Permissive and Mandatory Terms in Law and Ethics

Have you ever been frustrated by “legalese,” the use of highly technical, complex, archaic, and sometimes redundant terms in legal documents such as statutes, contracts, policies, and codes of ethics? Whereas I hereby affirm the truth of the above statement, I therefore swear and undertake to truly adopt a jargon-free lingua franca in the remainder of this treatise. In other words, I will endeavor to use plain language.

As mental health professionals (MHPs), we often favour plain language, especially when communicating with our clients. Similarly, lawyers are increasingly encouraged to use plain language, making it easier for their clients and the general public to understand legal documents and communications. However, sometimes word choice is crucial and lawyers favour certain terms because it is important to convey specific meanings. In this article, we explore how different words are used to indicate whether behavioural directives are permissive, conditional or mandatory.

Allowed, prohibited, preferred or mandatory

Legal documents use specific terms to indicate whether a particular behavior is permitted, prohibited, preferred, or required. For example, terms like “may” or “permitted” indicate that a behavior is permitted but not required. When a regulatory law states that MHPs can With respect to psychiatric diagnoses, this law authorizes mental health professionals to make diagnoses, but does not require them to do so. In contrast, legal documents use terms such as “shall not,” “prohibited,” “illegal,” “crime,” or “punishable” to indicate that certain behaviors are prohibited. A criminal statute might describe armed robbery as a “crime punishable by imprisonment.” Similarly, agency policies, licensing laws, and codes of ethics might prohibit certain professional behaviors, such as sexual relations with clients. Absolute prohibitions leave no room for discretion. If a particular behavior is prohibited, we can expect that violations will result in a penalty or other specific consequences to hold individuals accountable and deter future violations.

Professional codes of ethics often use the term “should” to indicate that a certain type of behavior is recommended or preferred, but not required. When a code states that mental health professionals should explain the nature of services to clients, for example, it is a recommendation rather than an absolute rule. Generally, mental health professionals are expected to explain services. However, there may be some leeway, such as when providing services in an emergency situation where there is insufficient time to explain service options. While “should” allows mental health professionals to use their professional judgment, “shall” and “will” indicate that specific behaviors are required. If a law or agency policy states that mental health professionals should explain the nature of services to clients, it is important to note that mental health professionals must explain the nature of services to clients. duty If health care professionals explain the nature and limits of confidentiality to new patients, then it is necessary to do so. There is no discretion. While “should” allows health care professionals to consider the situation and use their professional judgment, “must” provides an absolute directive. When codes of ethics state that health care professionals “should avoid dual relationships,” this represents a general expectation. However, health care professionals may be able to justify dual relationships when the risk of harm is low, dual relationships are unavoidable (as in small communities), or reasonable steps are taken to protect the client from potential risks arising from the dual relationship.

Why Word Choice Matters for Mental Health Professionals

As mental health professionals, we are required to follow a number of guidelines, including laws, contracts, agency policies, and codes of ethics. Understanding whether these guidelines are permissive, absolutely required, or generally expected can have a critical impact on our practices. When guidelines allow for discretion, we must exercise that discretion based on sound critical thinking and professional judgment. However, when we are required to follow absolute prohibitions or requirements, we must recognize that we may be held accountable for violations, regardless of situational factors.

When developing our own policies or contracts, it is essential to choose our words carefully, paying attention to whether the guidelines are intended to be followed to the letter or whether they provide some leeway based on specific circumstances. Legal documents do not need to be filled with legalese; however, they should use precise language to clarify whether certain actions are permitted, expected, or required.