Counseling Legal & Ethical Considerations

Counselor Ethics and Responsibilities

Elizabeth Ricks

College of Humanities and Social Sciences, Grand Canyon University

CNL 505: Professional Counseling, Ethical and Legal Considerations

Dr. Elizabeth Krzewski

 

July 15, 2020

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Counselor Ethics and Responsibilities

 

            Certain scenarios in the counseling environment and therapeutic relationship can lead to complicated ethical dilemmas and misunderstandings, as client and counselor do not exist in isolation (Natwick, 2017). Counselors-in-training and licensed professional counselors can practice both effectively and ethically by learning, following, and abiding by the 2014 American Counseling Association’s (ACA) Code of Ethics. Using the ACA Code of Ethics (2014) as a guide, part one of this paper will address both the counselor and client’s rights and responsibilities in the therapeutic relationship, a counselor’s duty to warn and protect (Tarasoff v. Regents) along with issues with confidentiality, and how the counselor keeps client records. Part two will then address counselor self-care, advocacy, and values.

 

Part One

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Client Rights

            One of the primary goals in the counseling relationship is to promote autonomy (independence) in the client. Counselors can help clients do this by informing them of their rights and responsibilities, thus, steering them toward a healthy sense of autonomy and personal power (Corey et al., 2015). A client needs to know throughout the therapeutic process that he or she has the freedom to act and make changes in his or her life and the counselor is there to help guide that process. Counselors must act in the best interest of their clients by emphasizing both nonmaleficence — doing no harm, and beneficence — doing what’s best, and they are less likely to have ethical or legal issues if they make those principles a priority in their practice. Establishing a relationship of trust between the counselor and client is crucial to the success of the client, so in order to build that trust, a counselor must always be loyal and honest with the client and practice in a fair and non-discriminatory manner.

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            Standard A.2.a and A.2.b of the ACA Code of Ethics (2014) addresses the informed consent process and the information disclosed between the counselor and client. They state, “Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor” (American Counseling Association, 2014). The informed consent process should do exactly as its name says, inform, the client of all aspects of the counseling relationship and give them the choice to give consent to services. Informed consent helps the client be more active in the decision-making process and is also a powerful clinical, ethical, and legal tool for both the counselor and client because of the importance of the information being disclosed (Corey et al., 2015). Informed consent should address all aspects of the counselor’s billing procedures as well as client’s right to confidentiality and the limitations and exceptions connected to it. The Health Insurance Portability & Accountability Act of 1996 (HIPAA) should also be addressed during the informed consent process because it explains the client rights regarding his or her privacy if records are transferred.

Finally, a counselor shouldn’t practice outside of his or her competence level and during the informed consent process should share with the client his or her qualifications, credentials, relevant experience, and approach to counseling (American Counseling Association, 2014). Informed consent helps to answer client’s questions and clarify any confusion about counseling. Informed consent is meant to reduce a client’s anxiety by demystifying the therapeutic process (Fisher & Oransky, 2008).  

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Responsibility to Warn and Protect

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            The Tarasoff v. Regents of the University of California (1976) case and laws that followed address a counselor’s ethical duty to warn and/or protect. According to Corey et al. (2015), “The duty to warn applies to those circumstances where case law or statute requires the mental health professional to make a reasonable effort to contact the identified victim of a client’s serious threats of harm, or to notify law enforcement of the threat. The duty to protect applies to situations in which the mental health professional has a legal obligation to protect an identified third party who is being threatened; in these cases the therapist generally has other options in addition to warning the person of harm.” Some factors counselors should consider when faced with the duty to warn and/or duty to protect are: to try to determine, as best he/she can, if the client is really a danger (to himself/herself or others), and does that take precedent over client confidentiality, and what is in the best interest of all parties involved (Wade, 2015)? Counselors should learn to make a distinction between a client who makes a threat by communicating an intent to harm versus one who poses a threat (planning a violent act) and then act according to the law (Johnson, 2014).  

            Confidentiality and its ethical components, exceptions, and limitations are all part of the counseling process. The ACA Code of Ethics Standard B.1.c states, “Counselors protect the confidential information of prospective and current clients. Counselors disclose information only with appropriate consent or with sound legal or ethical justification.” This is followed by the standards defining when there are exceptions to confidentiality, e.g. Standards B.2.a: Serious and Foreseeable Harm and Legal Requirements, B.2.b: Confidentiality Regarding End-of-Life Decisions, & B.2.c: Contagious, Life-Threatening Diseases. These standards become the focus and should all be considered when a counselor’s duty to warn and protect come into play.

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            The state of Arizona has a duty to warn and a duty to protect. If the client has identified a specific person, including himself or herself, that he or she plans to harm, or a specific group, and the client has the intent, a plan, and the means (weapon, medication, etc), then a counselor practicing in Arizona is bound by the Tarasoff laws and must warn the identified person, group, family members, and/or law enforcement of the plan. Ethical issues of confidentiality and privacy will be apparent, but the counselor should abide by the law and always protect life (NCSL, n.d.).

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Client Record-Keeping

         

  The ACA Code of Ethics Standard A.1.b states, “Counselors create, safeguard, and maintain documentation necessary for rendering professional services…Counselors take reasonable steps to ensure that documentation accurately reflects client progress and services provided.” Records and documentation are also addressed in Standards B.6.a and B.6.b, reiterating that counselors create and maintain records and also keep them in a safe and secure place (American Counseling Association, 2014). Upon the initial intake appointment, the client has rights that need to be upheld and adequate record-keeping is one of them. Clinical documentation serves two purposes: to provide the best service possible and to provide evidence of a level of care congruent with the standards of the profession (Corey et al., 2015). Proper documentation shows treatment plans, client progress or non-progress which can all aid in serving the client. Proper record keeping protects counselors because it can demonstrate that adequate care was provided to the client (Corey et al., 2015). Keeping accurate and detailed records not only protects the client and the client’s rights, but it also protects the counselor from liability, by showing proof of care, e.g. topics/issues discussed, exercises/interventions used, and treatment plans, etc. Proper documentation is an ethical, legal, and clinical responsibility that every counselor should take seriously.

 

Part Two

 

Self-care

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            Regularly listening to the challenges and struggles people face has the potential to bring even the most positive person down. Counselors can help prevent impairment and burn out by practicing self-care and self-compassion. Counselor impairment is addressed in Standard C.2.g of the ACA Code of Ethics (2014). It states, “Counselors monitor themselves for signs of impairment from their own physical, mental, or emotional problems and refrain from offering or providing professional services when impaired” (American Counseling Association, 2014). The ACA Code of Ethics (2014) also states, “Counselors engage in self-care activities to maintain and promote their own emotional, physical, mental, and spiritual well-being to best meet their professional responsibilities.” (American Counseling Association, 2014). Self-compassion can enhance counselor well-being, counselor effectiveness, and therapeutic relationships with clients (Patsiopoulos & Buchanan, 2011). It is critical for counselors to practice self-care and self-compassion to keep themselves healthy and happy, both mentally and physically, so they can better help the clients they serve to be healthy and happy too.

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I would hope to maintain a healthy balance between my professional and personal life by not over scheduling and having manageable office hours. I will try to hold tight to my schedule and keep a clear boundary between my work life and personal life. I will also continue practice self-care and do those things that keep me balanced and make my heart happy. Some self-care activities I enjoy doing and plan to continue are the following: spending time with my family and friends, exercising and staying physically active, reading or listening to audio books, listening to music, watching movies, and attending, serving, and staying active at church. Some self-care activities I haven’t done yet but would like to implement into my life are practicing yoga and meditation.

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            I do agree with the concept of counselors being counseled. I have no problem with it and would actually take advantage of it if it were offered or required where I work. Due to my own personal experiences, I know the benefits of having someone, an outside party, not in my family/friend circle, listen to me talk through whatever problem or issue I’m experiencing, and then share their observations and advice. Seeing a counselor has helped me be more balanced and stable, so I think it would only help me be that way as a counselor. One red flag I can identify about myself right now is, if I let myself, I can get sad and be down, quite easily, so a challenge I know I will face is to not let the struggles and sadness of my clients affect my overall well-being. I hope that I can learn to keep the tougher parts of my professional life separate from my personal life.

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Advocacy

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            Standard A.7.a of the ACA Code of Ethics states, “When appropriate, counselors advocate at individual, group, institutional, and societal levels to address potential barriers and obstacles that inhibit access and/or the growth and development of clients.” (American Counseling Association, 2014). The American Counseling Association’s Government Affairs web page, “Take Action” option allows members/constituents to reach out to legislators and to voice concerns, frustrations, or support about current issues in the mental health world. ACA’s VoterVoice option makes it easy for members to contact various legislators about counseling issues at the state and federal level. Legislators should pay attention when they hear from constituents, just like the phrase “the squeaky wheel gets the grease” constituents who make noise will (hopefully) get the attention they want. There are current counseling issues listed at the bottom of the page. The ACA will contact legislators directly or ACA members can enter their zip code and be connected to them directly. One issue I’d be interested in advocating for is to renew the Covid-19 National Emergency Declaration — Provide Greater Access to Mental Health Services. (American Counseling Association, n.d.).

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Counselor Values

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            Two ethical standards that relate to the issue of Eleanor, the 87 year-old with terminal cancer, who wants to end her life are Standard B.2.a and B.2.b, both exceptions to Standard B.1.c Respect for Confidentiality. B.2.a says that confidentiality does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm. B.2.b. states, “Counselors who provide services to terminally ill individuals who are considering hastening their own deaths have the option to maintain confidentiality depending on applicable laws and the specific circumstances of the situation…” (American Counseling Association, 2014). So, this standard says I would have the option to say something to her family or loved ones, but in the state of Arizona, I am required to say something under the duty to warn/protect laws. I will inform Eleanor, that regardless of her cancer, I am bound by Arizona law to inform her family and/or loved ones of her plans to end her life. I would suggest her family come in with her, so we could discuss everything together and hopefully brainstorm ways to help her be comfortable before she passes away. A personal value that presents itself, in this scenario, is that I believe that God determines when someone dies, we don’t make that choice, so I don’t necessarily agree with Eleanor trying to speed up the process and especially doing it without discussing it with her family. That being said, I can’t begin to understand what Eleanor is feeling and experiencing, since I have not had cancer, and I don’t want to minimize what she is going through. I would want to do my best to see that she be given the best care available and be in as little pain as possible.

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            The second scenario I chose is the couple having extramarital affairs. Standard A.4.b of the ACA Code of Ethics speaks of personal values, “Counselors are aware of —and avoid imposing — their own values, attitudes, beliefs, and behaviors…respect the diversity of clients, especially when the counselor’s values are inconsistent with client’s goals.” (America Counseling Association, 2014). This one would be a challenge for me because personally, I believe in total fidelity/monogamy in marriage and would expect my spouse to practice fidelity/monogamy too. I’ve been in marriage when my spouse wasn’t monogamous. I believe infidelity only adds a lack of healthy communication and total trust between spouses, both crucial to the foundation of a happy marriage. Because I can’t impose my personal values about marriage, I would first talk to them about what they think are the causes of their marital difficulties and explore those issues, e.g. communication, finances, children, etc. and see how that progresses and if there are any improvements. If there are ways to interject studies or statistics regarding fidelity in marriage and levels of happiness, I may try to share my research, for their information only, not to push or impose, but to see and consider.

 

Conclusion

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            When considering ethical dilemmas or if ethics, in general, are in question, it is imperative to look at the big picture and assess the situation from different angles and perspectives as they are rarely black or white (Wade, 2015). While there are many ethical aspects, factors, and angles to consider with each counseling scenario we encounter and there is rarely one right answer to an ethical dilemma (Forester-Miller, 2016), the primary objective remains to protect and respect the client and his or her rights, and do our best to empower the client to be independent, do no harm to them, always promote their wellness, be fair, and trustworthy.

 

References

 

American Counseling Association. (2014). 2014 ACA Code of Ethics. https://www.counseling.org/resources/aca-code-of-ethics.pdf

American Counseling Association, (n.d.). Government affairs & take action. https://www.counseling.org/government-affairs/actioncenter

Corey, G., Corey, C., Corey, M.S., & Callanan, P. (2015). Issues and ethics in the helping professions. Client Rights and Counselor Responsibilities (pp. 152-201). Cengage Learning.

Fisher, C. B. & Oransky, M. (2008). Informed consent to psychotherapy: Protecting the dignity and respecting the autonomy of patients. Journal of Clinical Psychology in Session, 64(5), 576-588. https://eds-b-ebscohost-com.lopes.idm.oclc.org/eds/detail/detail?vid=4&sid=053d0317-5384-401a-ae3c-cc5561814a9d%40pdc-v-sessmgr01&bdata=JnNpdGU9ZWRzLWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#AN=RN227826391&db=edsbl

Forester – Miller, H., Davis, T. E., (2016). Practitioner’s guide to ethical decision making (Rev. ed.). http://www.counseling.org/docs/defaultsource/ethics/practioner’s-guide-toethical-decision-making.pdf

Johnson, R., Persad, G., & Sisti, D. (2014). The Tarasoff rule: The implications of interstate variation and gaps in professional training. The Journal of the American Academy of Psychiatry and the Law, 42(4), 469-477. http://jaapl.org/content/42/4/469

National Conference State Legislatures. (n.d.). Mental health professionals duty to warn.  https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

Natwick, J. (2017). Family ties: Tackling issues of objectivity and boundaries in counseling. Counseling Today: American Counseling Association, 59(10), 16-18. https://eds-b-ebscohost-com.lopes.idm.oclc.org/eds/detail/detail?vid=3&sid=59bc41a8-0ddd-474d-aafe-8e84ebe6ebe2%40sessionmgr103&bdata=JnNpdGU9ZWRzLWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#AN=122364557&db=ehh

Patsiopoulos, A. T., Buchanan, M. J. (2011). The practice of self-compassion in counseling: A narrative inquiry. Professional Psychology: Research and Practice, 42(4), 301-307. http://dx.doi.org.lopes.idm.oclc.org/10.1037/a0024482 

Wade, M. E. (2015). The counselor’s duty to report. Counseling Today: American Counseling Association. Retrieved July 11, 2020, from ethics_february_2015_duty-to-report.pdf