Ethics and wellbeing: Our duty of care

Marguerite Picard

Marguerite Picard

Reports over the past decade have indicated high levels of psychological distress and illbeing within Australia’s legal profession. Amidst a culture which lauds overwork, perfectionism, and profits whilst condoning poor employee treatment and stigmatising mental health issues, these reports are unsurprising. Awareness of wellbeing and its work- and profession-related influences has grown significantly. Discussion has evolved such that wellbeing is no longer the trigger word it used to be. Sadly, though, it appears the profession remains reluctant to do more than dip a toe into the waters of change. Still clinging to a professional identity defined by strength and stoicism, wellbeing remains very much in the “don’t ask, don’t tell” box and our ethical responsibility remains unchecked.

This is the first of three articles exploring the connection between wellbeing, ethics, and the organisational and systemic elements undermining them. We’ll start by defining wellbeing and discussing its ethical foundations before investigating its inclusion in legal practice competency standards.

What is wellbeing?

The World Health Organisation (2022) defines health as “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity”. Thus, health is an inherently positive state of being that is quite distinct from illness. Mental health is a term that is particularly prone to misinterpretation as it is often used to refer to mental illness or problems. The World Health Organisation (2022) separately defines mental health positively as a “state of mental wellbeing that enables people to cope with the stresses of life, realise their abilities, learn well and work well, and contribute to their community. It is an integral component of health and wellbeing…”

Wellbeing is generally defined positively as a state of optimal functioning, as suggested in the World Health Organisation definition of mental health. Contemporary research literature presents numerous ideas about wellbeing. In Cooke et al.’s literature review (2016), 42 conceptualisations or measures were investigated. However, it is generally well-accepted that psychological wellbeing theories, concepts, and measures are grounded in ethical theory concerned with how people function.

Ethical foundations

Aristotle’s Nicomachean Ethics (350BCE) is a philosophical treatise primarily concerned with how humans can live well. The work defines wellbeing as an ethical issue through its link to human function, moral virtues, habits, and external conditions (Scaltas, 2022). Aristotle distinguishes between hedonia, commonly understood as the pursuit of pleasure or happiness, and eudaimonia, understood as an active, long-term state of human flourishing. Thus, eudaimonia/wellbeing is considered the highest state of being developed through a life of study, reflection, and consciousness. Ryan and Deci’s 2001 consideration of psychological wellbeing drew from Aristotle’s dualistic framework, which has influenced wellbeing research and measurement in the field of psychology for more than 20 years.

One of the leading measures of hedonic wellbeing is Deiner’s Subjective Wellbeing (1984), which measures an individual’s positive and negative affect and overall life satisfaction. By contrast Ryff’s widely used Scales of Psychological Wellbeing (1989) specifically adopted a eudaimonic approach. Ryff’s conceptualisation of wellbeing is comprised of six elements: autonomy, self-acceptance, positive relations with others, purpose, personal growth, and environmental mastery. As Ryan and Deci (2001) point out, these conceptualisations describe and measure wellbeing differently, and together provide a more complete understanding. Thus, wellbeing is best described as a multi-faceted concept with solid ethical foundations.

Wellbeing and professional ethical requirements

The state of professionals’ wellbeing has potential ethical consequences, such as professional competence and client safety. Most of the helping professions in Australia, such as psychologists, general practitioners, and social workers, encode wellbeing as part of their ethical duty to maintain competence to practise. While the phrasing varies, there remains common agreement on the importance of wellbeing to, and within, these professions.

The Australian Psychological Society’s Code of Ethics (2007, p.19) states this is demonstrated by psychologists “ensuring that their emotional, mental, and physical state does not impair their ability to provide a competent psychological service.” This suggests that if a psychologist were to experience extreme levels of stress, vicarious trauma, or depression, for example, it would be unethical for them to continue practising without properly addressing these matters, such as through personal therapy and supervision from a more experienced, trusted practitioner.

The professional conduct of general practitioners includes taking “responsibility for your own health and wellbeing” (Australian Medical Association, 2016, p.4). Social workers’ fitness to practise includes consideration of their health to “practise their profession safely and effectively” (Australian Association of Social Workers, 2020, p.29). By including wellbeing as a key part of fitness to practise, they suggest any professional who neglects their wellbeing may breach their ethical of care if they consequently provide less effective services and harm clients.

By contrast, the Australian Solicitors’ Conduct Rules (2012) and the Legal Profession Uniform Conduct (Barristers) Rules (2015) do not refer to legal professionals’ health and wellbeing. This omission suggests a lack of agreement within the legal fraternity on the link between professional competence, client safety, and a practitioner’s health and wellbeing. It indicates that industry-wide talk about the importance of wellbeing is just that – talk. And the research shows the profession’s own health and reputation may be suffering as a result.

The codification of wellbeing as a professional ethical requirement demonstrates critical systemic supports for many of the helping professions, their members, and their clients. It speaks volumes about the agreed value of wellbeing. In turn, this empowers members to treat wellbeing as a crucial part of competence and continuing professional development. It allows for earlier detection of issues before they become crises and protects clients from negative impacts. While the development of wellbeing polices and initiatives free fitness classes for employees might appear to tick a box, it fails to acknowledge the structural supports needed to make meaningful improvements. Whereas enshrining wellbeing as an ethical duty, such as those to clients and courts, will go a long way to helping the legal profession shift the culture of denial and stigma towards one of acknowledgment and effective action.

References

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