Visualising Preston’s Ethical Decision-Making Model

I have posted about this before, but given public policy debates on issues such as inequality, refugees, climate change, etc, I thought it might be useful to post this simplified model of ethical decision-making again. I contend that decision-makers are obliged to make explicit the process by which a position is chosen. The notion of “accountability” implies that an account of a decision should be possible, before the decision is acted on. The same applies to subsequent reviews, i.e. “should we continue to act as we have done?” It seems to me many policy decisions prefer economics and utility, to values, ethics, consequences, dispositions, and character. Undoubtedly many policies involve complex considerations. As part of this we can use some simple tools to tease out the threads of difficult problems.

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Human Research Ethics Approval

I am happy to learn today the Deakin University Human Research Ethics Committee have approved my proposed research involving semi-structured interviews with Australian lawyers teaching practical legal training. This research is part of my PhD candidature. More on this in coming weeks.

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What lies beNEAF (or how I learned to love ethics applications)

IMG_2909Is the human research ethics review process too difficult for legal education research? I do not think it is…

I am part-way through ethics review for my PhD research project. I previously sought and obtained ethics approval for earlier masters research. So I have minimal amount of prior experience with an ethics application and my two projects are quite different.* Through discussions with friends and acquaintances interested in legal education research, I am aware some are irritated by the ethics review process, with a few avoiding research involving human participants altogether.

I am no expert in this, but what is the big deal really? We’re lawyers, right? We’re trained to work with professional ethics and ethical dilemmas and processes to resolve them, are we not? Why should ethics applications be so daunting?

In Australia any research involving human participants is expected to comply with The National Statement On Ethical Conduct In Human Research (March 2007). Legal education and practical legal training research involving human participants such as teachers and students should comply with guidelines within the statement. It is possible that initial review of a research design determines it to be ‘low risk’ and that a full review by a Human Research Ethics Committee (HREC) is not necessary.

An application to a HREC will usually involve completion of the National Ethics Application Form (NEAF), together with supplementary documents such as a Plain Language Statement (PLS) and examples of methods used to contact potential participants. The number and type of supplementary documents will depend in part on the methodology and methods you are using for your research. For example, if you are using an online questionnaire you will need to include this. Similarly, if you are using semi-structured interviews you should include the interview schedule.

Most of the comments I’ve heard are to do with the voluminous NEAF or the perceived pedantry of ethics committees (and their ‘gatekeepers’), so I comment briefly about these two aspects.

The NEAF is a lengthy document and requires care and attention to detail, although substantial parts are utilitarian and not difficult to complete. I think parts of the NEAF (particularly Parts 5 and 6, dealing with the project design and the participants) force researchers to really think through the ‘how’ and ‘why’ of the research design. It can help to think of the NEAF and ethics approval process generally as part of developing and improving the research design. Using insights from working with the NEAF, you would probably revise your PLS and supplementary documents.

One of the most important lessons I’ve learned regarding the NEAF is to take time to read parts of the National Statement linked to each section or sub-section of the NEAF. Doing this usually identifies key statements relevant to the specific project that can be adopted as the ‘answer’. Reading the National Statement improves understanding  of the rationale underlying NEAF questions (and likely questions from a HREC).

Reading widely around research methodologies and methods will also identify key concepts and terms likely to be familiar to HREC panel members. For example, terms like ‘convenience sampling‘ or ‘snowballing‘ would communicate specific meanings for HREC  panel members. Appropriate use of terminology expedites communication and inspires confidence in the researcher.

It is worthwhile to check whether your HREC has issued human research ethics guidelines, particularly those aimed as specific methods such as covert observation, focus groups, interviews, and case studies, for example. The guidelines will flag issues specific to those methods that ought to be addressed in the NEAF and draft PLS. Addressing specific issues connected to particular methods is more likely to satisfy the HREC you have appropriately addressed relevant aspects of the research design. Guidelines will also help  you to express clearly your thinking about how you are going to conduct ethical research with your chosen methods.

Do not be put off expanding your legal education research to involve human participants. We need substantial original contributions to knowledge in legal education and practical legal training, and research involving humans are integral to this. The ethics approval process is a dimension of research that can be constructive for improved understanding.

* The two projects are different in a number of ways. The masters project involved student satisfaction with online discussions as a teaching medium, used the ‘community of inquiry’ theoretical framework and substantially quantitative methods. The PhD project investigates how lawyers who teach practical legal training engage with scholarly activities around their teaching work (scholarship of teaching). The PhD project draws on qualitative methodologies and methods, and a theoretical framework derived from Bourdieu’s sociological theories and de Certeau’s cultural theory of practice in everyday life. Consequently, many aspects of the ethics approval process for each project are different.

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Taking into account ‘affect’ in Practical Legal Training

This post is an edited version of a comment that I posted to the Practical Legal Training Educators Australia discussion group.

I recently finished re-reading Julian Webb’s chapter, ‘The Body in (E)motion: Thinking through Embodiment in Legal Education’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education – Emotion in Learning and Teaching the Law, Emerging Legal Learning (Ashgate, 2011) 211.

I think Julian Webb makes a compelling argument (at p 227) that, ‘By enabling our students to get social in the classroom, to come together in a more structured and reflective way, group learning can actively support their social and moral development, and – maybe, just maybe – enhance their ability to become ‘better’ social actors…’

This chapter follows nicely from Graham Ferris and Rebecca Huxley-Binns’ chapter, ‘What Students Care About and Why We Should Care’ in the same book. They rightly argue at p 195, ‘…that those delivering education should explicitly and deliberately consider the purposes of learners, meaning the things they do or might value, or care about, or strive for. Whilst the choice of purpose is that of the learner, we can use our experience and knowledge of teaching law in higher education to facilitate purpose, choice or value adoption or rejection.’

It seems to me that these positions are applicable to the practical legal training environment, not just the academy. That said, some might be understandably concerned about leaning too far toward what students care about and losing sight of the integrity of the training and the PLT accreditation. This is the ‘springboard’ for my following comments.

Taking the skills workshop situation as an example, we can design the instruction and plan certain learning objectives for this experiential learning experience.
There may be ‘global’ objectives embodied by ‘global’ statements in the Competency Standards for Entry-Level Lawyers; ‘instructional’ objectives the students’ performance goals, the conditions for that performance, and the the criterion for satisfactory performance. We can frame specific educational objectives as a subject-verb-object sentence: ‘[During the role-play interview] the student will be able to obtain all instructions necessary [to commence work on the client’s problem and to provide preliminary advice in plain language]’. We could specify what ‘plain language’ means in this context (e.g. we could decide to exclude ‘txt-speech’, and explain why – notions of professionalism, regularity, respect, integrity, etc.) Here, I’ve drawn on Mager, R.F., Preparing Instructional Objectives. 1997, Atlanta, Georgia, USA: CEP Press.

It is also possible to explicitly plan the learning across different levels of processing (e.g. retrieval, comprehension, analysis, knowledge utilisation, meta-cognition, and the self-system/affective level) across different domains of learning (information, mental procedures, psychomotor procedures). Here, I’ve drawn on Marzano, R.J. and J.S. Kendall, eds. The New Taxonomy of Educational Objectives. 2nd ed. 2007, Corwin Press: Thousand Oaks, California. I have previously blogged about this taxonomy.

Taking the above into account when planning the workshop, we can decide to adopt certain evidence-based teaching methods, such as advanced organisers, graphic organisers, whole-class interactive or co-operative learning approaches, and use a range of media to do this. I am drawing on Petty, Geoff, Evidence-based Teaching – A Practical Approach (Nelson Thornes, 2nd ed, 2009) here. Of course, it is important that the material and methods we use are ‘authentic’ and relevant to the learning objectives.

When we actually ‘perform’ or ‘deliver’ the workshop, ‘stuff’ comes up during discussions or arising out of the practice role-play interviews. It may be the student asks a question about how to handle a certain situation, or a student recalls an analogous situation from their volunteer legal work or graduate placement. We might respond by opening the question up to discussion, or share an illustrative ‘war story’ anecdote from our own practice to give an example of how we solved a problem. These are usually good opportunities to employ, and model, ‘reflection-in-action’, and ‘reflection-on-action’ approaches to teaching, learning and professional practice. I am thinking about the work of Chris Argyris and Donald Schön, but in particular Schön’s book., Educating the reflective practitioner, Jossey-Bass higher education series. (Jossey-Bass, 1st pbk. print. ed, 1990). Peter Senge is also good to read about this – Senge, Peter M., The Fifth Discipline – The Art & Practice of the Learning Organisation (Doubleday Business, 2nd ed, 2006).

These interactions have social as well as educational qualities; both of which involve the students emotionally to some extent.

Running through all of this, from planning to delivery, are considerations concerning the affective domain / self-system level of processing learning. What students want and feel is relevant to emotionally driven judgements about whether the learning task is important and relevant to their learning goals and their ability to complete the learning task: motivation to learn = value x expectancy. This can be especially important with adult learners who can resist what they perceive as ‘supplementary’ learning (Atherton, James, ‘Resistance to Learning: A Discussion Based on Participants in In-Service Professional Training Programme’ (1999) 51(1) Journal of Vocational Education and Training: The Vocational Aspect of Education 77).

Some tend to focus on these aspects in relation to initial engagement, but I think they’re equally important to student satisfaction with the learning and could possibly affect their feelings about continuing professional education. In other words, what we do during the interactions is relevant to the immediate educational objective, but also could affect young lawyers’ commitment to life-long learning, and either impinge or enhance their satisfaction with their professional development, and their chosen profession. I think these factors are also relevant in training entry-level lawyers to pursue thinking about ethics and professional responsibility.

So, I agree that it is important to be clear about what are our teaching and learning goals in facilitating our students construction of themselves as lawyers; I think it is important that we are able to justify our instructional decision-making; it seems to me that both of those propositions involve developing our understanding of the affective domain of learning in practical legal training so we can continually improve the way we train lawyers.

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Update – DSM-5 – Mental Health Disclosures for Lawyers

As reported in my earlier blog post…

It is my understanding that most Australian medical practitioners would refer to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) to categorise and assist in the identification of mental disorders.

By way of update – A revised edition of the manual (DSM-5) is due to be published in 2013.  Apparently each revision of the DSM attracts some controversy. The lead up to the release of DSM-5 is no exception. Some commentators in the mental health field are concerned about the broadening of criteria for identification of certain mental health disorders; see this article in The Age, for example.  It will be interesting to see what impact, if any, this issue has for the development of mental health policy in within the jurisdiction of disclosures for admission to the profession and grant/renewal of practising certificates.

You can read my original blog post here.

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A pervasive approach to teaching legal ethics?

Recently I was teaching in an advocacy skills workshop. Something happened in the workshop that reminded me of on an interesting paper presented by Michael Robinson at 3ILEC in 2008: ‘Providing Ethics Learning Opportunities throughout the Legal Curriculum’ (Paper presented at the The Third International Legal Ethics Conference, Gold Coast, Australia, 13-16 July 2008)). That paper has since been published and is available at: http://eprints.usq.edu.au/6293/2/Robertson_LE_2009_PV.pdf

Michael proposed ‘a model that makes it possible to provide law students with legal ethics learning opportunities throughout the legal curriculum’ (p 61). The paper provides a detailed approach to curriculum design to provide such opportunities.

I like the word, ‘opportunity’, it reminds me of a term used in medical general practice, ‘opportunistic vaccination’. That refers to a situation where a child presents to a doctor with some complaint and during the consultation the doctor ascertains whether the child is up to date with her or his vaccinations. If the child is not up to date, the doctor offers to bring the vaccinations up to date at that session.

I agree that a directed pervasive approach to curriculum design is important, but I also think that adopting the ‘opportunistic vaccination’ approach could be a powerful and practical way to encourage graduate lawyers to recognise ethical issues when they arise.

Back to my workshop – the graduates were split into two groups with one acting for the plaintiff and the other acting for the defendant. For logistical reasons we had to keep all the graduates in the same room at this time. The graduates were enthusiastically engaged in the preparation and within their own group energetically debating factual issues and strategic approaches to examination-in-chief and cross-examination. It did not take long for the volume of the discussions to get very loud. There erupted a bit of good-natured fencing about members of each group eavesdropping on the discussions of the other group.

I stepped in at that point and suggest we chat about that for a moment. Imagine, I said, that you are at court taking instructions from a client in one corner of the foyer, when you realise you can overhear your opponent in the same matter taking instructions from her or his client close by. What should you do?

Most of the graduates immediately volunteered that it would be unethical to eavesdrop on a privileged discussion between a lawyer and her or his client. There was some further discussion about what practical steps should be taken to remedy the situation. One graduate also commented that it was a bit similar to finding your opponent’s brief of instructions, and that it would be wrong to pick up the brief and read it. There was a discussion about written and unwritten ethical rules, and the topic of personal and professional values.

This side discussion only took a few minutes, but it seemed to produce a great deal of interest given the graduates were ‘experiencing’ a potential dilemma. After that discussion, the graduates did quieten down a bit when they returned to their advocacy work.

It would be possible to ‘script’ learning opportunities like this, but I am really interested in the spontaneous ‘opportunistic vaccination’ approach, which connects to ideas of reflection-in-action and reflection-on-action as part of professional skills. It does mean that we as teachers need to stay engaged with what is happening in the room while the graduates are doing group work, be sensitised to opportunities, and be ready to provide an informed approach to discussion about the ethical issues.

Is this something we leave to lecturers to pursue at their discretion? Is it something with which lecturers might need some help to develop? What do you think?

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