We have to carefully consider which clients need our special consideration when they refuse treatment. Whatever approach the ethical reasoning about a certain case takes, it is important to keep the following elements in mind: the central ethical concepts, the pertinent ethical codes of conduct for HCPs and the relevant laws of the country.
Autonomy
Ethical codes are based on a ‘common morality’ that includes four major ethical principles in biomedical ethics: respect for autonomy, beneficence, non-maleficence and justice. Beauchamp and Childress (2001: 58) describe the autonomous person as having the capacities of ‘self-governance’, such as understanding, reasoning,
The ethical challenges of a student counselling professional: When is discretion permissible?
99
deliberating, and independent choosing. Those authors declare that the minimum definition of personal autonomy is ‘self-rule that is free from both controlling interference by others, and from limitations, such as adequate understanding, that prevent meaningful choice’ (2001: 58). Most theories relating to autonomy agree that two conditions are essential for autonomy: liberty, that is (i) the independence from controlling influences and (ii) agency, which is the capacity for intentional actions (2001: 58). This means that a person’s right to hold views, make choices and take actions based on personal values and beliefs should be respected and acknowledged (Beauchamp & Childress 2001: 63). Religious beliefs or cultural convictions regarding therapy should therefore be respected. A person’s autonomy is diminished, according to these authors, if they are controlled by others in some way or otherwise incapable of acting according to their own choice, desire or plan (2001: 58).
It is important to note that being autonomous and making an autonomous choice is not the same as being respected as an autonomous agent. Beauchamp and Childress reason that autonomous agents can sometimes fail in the act of
‘self-governance’. This usually has to do with illness, psychiatric conditions such as depression, ignorance, coercion or other conditions that limit their options (2001: 58). Students who refuse treatment may therefore fail to make autonomous choices due to some of these factors.
The concept of consent is another important aspect of autonomy. Eyler and Jeste (2006: 554) state that in order for consent to be valid, it should be fully informed, given voluntarily and by a person with adequate ability to make the decision at hand. Allan (2001) explicates the essential elements of informed consent in terms of the decision maker as follows: he must have adequate information to make the decision, must understand the information on a cognitive level, must appreciate the situation and the consequences of the decision at an emotional level, must have the ability to make a rational decision, which decision must be free and voluntary and s/he must be able to communicate the decision (2001: 31).
Why do we need the consent of the client? According to Beauchamp and Childress, informed consent is a way to minimize the potential for harm, reduce risk, avoid unfairness and exploitation and of course, protect autonomous choice (2001: 77). Some students may be opposed to or do not see the need for treatment, in spite of what the referring agent thinks. They may have been inadequately informed, may not appreciate their situation or fully understand the options open to them, and may change their minds. Certainly however, some may remain convinced that undue pressure and influence have forced them into the therapy room, and that they do not belong there.
Competence is another concept to bear in mind when deliberating about aspects of autonomy. Competence is a complex concept with the basic meaning referring
to the ability to perform a task. According to Beauchamp and Childress, standards of competence require certain mental skills (an understanding), certain abilities to comprehend and process information and to reason about the consequences of actions (2001: 72). Allan reminds us that legally competent adults, who have a right to make decisions regarding treatment, also have the right to refuse treatment (2001: 30). He alerts us to the difference between good therapeutic practice on one hand and coercion on the other. Coercion is never acceptable. Adshead and Sarkar mention that there still is the idea that clients diagnosed with any major psychiatric disorder abolish the capacity to make rational decisions. They refer to research demonstrating that patients with mental illness retain the capacity to make complex medical decisions, such as treatment options and participation in research (2005: 1012b). In the United States of America, legal decisions have supported the rights of patients with severe mental illness to refuse treatment, even if it had negative outcomes for them (Adshead and Sarkar 2005: 1012b).
The Mental Health Care Act provides for the management of clients who do not consent to treatment, but who are deemed to be in need of treatment. The provisions for such circumstances are described in the act (Mental Health Care Act, 2002 III:
9). In certain circumstances there are legal grounds for intervention. Allan (2008:
104) argues that involuntary detention and compulsory treatment violate people’s fundamental rights to liberty and autonomy. He continues to explain that the state justifies these actions on the grounds that it has a duty to protect members of the public as well as a right and a duty to act in the best interest of people who are deemed to be incapable of looking after themselves. Allan alerts us to two additional criteria to those mentioned already, namely that the person must refuse treatment or must be incapable of giving consent to treatment and committal must be the least intrusive way of dealing with the person (2008: 104).
When deliberating on practitioners and students registered with the HPCSA, legal aspects need to be kept in mind. The Health Professions Act makes provision for the HPCSA to investigate and regulate students and practitioners defined by the Act as being impaired. The Act defines impairment as a ‘condition which renders a practitioner incapable of practicing as a professional with reasonable skill and safety’. The Act furthermore contains clear directives to report impairment in oneself or in another, (student or practitioner) suspected of impairment or unprofessional, illegal or unethical conduct.
It is useful to differentiate on a conceptual level between impairment, incompetence and unethical behaviour. These are suggested to be related, but not identical, concepts. Describing medical practitioners, Morreim (1993: 19-27) in a Hastings Centre Report proposes the following definitions: The impaired physician is defined as unable to practice medicine with reasonable skill and
The ethical challenges of a student counselling professional: When is discretion permissible?
101
safety, because of physical or mental illness (such as waning eyesight, dementia and substance abuse). The unethical physician knowingly and willingly violates fundamental norms of conduct towards others, especially his or her own patients.
The incompetent physician is not ill but lacks appropriate skills and is ignorant.
This seems to be a very useful demarcation of concepts and particularly so because it illuminates to a large extent the strategy needed to manage the healthcare practitioner involved.
While keeping concepts related to autonomy in mind, it becomes apparent that it cannot be the only thing to say about the matter of treatment refusal. What grounds do we have to consider treatment at all, when it is not wanted?
Beneficence
According to Beauchamp and Childress the term beneficence implies that we should act in people’s best interests and treat people with welfare (2001: 65). They state that one of the biggest debates in biomedical ethics is whether respect for autonomy should have priority over professional beneficence (2001: 176).
Sometimes the therapist may see that there are avenues of action that will be to the client’s therapeutic benefit, even though this may clash with aspects of autonomy, such as choice, disclosure of information, confidentiality and privacy.
Adshead and Sarkar identify paternalism as an ‘important and sometimes necessary’ part of the duty of beneficence (2005: 1011b). They mention that the doctor’s duty of beneficence traditionally trumped patients’ right to make choices for themselves (2005: 1012a). Because a HCP has superior training, knowledge and insight in certain fields and regarding matters of (mental) health, it may lead to the client being subjected to the position of the ignorant and fearful ‘child’
(Beauchamp & Childress 2001: 178). Then beneficence can lead to paternalism.
The origin of the word suggests the way in which a father will act, presumably towards his children or those in his care. Students are generally young and inexperienced, which makes it so much easier for therapists to be paternalistic in their beneficence. The danger exists that when a student refuses treatment, a HCP may put across courses of action thought to be in the client’s best interest, without fully exploring the client’s views.
Beauchamp and Childress explain that if a person’s known preferences are ignored and action is justified merely by the goal of benefitting or avoiding harm, we are dealing with paternalism (2001: 178). Strong paternalism is when interventions are geared toward benefitting a client who is engaging in risky choices, even though there may be autonomy, voluntariness and information.
Weak paternalism protects clients against mostly non-autonomous actions – such as in the cases of severe depression, drug dependency or where there is not enough
information and actions in ‘the best interest’ is necessary (2001: 180).
Beneficence further extends into obligations to assess risks in the case of suicidal and homicidal threats. Paternalism has been the primary justification to intervene in the cases of suicide prevention (Beauchamp and Childress 2001:
188). HCPs may also have duties to warn potential victims if clients make threats against them. Under these circumstances the confidentiality can be broken for the sake of the common good. Gavaghan describes the many difficult aspects of breaking confidentiality in this way, such as the nature of the threat, whether the intended victims are identifiable, a general warning to a group, and the difficulties in accurately predicting the potential for harm (2007: 113-130).
Third parties
Powerful third parties may take a strong paternalistic stance toward clients. A university certainly has legitimate duties toward and claims on student behaviour and conduct. It is, however, my position that universities and agents of a university should not be surrogate parents that can take over decision making for students.
Universities do however have rules of conduct to which students and staff must comply. As such, pressure to change behaviour or face disciplinary action and even exclusion from an institution, may be exerted. In the case of an institution however, the utilitarian argument that the behaviour of one student must be weighed against the bigger need and benefit of all, usually prevails. This may be particularly true for students residing on university property. When students are referred on recommendation of a disciplinary board or hearing, treatment refusal is often not an option. The role and function of the HCP will be different than when a student voluntarily seeks treatment.
Other predicaments arise when the student counsellor, as a university employee, must choose between moral duties to the employer and moral duties toward the client. Third parties may attempt to dictate to the therapist and/or the client regarding therapy engagement and process. Clinical judgement and practice may be undermined. Third party pressures can convince therapists that they should proceed in a way that may not be in accordance with what the client truly wishes or not even in the best interests of the client. Callender reminds us that with many clients who present for psychotherapy, the problems originated in the experience of having been used as a means to someone else’s ends in the first place (1998:
275). The very process of psychotherapy cannot be seen to reinforce this dynamic.
The misuse of therapeutic power and strong paternalistic views are the mainstay of many ethical problems and even complaints against HCPs.
There may therefore be tension between the obligations towards clients and perceived obligations to an institution, a family, or even a society at large. This
The ethical challenges of a student counselling professional: When is discretion permissible?
103
may result in a conflict of loyalties for the therapist, or the double agent dilemma, also known as double agency or dual roles (Chodoff 1996: 299). Roberson and Walter describe this as ‘the dilemma of conflicting expectations or responsibilities, between the therapeutic relationship on the one hand and the interests of third parties on the other’ (2008: 229a). They suggest that HCPs (psychiatrists, in their study) adjust to changing times and find an ethically defensible way to manage third party interests, as it is a strong and lasting phenomenon in modern health care (2008 :234).
The strong paternalistic stance of a third party which may very well be based on beneficence must therefore not be confused with the beneficent duty the therapist owes towards a client. Therapists should have the client’s best interest at heart, not that of the third party. The relationship between the client and the therapist is different from the relationship between the institution and the student/client.
Therapist-client relationships are seen as ‘fiduciary’, mutual or equitable (Adshead
& Sarkar 2005: 1012a), implying that the relationship is based on trust. However, that is not to say that we do not owe duties towards the university as an employer. As Rachels explain, there are however different duties, associated with different virtues (2003: 181). The relationship with a client is different and in a sense more unique than the relationship with an employer. Furthermore, if the trust and fiduciary relationship is perceived to be disregarded by clients, in this case the student population, it is possible that future clients will refrain from seeking help or from divulging important information (Freeman et al. 2004: 166). As such, neither the institution, nor the client, or even potential clients, benefit in the long run.