Abstract. Keywords: HPCSA Ethical Code of Conduct. Employment Equity Act. Professional, Legal and Ethical Conduct. Psychologists.

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1 The Role Played by the Health Professions of South Africa (HPCSA) Ethical Code of Conduct and the Employment Equity Act (EEA) in Regulating Professional, Legal and Ethical Conduct of Psychologists in South Africa Hillary Tomu Department of Industrial Psychology, University of Fort Hare, King William s Town Road, P.Bag, X1314, Alice, 5700, South Africa hillatom@yahoo.co.uk Abstract Unethical form of behaviour by Psychologists has of recent increased due to ignorance and a weak regulation system. Many forms of unethical behaviour by Psychologists have been brought to the attention of Board of Psychology recently. The Health Professions Council of South Africa is tasked with the duty of ensuring that Psychologists adhere to the highest standard of ethical and professional best practices. An ethical code of conduct for Psychologists was introduced in order to guide Psychologists in their professional and scientific duties. Furthermore, to ensure that the use of psychometric assessments is regulated by law, an Employment Equity Act was introduced. The main purpose of the Act is to ensure that psychometric tests used and interpreted by Psychologists, are applied fairly to all groups and are used in an unbiased manner resulting in valid and reliable outcomes. Therefore, the paper seeks to determine the role played by the Health Professions of South Africa (HPCSA) Ethical Code of Conduct and the Employment Equity Act (EEA) in regulating professional, legal and ethical conduct for Psychologists in South Africa. Keywords: HPCSA Ethical Code of Conduct. Employment Equity Act. Professional, Legal and Ethical Conduct. Psychologists Introduction A psychologist shall develop, maintain and encourage high standards of professional competence to ensure that clients are protected from professional practises that fall short of international best practises. Furthermore, a psychologist shall be accountable for professional actions in all domains in his or her professional life (Health Professions Act, 1974). A Psychologist is a trained professional whose professional actions are regulated and controlled by the Healthy Professions Council of South Africa (HPCSA) Ethics Code of Conduct and the Employment Equity Act (EEA). The HPCSA code of conduct and the EEA work together in regulating the ethical conduct of a psychologist. 59

2 The HPCSA Code of conduct complements the professional codes and laws regulating test use and employment conditions, and it assumes that tests being used are compliant with it. The primary South African legislation governing occupational assessment is the Employment Equity Act (EEA) (no. 55 of 1998), which has the dual objective of ensuring that only valid and reliable assessments are used and that assessments are used in a fair manner that is free from bias (Society for Industrial and Organisational Psychology of South Africa (SIOPSA) 2006). By adhering to the ethics code and the EEA, it ensures that psychologists conduct their professional and scientific duties in an ethical manner. Psychologists make use of psychometric tests/assessments measures that tap the psychological characteristics of individuals with the main purpose of making decisions about people. Therefore assessment measures are valuable tools that aid decision making. This calls for a Psychologist who has received enough training to use the Psychological tests in a proper and responsible manner. According to Foxcroft and Roodt (2009), the item content of some psychological assessment measures might tap into very personal information. This might cause psychological trauma to the individual being assessed if a professionally trained and caring professional in the form of a psychologist is not at hand to work through any traumatic reaction during the course of the assessment. The HPCSA ethics code therefore endorses that only appropriately trained professionals must control and use psychological tests. According to the HPCSA ethics code of conduct (2006), a psychologist must maintain up to date competency in his or her areas of practise through continued professional development, consultation and other procedures in conformity with current standards. To achieve these outcomes it is assumed that the Psychologist has the necessary competence including knowledge and understanding of psychological tests and other assessment procedures that inform and underpin this (SIOPSA) 2006). Such knowledge will ensure that psychometric tests are conducted appropriately, professionally and ethically, with due regard to the needs, dignity, rights of individuals involved in testing, and the reasons for the assessment. The HPCSA ethics code and the EEA play a big role in psychometric assessment because it guides and directs an assessment practitioner s/psychologist daily professional activities. The provisions of the EEA and the code should be internalised and become part of practice for Psychologists. Organisations that use assessment/psychological tools should formulate policies that are guided by the EEA and the ethics code. Failure to abide by the EEA and the code is a violation of legal and ethical rules respectively. Since the EEA and the code have a big role in regulating the ethical conduct of Psychologists, it should therefore be applied in all assessment activities all the time. The code and the EEA not only guide and regulate psychologists conduct, but also directs all assessment practitioners, intern psychologist and other users of psychological tests under the supervision of psychologists to practise and conduct assessment in a fair and unbiased way. 60

3 Employment Equity Act (EEA) Since the apartheid era, the South African labour legislation has entered a new transition. The need for psychometric assessments that are valid, reliable, fair and unbiased towards any group saw the introduction of the Employment Equity Act. According to Eckstein (1998), the Employment Equity Act highlights the importance of the validation of any instruments to be used for assessment and selection purposes. This idea is further supported by the HPCSA ethics code which states that, Psychologists who performs interventions or administers, score, interpret or use assessment methods shall be familiar with the reliability, validation and related standardisation or outcome studies and proper applications and uses of the methods they use and recognise limits to the certainty with which diagnoses, findings or predictions can be made about individuals, especially where linguistic, cultural and socio-economic variance exists. According to Roodt (1998), one of the purposes of the Act is to ensure that psychometric tests are used in an un-biased manner, resulting in fairness. According to the Employment Equity Act No 55 (1998), Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used; Has been scientifically shown to be valid and reliable. Can be applied fairly to employees. Is not biased against an employee or group. Apparently it is compulsory for psychologists to use assessment tools/tests in line with the provisions of the EEA. It is important to remember that a measure is only valid for the particular purpose for which it was designed. When a measure is used in a different way, the validity must be determined for the context in which it is to be used (Foxcroft and Roodt, 2009). For instance the Differential Aptitude test (DAT L) was designed to measure the ability of Grade 12 learners. It suits very well with adults who passed grade 12 and who are within the normal range of intellectual functioning. However, if it is used to measure the ability level of pupils in grade 9, the results are invalid. When interpreting assessment results, it is important to establish the construct validity of the measure for a particular purpose, otherwise the results may be invalid (Foxcroft and Roodt, 2009). The Employment Equity Act (EEA) further provides a platform for promoting equal opportunities in the workplace by eliminating unfair discrimination. Psychologists form part of the workforce and they use psychological tests in recruitment and selection, organisational development, training and development. The EEA calls for Psychologist not to discriminate against an employee in any form of employment practise. According to the EEA, no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. However, the EEA accepts discrimination in certain circumstances. It is permissible to discriminate with the main 61

4 purpose of promoting affirmative action amongst previously disadvantaged employees such as blacks, women coloureds and to a lesser extend Indians. In addition it is not illegal to distinguish, exclude and prefer any person on the basis of an inherent requirement of a job. Depending on the type and nature of the job, some organisations require candidates to go through the process of medical and HIV testing. However, Medical and HIV testing of an employee is prohibited by the EEA. Medical testing can only be carried out if the testing is permitted by the legislation. Furthermore, testing can be done when it is justifiable in the light of medical facts, employment conditions, social policy and the fair distribution of employee benefits or the inherent requirements of the job. The EEA further prohibits HIV testing of any employee. The testing of any employee to determine HIV status is prohibited unless such testing is determined justifiable by the Labour court. The Code of Good Practise on HIV/AIDS (2000) asserts that HIV/AIDS is still a disease surrounded by ignorance, prejudice, discrimination and stigma. In the workplace unfair discrimination against people living with HIV and AIDS has been perpetuated through practises such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employment benefits. Psychologists as professionals, who are responsible for employees welfare, employee selection, determination of an employee s suitability for employment and promotion, should always abide to the provisions of the EEA on medical and HIV testing. A case law of Hoffmann vs SA Airways provides a dimension on the issue of HIV testing in the workplace. Hoffmann had undergone a blood test as part of pre-employment testing and it had shown that he was HIV positive. As a result, the medical report read that Hoffmann was H.I.V. positive and therefore unsuitable for employment. The Court stated that people living with HIV constituted a minority in our society. Society had, however, responded to their plight with intense prejudice and had subjected them to systemic disadvantage and discrimination. People living with HIV/AIDS were one of the most vulnerable groups in society. The Court opined that in view of the prevailing prejudice against HIV positive people, any discrimination against them could be interpreted as a fresh instance of stigmatisation and it considered that to be an assault on their dignity. The impact of discrimination on HIV positive people was devastating especially in the context of employment. It denied them the right to earn a living. This led to the Court stressing that HIV positive employees enjoyed special protection in law. Hoffmann was discriminated against because of his HIV status. Psychologists and the Scope of Practice There are five categories of registration in psychology for Psychologists. These are Clinical Psychologists, Counselling Psychologists, Educational Psychologists, Industrial Psychologists and Research Psychologists (Foxcroft, Paterson, Le Roux & Herbst, 2004). The above mentioned categories have boundaries which limits their duties in relation to area of specialisation by each category. A psychologist shall limit his or her practice to areas within the boundaries of his or her competency based on his or her formal education, training, supervised experience and or appropriate professional expirience(hpcsa Ethics Code of Conduct, 2006). 62

5 The Minister of Health has, under section 61 read with section 33 of the Health Professions Act, 1974 (Act No. 56 of 1974) and after consultation with the Health Professions Council of South Africa, made the regulations concerning the scope of practice. The roles and area of focus for each category has been defined. The first category of Clinical Psychologists assesses, diagnose and intervene in order to alleviate or contain relatively serious forms of psychological distress and psychopathology or what is commonly refered to as abnormal behaviour. On the other hand, Counselling Psychologists assist relatively well-adjusted people in dealing with normal problems of life concerning all stages and aspects of a person s existence in order to facilitate desirable psychological adjustment, growth and maturity. The scope of practice further distinguishes the role of Educational Psychologists as performing different functions as compared to other categories of psychology. Educational Psychologists are responsible for assessing, diagnosing and intervening in order to facilitate the psychological adjustment and development of children and adolescents within the context of family, school, social or peer groups and communities. Psychologists in this category are more concerned with children learning and development and they aim to bring about positive change for children. Industrial Psychologists apply the principles of psychology to issues related to the work situation of relatively well-adjusted adults in order to optimise individual, group and organisational well-being and effectiveness. They focus on such issues as stress management, organisational diagnosis and development, training, research and development, team work, team building, group cohesiveness, solving of conflicts in the workplace with the main purpose of boosting morale and improving overall organisational performance. The last category of Research Psychologists addresses the Clinical, Counselling, Educational and Industrial Psychology categories, not to render services to the public in that field, but to apply research methods and techniques in order to contribute to the knowledge base of that particular field. Having the knowledge of the above categories, Psychologists are expected to practice their profession within the boundaries of their competency. Boundary crossing is in itself a violation of the code of ethics. For instance, it is unethical for an Industrial Psychologist to diagnose and treat a patient suffering from catatonic schizophrenia. Schizophrenia is a mental disorder which is relatively serious in nature and requires the services of a Clinical Psychologist. Industrial Psychologists should focus their attention on problems facing individuals in the work context such as stress and poor work performance. They should thrive to identify causes of poor employee and organisational performance and recommend or implement solutions. Ethics in Forensic Psychology The involvement of psychologists as expert witnesses in legal proceedings has increased steadily since psychologists first entered the courtroom about a century ago (Gudjonsson, 63

6 1991). Psychologist can be called in the court or any legal proceedings to give an expert opinion. The court can subpoena a psychologist to stand in court to give evidence as an expert witness. A Psychologist can give evidence on many issues. Gudjonsson (1995) provides a number of issues in which a Psychologist can be called to give evidence. These are questions about mental state, psychological and/or social functioning, neuropsychological functioning, personality, witness reliability, interrogative suggestibility and disputed confessions, malingering, competence to stand trial, moral development and reasoning, post-traumatic stress disorder, attitudes of offenders to their crime, sexual problems, anger problems and deception. Furthermore, Psychologist may be called to give evidence concerning loss of earnings after an individual has been involved in an accident. The role of a psychologist as expert witness when called by the court is compulsory. Additionally, a court order or any legislative requirement takes precedence over any other obligations of a Psychologist. According to the HPCSA ethics code (2006), if a Psychologist ethical responsibility conflict with the law or other legal authority, such Psychologist shall make known his or her commitment to the ethical rules and take steps to resolve the conflict. However, if the conflict referred above is unresolved via such means, a psychologist may adhere to the requirements of the law or other legal authority. For instance if a psychologist is required by the ethics code not to disclose confidential information about a client to anyone, he/she is obliged not to disclose such information. However, if the information is required by the court of law, the Psychologist concerned must disclose the information so required. Furthermore, if a Psychologist is called to give evidence in court, he/she must leave all other activities and give first preference to the court order. According to Hess & Weiner (1999), Psychologists who serve as expert witnesses should strive for objectivity and high scientific standards in order to ensure the credibility of their evidence. Honesty, consistency and professional competency are the best policies when serving as an expert witness. Regardless of expertise and experience, the psychologist acting as an expert witness should prepare thoroughly and comprehensively before giving evidence in court (Brodsky, Caputo & Domino, 2002). The HPCSA Code of Ethics (2006), further states that a Psychologist shall testify truthfully, honestly, candidly and consistently with applicable legal procedures and describe fairly the basis for their testimony and conclusions in Psycho-legal testimony and reports. Moreover, when a Psychologist is required by a court to appear as a fact witness, such Psychologist is legally obliged to present evidence. However, a Psychologist may declare his or her reluctance to appear as a fact witness by appearing as a witness under protest. Irrespective of whether a psychologist appears as a witness under protest or not, such Psychologist shall serve as a truthful and fully disclosing witness (HPCSA Code of Ethics, 2006). Therefore Psychologist as experts in the forensic field should be trusted in their testimonies and should thrive to be as truthful as much as possible. 64

7 Psychometric Assessment, Selection And Ethics Psychologists use psychological tests as an integral part of their assessments. Psychological assessments form the core function for Psychologists. They use psychometric testing for a variety of purpose. Foxcroft & Roodt (2009) posits that psychometric assessments can help to identify strengths and weaknesses, map development or progress, make decisions regarding suitability for a job or a field of study, identify training and education needs and assist in a diagnosis. In selection, psychometric tests are useful in predicting future job performance of candidates and their learning and developmental capabilities. However, this applies if they are used in a responsible manner. This view is supported by Owen and Taljaard (1996), who argues that psychometric tests can contribute to the efficiency of selection and placement in industry, if used carefully and responsibly. In order to achieve this, Pope, Butcher, Seelen (2000) recommend that psychometric tests should only be employed if the psychologist has sufficient expertise and up-to-date training in its application. Furthermore, Psychologists should be aware and familiar with the reliability, validation and proper applications and uses of the methods they use according to the HPCSA Code of Ethics (2006). In addition, Psychologists should ensure that psychometric tests are applied fairly to all candidates without biasing any group for it is unethical to use tests that are invalid and unreliable. For example an intelligent test that has been developed in the United States for the American population is only valid for that particular group. However, if it is used to measure intelligent level for the South African population, it becomes invalid. It is also unethical for a Psychologist to use tests that are outdated and obsolete for its current use. According to the HPCSA Code of ethics (2006), a psychologist shall not base his or her assessment or intervention decision or recommendation on data or test results that are outdated for the current purpose; or such a decision or recommendation on tests and measures that are obsolete and not useful for the current purpose, but shall ensure that tests used have been classified by the board and that other laws, such as the Employment Equity Act, 1998 (Act No. 55 of 1998) have been complied with. Moreover, Psychologists should always maintain up to date competencies in their areas of practice through continuing professional development and consultation (HPCSA Code of Ethics, 2006). Conclusion The paper was an evaluation of the role played by the HPCSA code of ethics and the Employment Equity Act in ensuring that Psychologists adhere to their ethical and legal principles. The discussion centred on the Employment Equity Act and the Ethics Code in order to provide an awareness on ethics and legal principles to Psychologists. The boundaries of the scope of practice for Psychologists were demarcated. Since Psychologists will be called to give evidence in court, an overview of ethics in forensic psychology was highlighted. The discussion was closed by looking at the ethics in psychometric assessment and selection. 65

8 Reference Brodsky, S.L., Caputo, A.A. & Domino, M.L. (2002). The mental health professional in Court: Leagla issues, research foundations, and effective testimony. In B. van Dorsten (Ed.), Forensic psychology: From classroom to courtroom (pp ). New York: Kluwer Academic/Plenum Publishers. Code of good practice on key aspects of HIV/AIDS and employment (2000). Employment Equity Act. (1998). No. 55. Department of Labour, RSA. Eckstein, S. (1998). Testing Times. People Dynamics, 17(6), Employment Equity Act. (1998). No.55. Republic of South Africa. Employment Equity Act, No 55, Republic of South Africa. Foxcroft, C.D. & Roodt, G. (Eds.) (2009). An introduction to psychological assessment in the South African context. Cape Town: Oxford University Press. Foxcroft, C.D., Paterson, H., Le Roux, N., & Herbst, D. (2004). Psychological assessment in South Africa: a needs analysis. Pretoria: Human Science Research Council. Gudjonsson, G. (1991). The trial of psychiatry: Insanity in the twentieth century. In K. Herbst & J. Gunn (Eds.), Mentally disordered offender. Oxford: Butterworth Heinemann. Gudjonsson, G. (1995). Psychology and assessment. In D. Carson & R. Bull (Eds.), Handbook of Psychology in legal contexts (pp ). Chichester: John Wiley & Sons. Health Professions Act, Act 56 of 1974, Health Professions Council of South Africa (HPCSA). Hess, A.K. & Weiner, I.B. (1999). The Handbook of Forensic Psychology (2nd edition). New York: John Wiley & Sons. Hoffmann v South African Airways (2000) 21 ILJ2357 (CC). Owen, K. & Taljaard, J.J. (1996). Handbook for the use of psychological and scholastic tests of the HSRC. Pretoria: HSRC. Pope, K.S., Butcher, J.N. & Seelen, J. (2000). MMPI/MMPI-2/MMPI-A in Court: Assessment, Testimony, and Cross-Examination for Expert Witnesses and Attorneys (2nd edition). Washington D.C.: American Psychological Association. Roodt, G. (1998). Challenges in psychological assessment. People Dynamics, 16(11), Society for Industrial Psychology (2006). Code of practice for psychological assessment for the workplace in South Africa. Johannesburg: Society for Industrial Psychology of the Psychological Society of South Africa. The Health Professions of South Africa Board for Psychology Ethical Code of Conduct,

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