Chapter 20
Legal and Ethical Considerations for Counselors
CHAPTER OVERVIEW
Dilemmas in counseling situations may be the result of ethical, professional, or legal concerns. Counselors may be frustrated by the lack of unequivocal answers to the dilemmas they face. Furthermore laws and guidelines concerning children’s rights may be even more ambiguous. This chapter contains a review of ethical and legal issues that often arise in counseling children. An ethical decision-making model and case are included.
CHAPTER OBJECTIVES
After completing this chapter, the student will be able to:
1. Discuss the difference among ethical, professional, and legal issues in counseling.
2. Explain privacy, confidentiality, and privileged communication.
3. Outline a response to child abuse.
4. Summarize steps to resolving uncertainty in ethical practices.
CHAPTER SUMMARY
Counselors must routinely take into account the ethical, profession, and/or legal considerations of the situations that they encounter. Ethical issues revolve around personal and professional standards of moral duty and obligation. Ethics guide professionals about principled conduct in their work, provide accountability, and create ways to improve the profession. Ethical codes are written in broad terms and serve as starting points for making decisions.
Professional issues are technical, procedural, or cultural standards that members of a profession are expected to accept. Legal issues are related to federal, state, and municipal standards of practice as regulated by law. Legal standards reflect the minimum acceptable societal standard. Stone and Dahir explain that laws require counselors act as any reasonably competent professional would act. When standards seem to be contradictory, the counselor is left to determine the most prudent action. With children, those decisions become complex.
Meara, Schmidt, and Day urged the integration of principle ethics with “virtue ethics,” or character ethics. The focus of principle ethics has been on duty, laws, rules, obligations; the focus of virtue ethics is on the human character. Welfel lists five personal virtues that are critical values in counseling: integrity, prudence, trustworthiness, compassion and respectfulness.
Remley and Herlihy suggested that professional practice is built on the following foundations: (1) intentionality, wanting to do the right thing for those being served; (2) moral principles of the helping profession, with shared beliefs of autonomy (respecting freedom of choice), nonmaleficence (doing no harm), beneficence (being helpful), justice (being fair), fidelity (being faithful), and veracity (being honest); and (3) knowledge of (and skill to apply) ethical, legal and professional standards. They also encouraged counselors to have the courage of their convictions.
Counselors will find a decision-making model helpful when they encounter ethical dilemmas. One such model is outlined as follows:
1. Develop ethical sensitivity to the moral dimensions of counseling.
2. Identify and define the problem. Clarify facts, stakeholders and the socio-cultural context of the case.
3. Think about your own emotional reactions.
4. Apply fundamental ethical principles and theories to the situation. (autonomy, nonmaleficence, beneficience, justice, fidelity, veracity). Define the central issues in the dilemma and possible options.
5. Refer to professional standards, relevant laws and regulations and current ethics literature.
6. Consult with colleagues or experts.
7. Involve the client in the decision-making process.
8. Identify desired outcomes and action to achieve those outcomes.
9. Consider different courses of action.
10. Choose and act.
11. Reflect on the actions taken (Remley & Herlihy, 2005, p. 13; Welfel, 2006, 22).
These tips may serve as guidelines across any dilemma.
· Always act in the best interest of the client;
· Always act in good faith and without malice;
· Be aware of your personal values, attitudes and beliefs; and
· Refer clients to another counselor if personal characteristics interfere with your effectiveness as a helper (ASCA, p. 1).
Counseling minors is an ambiguous practice. Statutes do not always agree with court decisions or with codes of ethics. Lawrence and Kurpius concluded that safeguarding basic rights for children involve balancing three social systems: (1) the state, which must accept the imperative of maintaining the safety and rights of children; (2) the parent or family, interested in their freedom to raise their children without interference; and (3) the minor child, interested in self-protection from perceived harm, preservation of privacy, and maintenance of dignity. The legal status of minors can be found in the book State Minor Consent Laws: A Summary; summaries from the Guttmacher Institute and information from the American Bar Association. Those sources include data about health privacy, disclosure to parents and other laws that affect young people.
The American Counseling Association’s (ACA) Code of Ethics and Standards of Practice outlines the responsibilities of counselors toward their clients, colleagues, workplace, and self. Discussions in the text of the ethical issues of competence, parental permission, confidentiality, and child-abuse reporting are based on the ACA Code.
In order to be competent to work with children, counselors must be thoroughly familiar with child and adolescent development, developmental tasks, family dynamics, and interventions designed for a particular age and stage; they must participate in specialized education, training and supervised practice; they must participate in continuing education and stay current; and they must provide only services for which they have been trained and had supervised practice.
Informed consent, or formal permission given by a client, is necessary for the beginning of counseling and throughout the relationship. In most settings parental permission is necessary to comply with the informed consent obligations. Remley and Herlihy explained that unless a federal or state law says otherwise, school counselors do not have an obligation to attain a parent’s permission. They still may consider it good practice to do so unless potential danger to the minor exist. Counselors outside of school, however, must obtain parental permission, with a few exceptions such as providing court order treatment, counseling with a mature minor, or (in some states) intervening in extreme emergency situations. When permission is required, the custodial parent of a divorced couple must provide the consent for counseling of their minor child. Documents such as written disclosure statements or counseling brochures are recommended.
Privacy is the right that ensures that people may choose what others know about them. Confidentiality refers to a professional ethical responsibility to respect and limit access to clients' personal information. Counselors should inform their clients of the limits of confidentiality at the beginning of a counseling relationship. The information should be given both orally and in a written professional disclosure statement signed by the client, parents (if necessary), and the counselor. Remley and Herlihy suggested that counselors consider these facts about children and confidentiality:
· Younger children have little understanding of confidentiality or need for privacy.
· Preadolescents and adolescents may have heightened needs for both.
· Some children may want their parents to know of the content of counseling sessions.
· Children sometimes disclose something to an adult hoping that the adult will intervene.
· Children’s reason capacity may limit their ability to make decisions in their best interest.
They also suggested ways to cope with requests when there is a conflict between a parent’s desire for information and the child’s strong resistance to that disclosure.
Privileged communication refers to a legal concept designed to protect the rights of the client to withhold testimony in court proceedings. Because there is great variation among the laws in all 50 states, it is imperative for counselors to be thoroughly familiar with the statutes that govern their practice. Exceptions to the client’s right of privileged communication are enumerated.
Counselors must also be concerned with confidentiality of files. Parents and students of legal age were granted the right to inspect their school records and to prevent unlimited access to their records in the federal 1974 Family Educational Rights and Privacy Act (FERPA; also known as the Buckley Amendment). Personal logs, treatment records and directory information are excluded. The counselor may keep a personal file of notes that can remain confidential as long as they have been seen by no one else and have not been discussed with anyone. Remley recommended that factual information be kept separate from the subjective section and that they be written carefully. Counseling records should include identifying information, assessment data, treatment plans, case notes, termination summary and miscellaneous information such as consent forms, correspondence and releases.
Counselors may be required to breach confidentiality when information is subpoenaed in states where the clients are not protected by a privileged communication law. (In these cases the counselor may be given the opportunity to have the judge privately decide whether or not the information will be made public at trial). Examples of other issues or situations, not discussed above, where the counselor is legally and ethically mandated to breach confidentiality include: (1) the counselor’s duty to warn and protect (as decided in Tarasoff v. Regents of the University of California and other court cases) if a client expresses intent to harm self, others, or property; (2) disclosures or reasonable suspicions of current or previous verbal, physical, or sexual abuse; (3) written release signed by an adult client; and (4) necessary supervision of a counseling student.
If a counselor needs to breach confidentiality, the client should be informed and invited to participate in the process. The counselor should explain why confidentiality must be broken, summarize what must be done and said, and encourage the client to take responsibility for assisting in resolving the dilemma. The counselor should consider establishing protocols for all situations when confidentiality must be broken and should proceed with care. Protocols should include current standards of care, list of treatment alternative, full informed consent, consultation guidelines to all involved and school and/or agency policies.
Group leaders need to give accurate information about confidentiality so members may decide how much information they want to disclose during group counseling. While confidentiality among group members cannot be guaranteed, its importance should be stressed.
Child abuse reporting is mandated in all 50 states. Failure to report child abuse is one of the most common breaches of ethical standards. When suspicion of child abuse exists, counselors should confer with colleagues and seek legal advice before reaching a decision not to report. Welfel’s suggests a “well-lit room standard” in which counselors consider whether they would be proud to communicate their decision to the professional peers and expect approval of their position.
KEY CONCEPTS
1. The distinctions between ethical, legal, and professional issues are important.
2. Confidentiality and privileged communications are concepts related to protecting a client's privacy in counseling relationships.
3. When counseling children, ethical issues that frequently emerge include competence, parental permission, confidentiality, and child-abuse reporting.
4. Counselors need to be well informed regarding legal and ethical reasons and guidelines for breaching of confidentiality.
5. Many ethical situations have no right solution; the final answer depends on the setting, the philosophy of the supervisor, the interpretation of the law by local or state authorities, potential advantages or disadvantages of the situation, and the risks to the counselor and the client.
6. Uncertainties concerning interpretations of ethical practices may be resolved by consultation with other professionals or local, state, or national professional ethics committees.
KEY TERMS, CONCEPTS, AND PERSONALITIES
Confidentiality – The professional duty to limit or prohibit access to a client’s personal information.
Ethics – Ways of assessing the moral dimension of choices and behaviors
Family Educational Rights and Privacy Act (FERPA) – A federal law, sometimes referred to as the Buckley Amendment that provides parents and students of legal age specific rights with regard to their records.
Informed consent – The permission given by a client for counseling or for other intervention/activity after that client has been thoroughly advised of the responsibilities of the counselor and of other pertinent information.
Privacy – The right that ensures that people may choose what others know about them.
Privileged communication – The legal right of clients to withhold testimony in court proceedings; with whom and under what circumstances communication is considered to be privileged is determined by state law.
REVIEW QUESTIONS
1. Issues which arise from “personal and professional standards of moral duty and obligation” are considered:
A. legal issues.
B. moral issues.
C. ethical issues.
D. professional issues.
2. Match the following terms with the correct definition:
a. privacy
b. confidentiality
c. privileged communication
A. the professional responsibility to respect and limit access to clients’ personal information
B. ensures people may choose what others know about them
C. the legal rights of clients to withhold testimony in court
3. All of the following are reasons why the counselor must disclose client information except:
A. a court mandates the release of information.
B. a client’s school or place of work requests information.
C. the client needs hospitalization because of a mental disorder.
D. a client admits intent to commit a crime.
4. The following are ways recommended by Remley and Herlihy to cope with a parent request of information about a counselor’s session with their child except:
A. ask the child if he/she will disclose information to the parent.
B. talk with the parent and child together and hope one of them will resolve the issue.
C. refuse to disclose the information after having informed your supervisor.
D. respond immediately with any requested information since the client is a minor.
5. A code of ethics seeks to serve all of the following purposes except:
A. guide professionals in their work.
B. provide standards to assist in incidents where professionals must defend their actions.
C. contain the answers and procedures to all questionable situations.
D. assist professionals in making difficult decisions.
6. Safeguarding basic rights for children involves balancing all of the following social systems except
A. the school that is loco parentis
B. the state that maintains safety for citizens
C. the family interested in freedom to raise their children
D. the child
7. Which of the following is a tip for resolving ethical issues according to the American School Counselor Association?
A. ask the child what to do
B. consider the political ramifications of your action
C. refer to the latest journal article about the issue
D. act in good faith and without malice
8. To be competent to counsel children, counselors must
A. be a parent
B. have been a teacher
C. having specialized training and supervised practice
D. take a course in play therapy
TRUE/FALSE
1. ___ It is the right of the client to waive privileged communication.