Professional misconduct
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Professional misconduct – malpractice, or deviation from professional codes, guidance on conduct or regulation; or crossing of professional boundaries, establishment of inappropriate relationships; or deviation from professional integrity; typically, in the context of ethical dilemmas and problems[1].
Professional integrity
A simple definition of professional misconduct is a deviation from professional integrity. Professional integrity is defined, on a high level, as conforming to concepts, principles, and behaviors that enforce morals and values. However, there are several approaches to defining the term. Banks suggests in his paper three distinct definitions:
- “Morally good/right conduct, according to accepted professional guidelines/codes of ethics,” i. e. professionalism. This definition relates to the conduct of activities and work roles;
- “Standing for something”/commitment – when professionals commit to values or morals that often go beyond accepted professional guidelines or codes of ethics (they committee to higher standards). Commitment integrity motivates people to act from internal motivations and beliefs that are rooted in their own character;
- “A capacity/moral competence” – a process of evolving once believes, ideals and principles, to promote “sense making” as situations change. “A capacity to respond to change in one’s values or circumstances, a kind of continual remaking of the self, as well as a capacity to balance responsibility for one’s work and thought”[2].
Types of professional misconduct
Andreoli and Lefkowitz identifies three types of professional misconduct:
- Organizational misbehavior (OMB), which defines purposeful antisocial or destructive acts against an organization motivated by greed or retaliation for perceived inequalities,
- Unethical behavior (UB) defines the act of violating generally recognized principles,
- Hostile behavior (HB) defines acts that deviate from customs of conventional behavior[3].
Professional misconduct in the legal profession
The legal profession is often a scapegoat for analyzing the issues relating to professional misconduct. The concept is addressed on two planes in the legal profession: personal risk (professional misconduct by an individual lawyer) and ethical risks at an enterprise level (law firm). Ethical risks in the legal profession arise from various sources, including the following items:
- The object of representation as a source of professional misconduct – lawyers cannot assist clients in crimes or fraud. Lawyers must withdraw from representing individuals or entities that they know engage or plan to engage in criminal activity.
- Confidentiality and professional secrecy standard as a source of professional misconduct – this relates to the attorney–client privilege (protection of communication), product immunity (protection of documentation), and other. There are certain special situations that exempt the legal profession from this fundamental standard, but those are limited.
- The conduct of others as a source of professional misconduct – lawyers are responsible for the actions of others (employees, customers, others) and have an obligation to report misconduct that they become aware of. A failure to report in itself constitutes misconduct. Lawyers are also obligated to self-report own misconduct[4].
Examples of Professional misconduct
- Sexual misconduct with a client or patient: Engaging in a sexual or romantic relationship with a client or patient, which is a violation of professional ethics and a breach of trust.
- Falsification of records: Falsifying any type of medical, legal, financial, or other records, including billing records.
- Unauthorized practice: Practicing in a field or profession in which one is not licensed or qualified.
- Unprofessional behavior: Behaving inappropriately or unethically in the workplace, such as using profanity, making rude or demeaning remarks, or engaging in bullying behavior.
- Conflict of interest: Acting in a manner that puts one's own interests ahead of those of a client or patient, or taking any action that could be perceived as benefiting oneself rather than the client or patient.
- Fraud or deception: Making false or misleading statements or misrepresentations, or engaging in any type of fraudulent activity.
- Breach of confidentiality: Revealing confidential information about a client or patient without their consent.
- Abuse of power: Misusing one's authority or power for personal gain.
- Unethical prescribing: Prescribing medications that are not medically necessary, not in the best interests of the patient, or not in accordance with professional standards.
Limitations of Professional misconduct
- Professional misconduct may be difficult to define and is often open to interpretation. It is typically based on the ethical codes and standards of a particular profession which may be difficult to understand and apply in certain situations.
- Professional misconduct can be difficult to prove as it may involve a range of behaviors, from an unethical decision to an intentional act of dishonesty. This makes it difficult to identify and investigate, as well as to build a case against the individual.
- Professional misconduct can also be subjective and dependent on the values and beliefs of the person or organization making the decision. This may lead to discrepancies in decisions and the potential for bias.
- Professional misconduct can have serious consequences for individuals, organizations, and the profession as a whole. It can lead to disciplinary action, loss of professional credibility, and even loss of license or certification. It can also lead to legal action and criminal charges in some cases.
In relation to professional misconduct, there are a number of approaches that can be taken to address and respond to the issue. These approaches include:
- Establishing a clear code of conduct: Establishing a clear code of conduct that clearly outlines the expectations and standards of behaviour expected from professionals is an important step in addressing professional misconduct.
- Professional training: Professional training and development programs can help to ensure that employees are aware of the appropriate professional conduct expected of them and equip them with the skills to act with integrity in their roles.
- Establishing appropriate supervision and oversight: Establishing appropriate supervision, oversight and monitoring systems can help to ensure that any inappropriate behaviour is quickly identified and addressed.
- Encouraging a culture of accountability: Encouraging a culture of accountability amongst professionals through appropriate incentives and sanctions can help to ensure that inappropriate behaviour is discouraged.
- Implementing disciplinary action: When misconduct is identified, implementing appropriate disciplinary action can help to ensure that the individual responsible for the misconduct is held accountable for their actions.
In summary, a number of approaches can be taken to address and respond to professional misconduct, including establishing a clear code of conduct, providing professional training, implementing appropriate supervision and oversight, encouraging a culture of accountability, and implementing disciplinary action.
References
- Nersessian, D. (2011). Ethical and practical challenges for corporate lawyers advising clients on human rights, Proceedings of the Annual Meeting, Vol. 105, p. 295-298. Introduction, p. 295-297.
- Banks, S. (2010). Integrity in Professional Life: Issues of Conduct, Commitment, and Capacity, The British Journal of Social Work, Vol. 40, No. 7, p. 2168-2184. Introduction, What is professional integrity?, 1-4.
- Andreoli, N., Lefkowitz, J. (2009). Individual and Organizational Antecedents of Misconduct in Organizations, Journal of Business Ethics, Vol. 85, No. 3, p. 309-332. Defining organizational misconduct, p. 310.
Footnotes
Author: Kamila Wronkowska
