Introduction to the Counseling Profession

Chapter 4

Ethical and Legal Considerations

in Counseling

Chapter Topics

Basic Concepts“According to MacKinnon (1998), ethics is a branch of philosophy, specifically moral philosophy, that “asks basic questions about the good life, about what is better and worse, about whether there is any objective right and wrong, and how we know it if there is (p. 5).”

Professional Ethics

The term professional ethics refers to agreed-upon rules, principles, and standards that govern appropriate conduct and define acceptable practices in various professional fields, including the mental health professions.

Joining and identifying as a member of a group usually signifies that a member agrees to adhere to the ethical standards established by the group.

Basic ConceptsTypes of Ethics

Mandatory Ethics are influenced and shaped in conjunction with legal standards.

Aspirational Ethics promote ethical behavior based on broad-spectrum aspirations such as justice and respect for the rights and dignity of persons.

Virtue Ethics focus on internal moral processes and on “who one is.”

Principle Ethics are concerned with “what one does” and implies a certain level of obligation to act in certain ways.

Basic Concepts“Laws are the agreed-on rules of a society that set forth the basic principles for living together as a group” (Remley & Herlihy, 2007, p. 3).”

When individual rights are compromised or when public safety, health, and general welfare are jeopardized in some way, law also factors into the decision-making process and guides the actions of the counselor.

Laws are divided into two primary categories: Criminal and civil.

Criminal laws generally govern and pertain to behaviors which are crimes, such as statutory rape, fraud, and acts of violence.

Civil laws govern or pertain to individual and group interests and rights which are non-criminal in nature, such as contract, personal injury/tort, divorce and custodial rights, and property interests.

Basic Concepts“Tort law pertains to the careless, reckless, negligent, and sometimes even intentional behavior of a third party when that behavior is the proximate cause of injury to another.”

Malpractice

Malpractice torts can be particularly important to professional counselors.

Based on a general principle that holds professionals responsible for practices that harm clients, a malpractice tort empowers judicial systems to establish what is unacceptable conduct for the professional.

The connection between the actions of a counselor and injury to a client is linked to foreseeability.

Basic Concepts“Counselors need to understand the relationship between what is ethical and what is legal; however, should one follow or break a law that is unethical by one’s personal and professional standards?”

Ethical Dilemmas

Dilemmas often arise because differences exist between ethical standards and law.

Law establishes the minimum requirements for counselor behavior.

Ignorance of the law is not a defense for a violation of the law.

This concept can be complicated during the interplay between the law and cultural values.

Basic Concepts“With so many things to consider, how does a counselor move forward to make a decision with confidence?”

Ethical Decision Making Model

Solutions to Ethical Problems in the Schools (STEPS)

1.Define the problem emotionally and intellectually2.Apply the ASCA Ethical Standards and the law3.Consider the students’ chronological and developmental levels4.Consider the setting, parental rights and minors’ rights5.Apply the moral principles6.Determine your potential courses of action and their consequences7.Evaluate the selected action8.Consult9.Implement the course of action

Ethical Motivations“Motivations are often the root sources of a counselor’s behavior, whether or not such behavior is legal or ethical.”

The therapeutic process can be blocked when therapists use clients to fulfill their own needs to nurture others, to feel powerful or important, or to win acceptance, admiration, respect, or awe.

It is unethical when counselors are primarily meeting their own needs and imposing personal values in the counseling relationship.

Without bringing awareness to our motivations a counselor may miss the subtle ways our underlying motivations enter the counseling relationship.

Ethical Motivations“Clients are harmed by counselors who meet their personal needs through “multiple relationships” with their clients.”

Multiple Relationships

Multiple relationships occur when a counselor relates to a client in a professional role and concurrently or sequentially occupies one or more other professional or nonprofessional roles with the client (e.g. friend, intimate partner, peer, financial partner, etc).

Ethical Motivations“Counselors integrate and use ethical principles as a way to monitor and reflect upon internal motivations and to guide their behaviors, especially when difficulties arise.”

Principles serve as guideposts for counselor behavior:

1.Beneficence: Do good, promote well-being and health.2.Nonmaleficence: Do no harm, prevent harmful actions and affects.3.Autonomy: Recognize and respect independence and self-determination.4.Justice: Promote fairness and equality in dealings.5.Fidelity: Be responsible to clients and honor agreements.6.Veracity: Be truthful and honest in dealings.

Professional Responsibility“A breach of fiduciary responsibility, including a breach of confidentiality without appropriate justification, can evoke legal considerations and the potential for a malpractice claim.”

Counselor Responsibilities

Counselors have a fiduciary responsibility to their clients and must be accountable for client welfare and rights.

Counselors have a responsibility to the public, to other professionals, to agencies and institutions in which they work, as well as to the counseling profession.

Professional Responsibility“Professional ethical standards and the application of these standards are increasingly reflecting the importance of multiculturalism and social justice.”

The Importance of Multiculturalism in Ethics

Culture affects counselors’ ethical thinking as well as the decisions practitioners make about what they consider to be good and appropriate professional conduct.

Ibrahim (1996) suggested a universalistic approach to ethical standards, that is, having ethical codes that reflect what is common across cultures while honoring the ethics of each individual culture (as cited in Atkinson, 2004).

Professional Responsibility“Sue and Sue (2003) noted, “From our perspective, mental health professionals have seldom functioned in a culturally competent manner. Rather, they have functioned in a monoculturally competent manner. . . .”

Multicultural Counseling Competence

Multicultural counseling competence involves three main components:

(a)An awareness of one’s cultural values and biases (b)Cultural awareness of your client’s worldview(c)Using culturally appropriate counseling practices

Professional Responsibility“The notion that it is unethical to practice beyond the limits of one’s competence is widely accepted. When clients enter a counseling relationship, they assume the counselor is competent.”

Counselor Competence

Boundaries of Competence New Specialty Areas of Practice Qualified for Employment Monitor for Effectiveness Consultation on Ethical Obligation Continuing Education Impairment Counselor Incapacitation Leaving a Practice

Client Rights and Welfare“Confidentiality, privileged communication, and informed consent which are based on the Fourth Amendment, established to guarantee privacy. Privacy is defined as “the constitutional right of an individual to decide the time, place, manner, and extent of sharing oneself with others.”

Privacy and Confidentiality

Confidentiality is a professional concept. Privileged communication is a legal term referring to a right held by clients to prevent therapeutic information from entering into a legal proceeding.

Clients, not counselors, have control over who has access to what they have said in therapy, and clients are protected from having their communication disclosed in a court of law.

Client Rights and WelfarePrivacy and Confidentiality

In order for communication to be privileged, four conditions must be met:

1.Communication must originate in confidence that it will not be disclosed. 2.Confidentiality must be essential to the full and satisfactory maintenance of the relationship. 3.In the opinion of the greater community, the relationship must be one that should be sedulously fostered, or in other words, noted by care and persistent effort.4.Injury to the relationship by disclosure of the communication must be greater than the benefit gained by the correct disposal of litigation regarding the information.

Client Rights and Welfare“In the late 1990’s, concern over the privacy of health services consumers increased because of advances in technology and shift to managed health care.”

Health Insurance Portability and Accountability Act (HIPAA)

HIPAA insures the privacy of consumers while at the same time allowing for efficient transfer of information.

The Privacy Rule addresses protected information related to counseling.

The privacy rule applies to information that might identify or could be used to identify a person.

Client Rights and WelfareHealth Insurance Portability and Accountability Act (HIPAA)

Except in unusual circumstances, individuals have the right to review and obtain a copy of their protected health information in a counselor’s “designated record set.”

The designated record set is that group of records that is used to make decisions about individuals.

The rule makes an exception for “psychotherapy notes.” A psychotherapy note does not include: Medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

Client Rights and Welfare“There are three global issues that require one to breach confidentiality. Counselors should know their state laws that apply to minors and breaching confidentiality .”

Exceptions to Confidentiality

In cases of minors, we have both a legal and ethical responsibility to protect them from future harm of continued abuse or neglect.

Many states also require that counselors report abuse, neglect, or exploitation of incapacitated and vulnerable adults.

Privilege is automatically waived when a client presents with a “serious and forseeable harm” to self or others.

Tarasoff vs. Board of Regents of the University of California

Client Rights and WelfareExceptions to Confidentiality

Other instances when the privilege is typically lost include:

When clients introduce their mental condition as an element in a court case.

When the mental stability of either spouse is introduced in a child custody case.

When the counselor is working for the court such as in conducting a court-ordered evaluation examination.

When the client is suing the counselor.

When the counselor believes that the client is in need of immediate hospitalization.

Client Rights and Welfare

Confidentiality and HIV

Counselors with HIV-AIDS clients may face a dilemma between protecting their clients’ right of confidentiality and a duty to warn when clients do not inform their sexual partners of their medical condition.

Two-thirds of the states have legislation regarding limits to confidentiality of a client’s HIV status, therefore, counselors should be aware of the legislation in the state where they practice.

“When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if they are known to be at demonstrable and high risk of contracting the disease.”

Client Rights and WelfareInformed Consent

Three elements must be present for informed consent to be legal:

1.Competence-requires that the person granting the consent is able to engage in rational thought to a sufficient degree to make competent decisions about his or her life. 2.Informed-requires that the individual is given the relevant information about the procedures to be performed in a language that he or she can understand. 3.Voluntariness-requires that consent is given freely by the client.

Client Rights and WelfareComponents of Informed Consent

Counselors explain:

The nature of services provided including the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of the services.

The counselor’s qualifications, credentials, and relevant experience.

The procedures for continuation of services upon the incapacitation or death of a counselor; and other pertinent information.

Client Rights and WelfareComponents of Informed Consent

Counselors take steps to ensure that clients understand:

The implications of diagnosis.

The intended use of tests and reports.

Fees, and billing arrangements.

Confidentiality and its limitations.

Client rights and responsibilities.

Client Rights and Welfare

Variations of Counseling and Counselor Ethics

Couples and Family Group Counseling School Counseling Technology-Assisted Distance Counseling

“The ACA (2005) Code of Ethics states that “the primary responsibility of counselors is to respect the dignity and to promote the welfare of clients” (A.1.a. Primary Responsibility). However, the setting, type of counseling, and the method by which counseling is conducted leads to variations in application.”