What led to the review of the Rules and Procedures of the Ethics Committee (the “Rules”)?
As one of the first steps arising out of the APA's Independent Review (also known as the Hoffman Report), APA established the APA Commission on Ethics Processes (the “Commission”) consisting of 17 psychologists and non-psychologists with ethics expertise. The purpose of the Commission was to examine APA's ethics processes and recommend changes.
Several of the 12 specific recommendations of the Commission contained in their Report of the APA Commission on Ethics Processesopens in new window (PDF, 330KB) (“the Commission Report”) related to APA engaging in an in-depth review of APA's adjudication process. This included suggestions, among others, to reform its complexity, consider the need and purpose of the three types of cases (complainant, show cause and sua sponte), review the threshold for opening complaints and better address complainant expectations, and restructure the relationship between the Ethics Office and Committee. (Commission Report, 2017, pp. 11-18)opens in new window (PDF, 330KB).
While the report included many recommendations and differing possibilities for reform, it specifically included as possibilities “rethink[ing] current need and purpose for adjudication for each of 3 current types of cases” and “reducing or eliminating some categories (but not all) of adjudication (e.g., matters with other avenues for resolution such as complaints that can be filed with licensing boards).” (Commission Report, 2017, p. 15)opens in new window (PDF, 330KB).
Who made the decision to simplify the Rules?
APA's Bylaws specifically authorize the Ethics Committee to formulate its rules and procedures governing the disciplinary process for approval by the APA Board of Directors acting on behalf of the APA Council of Representatives. A Board of Directors' subcommittee, joined by additional Board members interested in the issues, and the Ethics Committee collaborated in considering changes to the Rules. Draft revised Rules were included in an agenda item for the Board agenda, made available to the APA Council, and voted on by the full Board of Directors during an open session at the June 2018 Board meeting.
What information was considered in making the decision to simplify the Rules?
The Ethics Committee and the Board Subcommittee studied in-depth the recommendations regarding adjudication in the Report of the APA Commission on Ethics Processes and engaged in an in-depth review of APA's adjudication program. This included significant review of multiple materials, including Ethics Committee and Office workload statistics, information about alternative venues for ethics complaints, and adjudication data. There was also extensive consultation with two outside counsel to benchmark the best practices from other organizations and to simplify without increasing (and in fact decreasing) legal risk. This study was undertaken prior to making the changes to the Rules.
In what ways was the existing APA complaint process limited?
Other forums have greater ability to fully investigate complaints. The Ethics Committee process is a "paper review" process with limitations in gathering documentation to make informed decisions. The Ethics Committee does not have subpoena power and relies on review of documents submitted by the complainant, the respondent and any relevant stakeholder forum (usually licensing boards for complaints involving licensed psychologists). Requirements for HIPAA releases will further limit the Committee's ability to review complaints.
It is also important to understand that any action taken by the Committee only impacts an individual's membership. For example, aside from an educative letter, the Committee can only recommend that a member be reprimanded, censured, offered a stipulated resignation or be expelled from APA membership. This is often not the actions the complainant is seeking. (The Ethics Committee does not have jurisdiction over non-members, international affiliates, or most students.)
How was the “Show Cause” process changed?
The well-functioning "Show Cause" adjudication process has proven useful in allowing the Committee to review the unethical behavior of members. That process was expanded beyond a list of serious actions being taken against a member's license by a licensing board, state psychological association, or due to the conviction of a felony. Under the new Rules, APA can take action based on disciplinary actions by other, non-licensing board entities (such as a governmental body, faculty grievance committee, or civil or criminal court) if APA can obtain a record showing the adverse action, the expellable behavior, and that the proceedings afforded the psychologist due process. All licensing board actions that significantly limit the member's license can also be the basis for a show cause case.
Why were complaints limited under the new Rules?
Virtually all complaints filed with APA are filed against licensed members. Half or more of the complainants have also filed with a licensing board. In October 2017, in response to the Commission Report, the Committee adopted a “more eyes” policy to include an additional Committee member beyond the Chair in review of complaints to determine if a preliminary investigation or a case should be opened, or alternatively the complaint should be closed. To date, the policy has not resulted in additional cases being opened after a substantive review.
The Committee felt the effort spent reviewing complaints, which were often also initially reviewed by a licensing board and determined to not merit an action against the psychologist's license, and which ultimately resulted in very few sanctions by APA, could better be utilized for education and consultation to support the ethical behavior of psychologists. One of the 12 recommendations of the Commission was that APA “prioritize ethical outreach and education for its members.” (Commission Report, 2017, p.10)opens in new window (PDF, 330KB).
If a complainant's complaint with a licensing board regarding expellable behavior leads to any serious action against an APA member's license, the Ethics Committee now can also act under the show cause process.
What about complainants that have no other forum to have their complaint against an APA member psychologist reviewed? Will the APA continue to help complainants?
Importantly, a protective stopgap was included allowing the Committee to review serious complaints alleging expellable behavior (for example, sexual misconduct, insurance fraud, plagiarism) that would otherwise have no avenue for review.
Additionally, any individuals contacting APA wishing to file a complaint will be provided information on other potential forums having a greater ability to review the complaint in depth and provide the types of resolution complainants are seeking.
In what other ways were the Rules changed?
The Rules and Procedures were simplified and are now shorter, less legalistic and more easily understood. Timelines were made more consistent and, in some cases, shorter. The shift to less complex Rules will assist in the “rebalancing” of staff-Committee relations and expertise. The new Rules refocus the adjudication program on matters leading to review by the full Ethics Committee and involve the Committee more centrally in the adjudication work of the Ethics Office. This was a significant concern of the Commission.
The Ethics Committee saw the changes as a more efficient use of its, and the Ethics Office's, resources which will free up capacity to expand ethics education and consultation services directed to APA members as recommended by the Commission.