
There are two major types of civil torts:
- the intentional tort
- the tort of negligence
The following hypothetical situation is an example of an intentional tort. You are a famous movie star being hounded by a horde of paparazzi taking your picture wherever you go. Even though the photographers remain a reasonable distance from you and do not constrain your movement in any manner, you finally get fed up with their persistence and punch one photographer in the face, breaking his nose. In this case, it was apparent from your actions that your intent was to hit the photographer even if you did not intend to break his nose. Under these circumstances, the photographer will likely sue you, alleging an intentional tort, and seek compensatory damages (e.g., medical expenses, lost wages, and pain and suffering). In addition, because of the intentional nature of your conduct, you may also be ordered to pay the photographer compensation in the form of punitive damages (damages that are not compensatory, but are to punish you for your conduct).
The tort of negligence is different. Imagine yourself driving down the street in your large SUV while talking on the cell phone with your daughter. Everything is fine until the subject of your daughter missing curfew three nights in a row comes up. As the conversation turns into an argument and you become distracted, you drive through a red light without stopping and hit a car that had the right of way. The driver of the car you hit suffers a broken nose, the same injury as the photographer in the intentional tort scenario above.
You can see, however, that there is a distinction between the two scenarios. You did not intend to hit the car as the movie star intended to hit the photographer. Rather, the crash was an accident caused by your negligence or carelessness. You owed a duty to drive carefully, you breached that duty by driving without paying attention, and that breach was the proximate cause of the injury and damages the other driver suffered. Your actions were consistent with the tort of negligence. As a consequence, the injured driver can sue you for that negligent driving and receive compensatory damages, however, because of the unintentional nature of your conduct you will not have to pay punitive damages (and, unlike the movie star, you would also not be subject to a criminal charge of assault and battery).
Keeping the distinction between intentional and negligence torts in mind, I believe that we can benefit from analogizing ethics complaints adjudicated by the Board of Ethics to the two types of civil torts just described.
Examples of ethical misconduct that could be construed to be of an intentional nature include the following
- engaging in reimbursement fraud and abuse (e.g., charging for services not rendered; treating clients in a group setting but charging the insurance carrier for individual therapy)
- forging documents and records
- scheming with a nursing home administrator to gain access to patients to aggressively market hearing aids to patients who don't need them or making unnecessary repairs on hearing aids patients already own and then demanding payment before returning them
- hiring eight Clinical Fellows in an effort to keep labor costs low and agreeing to be their Clinical Fellowship mentor knowing that you will not be able to adequately supervise all of them.
Let's distinguish these examples from cases that can be characterized as negligent, not intentional, conduct:
- agreeing to take on increasingly greater numbers of clients/patients to the extent that you are not providing adequate services to any of them. Audiologists and speech-language pathologists are good people and it is hard for them to say "no" when they see a need for services. What some don't realize is that allowing their caseloads to grow too large can work to the detriment of those we serve.
- not maintaining adequate records. When we have a choice between seeing one more client before lunch versus taking the time necessary to complete our record-keeping requirements, we often put the paperwork off until a (much) later time. Record keeping can fall victim to the relentless march of clients during the day to such an extent that it may become difficult or impossible to remember all of the information required for a complete and accurate record for each client.
- a speech-language pathologist not referring a client for hearing testing when information about a client's hearing is not otherwise available.
- not using your own professional independent judgment.
- practicing outside of your current areas of clinical competence.
It is apparent that cases of negligence differ from those characterized by intentional misconduct. In fact, in many instances, negligent clinicians may actually be trying to serve what they believe is in the best interests of their clients, but in doing so may inadvertently not abide by their ethical responsibilities.
Now that we have reviewed unethical activities by reference to civil torts, it seems that the very fact of characterizing them as intentional or negligent helps us to address the occurrence of misconduct both before it happens and afterwards.
Because of the nature of the conduct itself, you could argue that individuals who engage in intentional misconduct do so because their self-serving needs trump their wish to hold paramount the welfare of those they serve. But, how do we address the problem presented by these individuals, especially since we cannot identify who they are before they engage in misconduct? We can consider the following:
- Individuals who have no qualms about engaging in intentional misconduct may have no concern for those they serve, but they are concerned about their own welfare. We can use this self-interest to our advantage by making efforts to alert them of the consequences of unethical conduct. Because ASHA publishes notices of ethics violations and sanctions (except for private reprimands), the very knowledge that the Association enforces its Code of Ethics may be sufficient to give some of them sufficient pause before they do anything that may subject them to a similar fate.
- We must encourage individuals to file complaints against these practitioners, and when complaints are filed we must strictly and zealously enforce our Code of Ethics and state licensure statutes and regulations.
- We need to share reports of disciplinary actions with other regulatory entities, and employers need to "vet" new professional staff when hired and periodically during their employment. This will help prevent the type of situation where an audiologist or speech-language pathologist engages in unethical conduct, is sanctioned, and then simply moves on to continue the same misconduct in another state or with another employer.
- In essence, in these types of cases, enforcement is the first line of defense. Appealing to the better nature of these individuals, or to a higher sense of purpose, will likely be insufficient to curb their behavior.
What about that group of individuals who may engage in negligent misconduct? Is enforcement the major remedy here too, or can we be more proactive and actually have a good chance to prevent the misconduct from occurring in the first place? In the case of potential negligent conduct, we should acknowledge that here we have a group of individuals that includes, potentially, all of us. Because any of us could get caught up in an argument on a cell phone while driving and have an accident, we could also inadvertently, and unintentionally, find ourselves engaging in professional activities that represent violations of ethical standards. Therefore, our goal for these individuals is to increase their sensitivity to ethics and ethical standards so their responsibilities are always in the forefront of their conscious awareness.
Some things to consider are
- Infuse ethics education in all academic coursework, student clinical practicum experiences, and in the work setting. Ethics education breathes life into the Code of Ethics and grounds it in our everyday professional activities.
- Offer ethics resources targeted to various clinical settings(e.g. ASHA Board of Ethics Issues in Ethics Statements).
- Make available resources for confidential ethics counseling and guidance (e.g. ASHA's Director of Ethics for ASHA members and certificate holders).
- Educate individuals in the use of ethical decision-making models.
- Encourage and support your professional association's ethics committees and the work of your state licensure boards.
- Offer continuing education activities in ethics.
- And lastly, enforcement is a tool, too, but its role is different in circumstances where negligent conduct is a factor. Consider, hypothetically, two individuals who have engaged in essentially the same professional misconduct, one intentionally and the other negligently. Both would be found in violation of the Code of Ethics, but in our scenario the negligent conduct could be a mitigating factor since it was not intentional and could result in a less harsh sanction being imposed, along with terms and conditions to help ensure that the conduct is less likely to occur in the future.
In summary, characterizing ethics cases using the distinction between intentional and negligence torts provides a wealth of information that is not apparent when evaluating cases of professional misconduct simply by describing how "bad," or egregious, they are or what specific rules of the Code of Ethics were violated.