Does the AOTA Ethics Commission Understand the Task Before It?

Published Oct 21, 2014 printer-friendly

The task entrusted to the AOTA Ethics Commission is the creation of a Regulatory Code of Ethics, not an Aspirational one. To understand the difference between these two kinds of codes of ethics, we can look to The Reference Guide to the Code of Ethics, one published in 2008, and the other published in 2010 (see footnotes). In these guide books, a Regulatory Code of Ethics is said to:

“spell[] out the expected behavior, state guidelines of expected conduct, and give specific descriptions of sanctions for failure to follow the code” (2010, p. 50; 2008, p. 113) (emphasis added).

An Aspirational Code, on the other hand:

“encourage[s] competent and moral behavior, but does not provide guidelines for ethical conduct or sanctions for failure to follow the intent of the code” (2010, p. 50; 2008, p. 113).

The fundamental feature distinguishing these two types of codes then is whether there is a system for punishing behavior listed in the code; that is what would make it a Regulatory Code versus an Aspirational Code. The AOTA Code of Ethics involves a system for punishing violations of the Code in the document titled Enforcement Procedures for the Occupational Therapy Code of Ethics and Standards. The document explains the following punishments that could apply to those who violate the Code of Ethics: reprimand, censure, probation, suspension and permanent revocation of one’s AOTA membership. We should note that the Code of Ethics and its Enforcement Procedures are part of an AOTA member’s contract with the organization: all members agree to be held to the jurisdiction of the Code of Ethics and the punishments determined by the Enforcement Procedures.

What this means is that in its conceptual and legal structure, the AOTA Code of Ethics constitutes a Regulatory Code of Ethics.

Statements in the References Guides and elsewhere have created doubt as to whether the task before the Ethics Commission is clearly understood. These statements can be traced as early as the 2008 Reference Guide to the Code of Ethics. There it is said in Chapter 20 that:

“The AOTA code is an aspirational guide to appropriate behavior but cannot substitute for a position description or contract” (2008, p. 115).

The 2010 Reference Guide removed this reference to an “aspirational guide” and said instead that “The Code and Ethics Standards delineate expected ethical behaviors . . .” (p. 51).

The 2010 Reference Guide, however, retained the following problematic statement:

“AOTA’s Ethics Commission has described the Occupational Therapy Code of Ethics and Ethics Standards (2010) as aspirational” (2008, p. 114; 2010, p. 50).

It may be that AOTA’s Ethics Commission has described it as aspirational, but that description is factually incorrect. The sentence that follows the one above reveals another confusion:

“The Code is complimented by the Enforcement Procedures to the Occupational Therapy Code of Ethics, which offers members and the public the regulatory component to support the Code” (2008, p. 114; 2010, p. 50).

Here the confusion becomes apparent with the euphemism that the Code is “complemented” by the Enforcement Procedures. The Enforcement Procedures do not complement an Aspirational Code, but transform it into a Regulatory Code. And this is true regardless of intent. The issue of intent is important because of the following statement in the Reference Guide:

“Although the AOTA Enforcement Procedures are regulatory, primary reliance on regulatory action to enforce the Code does not meet the intent and spirit of the Code” (2008, p. 114; 2010, p. 50).

The spirit and intent of the Ethics Commission does not matter when it contradicts the reality that it is a Regulatory Code that is being created. This is especially so considering the special ethical obligation entailed in creating a Regulatory Code. That special obligation is that those under the jurisdiction of a Regulatory Code must understand how to comply with it. While an Aspirational Code can be imprecise and sloppy regarding what is expected because it carries no penalties for violations, a Regulatory Code cannot. Those who must enforce a Regulatory Code and those who must comply with it must know what behavior is required and what behavior is forbidden.

I think that it is the failure to keep the Regulatory nature of the Code of Ethics in the forefront that led to the poor drafting of the Code and the poor public defenses and explanations of the Code’s social justice requirement. Specifically, subsection D of the 2010 Code's social justice requirement states that occupational therapy personnel are required to “encourage” others to “abide by the highest standards of social justice.” But we must ask, what exactly is it that members are supposed to encourage others to do; that is unclear because the phrase “the highest standards of social justice” has never been explained by the Ethics Commission.

During the Ethics Commission’s presentation at the 2013 AOTA conference in San Diego, two AOTA members asked how the social justice requirement could be violated. Neither member received a responsive answer. Then, in February of 2014, I sent the Ethics Chair an email asking for an explanation of the requirement to “encourage” others to “abide by the highest standards of social justice.” I never received a response to that email. When a new Ethics Chair was named in July, I resubmitted my questions. The responses, however, did not answer the question. Surprisingly, one of the explanations for the failure to give a precise answer was that the Ethics Chair would need to know the context of the ethics violation. But the question was of compliance. Compliance is logically and temporally antecedent to violation. If one knows how to comply with a rule, one can avoid a violation of it. And so what made the response surprising is that the Ethics Chair was one of the authors of the Code, and was now the person in charge of enforcing it. When one co-authors a code of ethics and is in charge of the body that enforces it, it is reasonable to expect an explanation regarding compliance.

To date, five years after the Representative Assembly approved the Code of Ethics, no one can explain how a member is to comply with the social justice requirement. That is, no one can say what an AOTA member is supposed to encourage others to do so that they can "abide by the highest standards of social justice." But, if it was understood at the outset that the AOTA Code of Ethics is a Regulatory Code, and this special obligation was kept in the forefront of one’s mind through the drafting of the Code, I believe answers regarding compliance would be readily available to those who authored the document.

Endnotes

The 2008 book is titled Reference Guide to the Occupational Therapy Ethics Standards and the 2010 book is titled Reference Guide to the Occupational Therapy Code of Ethics and Ethics Standards.

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