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Legal, Clinical, and Ethical Implications of Legalized Marijuana

19 May

By Stephen Behnke, JD, PhD, MDiv, from Ethics & Risk Management: Expert Tips VII

Implications of Legalized MarijuanaRecently the APA Ethics Office was approached with a question: What implications does the legalization of marijuana in two jurisdictions have on psychology ethics? The question has no immediate or obvious answer.

Issues will undoubtedly emerge over time as psychologists work within these jurisdictions and between jurisdictions that have different legal approaches to the use of marijuana. Nonetheless, the question offers an opportunity to begin thinking about the implications of evolving jurisdictional laws that govern the use of substances.

A useful framework is to consider the question from three closely related perspectives: legal, clinical and ethical. This analysis first isolates a specific kind of question, and then examines how the different kinds of questions interact. Thus, the analysis offers a two-step process.

From the perspective of the Ethical Principles of Psychologists and Code of Conduct (2002, amended 2010), a central standard is 2.01(a), Boundaries of Competence: “(a) Psychologists provide services, teach and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study or professional experience.”

The issue raised by standard 2.01(a) is whether it is within the boundaries of the treating psychologist’s competence to work with an individual who is using this particular substance. From the perspective of the Ethics Code, there is no distinction among substances – for example between marijuana and alcohol.

The psychologist must have the appropriate knowledge and skill to treat an individual with the particular individual’s pattern of use or gain the requisite knowledge and skills in the ways that standard 2.01(a) identifies. For this reason, there is an inextricable nexus between the ethical and the clinical, insofar as the Ethics Code says that the psychologist must have the appropriate clinical competence. New laws on the use of a particular substance do not seem directly relevant to this aspect of the analysis.

Ethical standard 2.01(f) may bring in the law in a manner that standard 2.01(a) does not: “(f) When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.”

Standard 2.01(f) places the ethical mandate for competence into forensic contexts. In a forensic context, the legal status of a substance that a client is using may be highly relevant to a forensic assessment.

Consider a psychologist who is conducting a child custody evaluation. Two parents live in separate jurisdictions, one of which has legalized the use of marijuana, the other has not. Both parents use marijuana in similar ways regarding the amount and frequency. The evaluator may find it appropriate to take into consideration that in one jurisdiction, the parent is using a substance that is illegal.

In this scenario, clinical considerations regarding substance use may be less relevant – if relevant at all – in comparison with the legal considerations of a parent who is engaging in an illegal activity. The clinical perspective may enter the analysis when the psychologist poses the question: Why would an individual engage in a behavior that may be directly contrary to that individual’s stated goal, i.e., maximizing access to his or her children? In this instance, the legal, ethical and clinical questions converge.

One can easily imagine other types of assessments where the legal status of an activity could be relevant. Ethical Standard 9.01(a), Bases for Assessments, states: “Psychologists base the opinions contained in their recommendations, reports and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings. (See also Standard 2.04, Bases for Scientific and Professional Judgments.)”

Standard 9.01(a) is not limited to forensic contexts. For certain jobs, knowingly engaging in activities that are illegal can be perceived as a reflection of one’s judgment. This consideration may be especially important for assessing individuals for leadership positions. Again, the legal, ethical and clinical converge, insofar as ethical standard 9.01(a) states that it is appropriate to take the legal status of an activity into consideration when such information substantiates a psychologist’s recommendation, report or diagnostic or evaluative statement. Likewise, evaluations in a criminal context may depend to a substantial degree on whether an individual is abiding by the law or engaging in illegal behaviors.

How the evolving legal status of marijuana will affect psychologists’ work is an interesting and important question that has no immediate or obvious answer. The nuances and contours of the question will necessarily emerge over time, and the APA Ethics Office will follow the issue with interest.

social stigmaOne especially intriguing area will be that of social stigma. Although social attitudes toward marijuana are changing, it is still viewed with suspicion – much more so than is alcohol – by a substantial segment of our society. It will be important to examine how such attitudes “seep” over into evaluations of marijuana use even in jurisdictions where it has been legalized.

Ethical Standard 2.04, Bases for Scientific and Professional Judgments, states: “Psychologists’ work is based upon established scientific and professional knowledge of the discipline. (See also Standards 2.01a, Boundaries of Competence, and 10.01b, Informed Consent to Therapy.)”

Part of the challenge for psychologists in jurisdictions that have recently legalized marijuana will be to examine the extent to which their work – grounded in research, data and clinical experience – is interpreted and applied by decision makers whose attitudes may be influenced by factors that do not have a basis in the “established scientific and professional knowledge of the discipline” of psychology.

When psychologists have a reaction of “Wait, that’s not what I was saying about the research,” they may consider ethical standard 1.01, Misuse of Psychologists’ Work:

“If psychologists learn of misuse or misrepresentation of their work, they take reasonable steps to correct or minimize the misuse or misrepresentation.”

Psychologists may look to the research regarding marijuana to see where and how social attitudes deviate from the data. Although it is much too early to know exactly how evolving marijuana laws will affect the application of the Ethics Code, it is reasonable to assume that ethics educators across jurisdictions will have ample opportunity to think about this interesting ethical question as time goes on.

Ethics and Risk Management: Expert Tips VII is a 3-hour online continuing education (CE/CEU) course that addresses a variety of ethics and risk management topics in psychotherapy practice in the form of 22 archived articles from The National Psychologist and is intended for psychotherapists of all specialties.

Professional Development Resources is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. Professional Development Resources maintains responsibility for all programs and content. Professional Development Resources is also approved by the National Board of Certified Counselors (NBCC); the Association of Social Work Boards (ASWB); the American Occupational Therapy Association (AOTA); the American Speech-Language-Hearing Association (ASHA); the Commission on Dietetic Registration (CDR); the California Board of Behavioral Sciences; the Florida Boards of Social Work, Mental Health Counseling and Marriage and Family Therapy, Psychology & School Psychology, Dietetics & Nutrition, Speech-Language Pathology and Audiology, and Occupational Therapy Practice; theOhio Counselor, Social Worker & MFT Board; the South Carolina Board of Professional Counselors & MFTs; and by theTexas Board of Examiners of Marriage & Family Therapists and State Board of Social Worker Examiners.

 

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