Ethical and Legal Issues

in Counseling Practice

COUN 540: Foundations

Spring 2009
 Tonights Goals
Discuss how ethics and law guide and govern our
professional behavior similarities and differences

Introduce ethical codes - ACA Code of Ethics

Major ethical/legal issues we encounter in practice

informed consent confidentiality duty to warn

To introduce the concept of the Ethical Decision Making

Model and explore its use
 Ethics and Law
Governing our Professional Practice
Law Ethics

Created by legislature and Rooted in philosophy,

courts created by professional
associations

Govern citizens (federal, Govern members of

county, state) profession guide practice

Represent minimal Represent ideal standards

standards

Penalty fines, jail Penalty loss of license,

professional sanctions
 Criminal vs Civil Law
Criminal Go to Jail, associated professional sanctions
Example: Sexual contact with client is a
Felony 4th Degree

Civil Monetary consequences, associated professional

sanctions

Malpractice door opens when it can be proven that the

counselor had:
1) A duty
2) That duty was breeched
3) The client experienced damage
4) It was the breech of duty that
caused the damage
 When Questions of Law Arise
Consider it to be a legal issue if
*lawyers are involved
*the matter has come to court,
*the counselor may be in danger of being
accused of misconduct

Avoid being impulsive take time to think before

reacting (e.g. receipt of subpoena)

Talk to a lawyer (American Counseling Association) when it is,

or might be a legal issue to determine your next
appropriate action
 When Ethics and Law Collide
H.1.b. Conflicts Between Ethics and Laws
If ethical responsibilities conflict with law,
regulations, or other governing legal
authority, counselors make known their
commitment to the ACA Code of Ethics
and take steps to resolve the conflict.
If the conflict cannot be resolved by such
means, counselors may adhere to the
requirements of law, regulations, or other
governing legal authority.
ACA Code of Ethics (2005)
 ACA Code of Ethics
Revised in 2005
Section A: The Counseling Relationship
Section B: Confidentiality, Privileged
Communication, Privacy
Section C: Professional Responsibility
Section D: Relationship with Other Professionals
Section E: Evaluation, Assessment and
Interpretation
Section F: Supervision, Training and Teaching
Section G: Research and Publication
Section H: Resolving Ethical Issues
 Functions of Ethical Code
First and most important to safeguard welfare of client
and society

Define ethical conduct in a profession to inform and

educate members

Define Standards of Practice important in legal actions

Create a means by which members are held accountable

for actions protecting public

Offer a way to promote professional growth, best practice

 Commonalities in
Mental Health Ethical Codes
*Priority placed on welfare of clients & society
*Competency
*Personal awareness of own values, biases
*Prohibition on sexual involvement with clients
*Research criteria to protect subject/client rights
*Responsibility to protect confidentiality
*Helping clients reach self-determined goals
*Ongoing professional development
*Obligation to confront colleagues demonstrating
unethical, illegal, incompetent practice
*High personal standards of integrity
Kotter & Brown (1992)
 Limitations of Ethical Codes
Broad - The mental health field is so diverse, with counselors and
client populations varying broadly in terms of role playedthis leads
to creations of codes that must be broad in scope to accommodate
application in many different situations

Changeable - Codes must adapt and change as new issues arise

(e.g. HIV; technology)

Clarity of Guidance - Guidelines provided by codes are not always

clear and call for a systematic manner of decision making they are
not cookbooks for perfect decisions in every situation

Conflicts between Codes - in some cases, conflicts between

professional associations
 Ethical and Legal Concerns:
Major Areas of Focus
Informed Consent
Confidentiality
Duty to Warn/Duty to Protect
Record Keeping
Technology
Managed Care
 Informed Consent
An opportunity for building foundations for a truly
collaborative and effective counseling
relationship - defines the relationship

Promotes idea of clients as informed partners in

the counseling process they know the rules
and participate willingly

As important with children as with adults

Beginning and throughout the relationship

written and discussed
 Confidentiality/Privacy
The trusting foundation on which the counseling
relationship is build
Confidentiality versus Privilege

Duty to protect private communication in the

therapeutic relationship

HIPPA rules have important impact

Place where law and ethics may collide (e.g.

mandatory reporting of child abuse)
 Challenges in Confidentiality

Subpoenas
Counseling Minors
Substance abuse
Group/Family Counseling
Offenders
After Death of Client
Technology
 Duty to Warn
Societal interest in protection may over-ride confidentiality
duty to client
Concept of vulnerable population

Domestic violence laws vary from state to state re

mandatory reporting but when child/elder involved
line is crossed

Past crimes usually not a duty though a clients risk to

others may trigger duty to warn

AIDS/HIV ACA Code B.2.b.

 Duty to Protect
Threat of harm to self and threat of suicide
raise affirmative duty
Risk Assessment essential

Children especially concerning. Case of Nicole Eisel brings

duty to school setting - minor

Other threats of self harm (e.g. cutting)

End of life issues

 Record Keeping
Good record keeping part of Standard of Practice
know law and regulations inc.

Health Information Protection and Portability Act

(HIPPA)

Wheeler and Bertrham (2008) identify four

Purposes of Client Records
*Clinical management
*Legal implications for client
*Protection of health info
*Risk management
 Technology

Technological advances are changing how

we define and go about the business of
counselingand introduce a new plate of
potential challenges
e.g. on-line counseling services
electronic media
 Managed Care

Presents a number of issues relating to

counseling practice which relate to potential
for ethical challenges
*diagnosis dependent
*session numbers limited
*confidentiality concerns
 Ethical Decision Making
Counselors must have a systematic model
which can be utilized to reach decisions

Not just following the rulesreal ethical

decision making takes
Reflection & evaluation
Consultation with colleagues
Courage

Best when client can be involved in the process

 The Ethical Decision Making Model
Seven Steps
1. Identify and describe the problem (legal, ethical, and
professional) and potential issues involved
2. Refer to the ACA Code of Ethics is there a fit?
Consider law and regulation that may apply
3. Determine the nature and dimensions of the dilemma
consult with colleagues, literature review4. Identify
possible courses of action
5. Consider potential consequences of each
course of action and choose the best one
6. Evaluate the selected course of action
7. Implement the course of action
 Ethics vs Morality
Morality is associated with a personal belief system the
basis by which we decide what is right and what is wrong

Grounded in culture - arising from a social context, from

the
values we learn, the beliefs we have about living
Differences within and between a reality look out
for those broad brushes

Historical forces influence the moral judgments of the time

e.g. perception of children and discipline
 Ethical Reasoning
The Five Moral Principles
The Five Moral Principlesfunction as a true cornerstone
of ethical reasoning and serve as guides when counselors
face difficult questions regarding a course of action:

Autonomy
Nonmaleficence
Beneficence
Justice
Fidelity

Used to evaluate the course of action we should take

note not unusual for there to be conflict between moral
principles
 Autonomy
Respecting Clients Right to Independence
Clients right to drive her/his own busmake own decisions

Clients independence, freedom to choose & direct ones

own actions we avoid fostering dependency in
counseling relationships

Centered in respect for clients values and culture

Considerations of competence - decisions that are rational

and solid safe for self/others, throws a wrench

Decision making involves consideration of impact of actions

on others
 Nonmaleficence
To Cause No Harm

A major concern in ethical decision making and a

long held belief as the most important of the
ethical
principles thank you Hippocrates

Nonmaleficence = not causing harm to others.

Avoid practices that have potential to harm

Includes the concept of not harming self or acting

in ways that would cause harm to others
 Beneficence
To Do Good

Counselor's responsibility duty - to promote

and to contribute to the welfare of the client.

Means to do good, to be proactive and also to

prevent harm when possible (Forester-Miller &
Rubenstein, 1992).

First priority, do no harm, second priority is to

do good client should be better at end of
relationship than at the beginning
 Justice
Fair and Nondiscriminatory
Fair is not synonymous with the same

Quality of services; matters of access to service; fees; time

allocation

Involves examining the interests and needs of both the

client and those involved and impacted by her/his actions

Client needs considered in context to those of others

The presence of stereotypes suggests absence of justice

 Fidelity
Loyalty & Honor to Commitments Made

Creating a therapeutic climate in which trust

can flourish makes client growth and
progress possible

Promises made in good faith and kept

Obligations met