Chapter 16

1. Chapter 16 Ethical and Legal Aspects of Counseling

2. Ethical and Legal Aspects • Counseling is an active profession based on values which are “orienting beliefs about what is good…and how that good should be achieved” (Bergin, 1985). • Values are at the core of counseling relationships. • Counselors by necessity must be dependent on codes of ethics as well as external codes of law. • Counselors who are not clear about their values, ethics, and legal responsibilities can cause harm despite their best intentions.

3. Definitions • Ethics • Normative in nature. • Focus on principles and standards that govern relationships between individuals. • Morality • Involves judgment or evaluation of action. • Associated with such words as good, bad, right, wrong, and should.

4. Definitions • Law • The precise codification of governing standards that are established to ensure legal and moral justice. • Created by legislation, court decision, and tradition. • Does not dictate what is ethical in a given situation – only what is legal.

5. Temptations in Counseling • Physical Intimacy • Titillation of Gossip • Opportunity (if the gamble plays off) to advance one’s career

6. Common Unethical Behaviors • Violation of confidentiality • Exceeding one’s level of professional competence • Negligent practice • Claiming expertise one does not possess • Imposing one’s values on a client • Creating dependency in a client • Sexual activity with a client • Conflicts of interest • Questionable financial arrangements • Improper advertising

7. Professional Codes • Designed to offer formal statements for ensuring protection of clients’ rights while identifying expectations of practitioners. • Designed to provide some guidelines for the professional behavior of members on a personal level. • Protect the profession from government intervention. • Control internal disagreements. • Protect practitioners from malpractice lawsuits. • Helps increase public trust in profession integrity.

8. Limitations of Ethical Codes • General and idealistic – seldom answer specific questions. • Enforcing ethical codes is difficult. • Some legal and ethical issues are not covered in codes. • May be conflicts within the delineated standards. • Codes are historical documents. • Do not address cross-cultural issues. • Do not address every possible situation.

9. Conflicts Within and Among Codes • Counselors must be able to differentiate an ethical dilemma from other types of dilemmas. • Different ethical codes may offer conflicting guidelines. • Conflicts may occur when counselors belong to two or more professional organizations whose codes of ethics differ.

10. Types of Ethical Dilemmas • Confidentiality Role Conflict ** • Role Conflict • Counselor Competence ** • Conflicts with Employer/Institution • Degree of Dangerousness **most difficult to resolve

11. Guidelines for Acting Ethically • Personal and professional honesty. • Acting in the best interest of clients. • Act without malice or personal gain. • Justify an action.

12. Continuum of Reasoning(Van Hoose & Paradise, 1979) • Punishment Orientation – external social standards are the basis for judging behaviors. • Institutional Orientation – believe in and abide by the rules of the institution where employed. • Societal Orientation – decisions are based on societal standards. • Individual Orientation – individual needs receive top priority at this stage. • Principle Orientation – concern for the individual is primary…ethical decisions are based on internalized ethical standards not external considerations.

13. Ethics in Specific Counseling Situations Ethical behavior is greatly influenced by: • The prevalent attitudes in the setting in which one works. • One’s colleagues. • The task the counselor is performing (e.g., diagnosing).

14. Dual Relationships • Counselors may lose their objectivity and clients may be placed in a situation in which they cannot be assertive and take care of themselves. • The thought and emotion that will take place will most likely have an impact on the therapeutic relationship.

15. The Law and Counseling • The law offers few definite answers and there are always notable exceptions to any legal precedent. • The only time that the law overrides a professional code of ethics is when it is necessary “to protect the public health, safety, and welfare.”

16. 1993 Napa County, CA, and Gary Ramona • The legal opinion on which the case was decided was duty to care. • The court held that health providers’ legal obligation is to not act negligently.

17. 1996 U.S.Supreme Court Decision in Jaffee v. Redmond • Held that communications between licensed psychotherapists and their clients are privileged and do not have to be disclosed in cases held in federal court.

18. Legal Aspects of the Relationship • Counselors must follow specific guidelines in working with certain populations. • Situations often involve the sharing of information among clients, counselors, and the court system broken down into: • Confidentiality • Privacy • Privileged Communication

19. Exceptions • Most states recognize and protect privileged communication in counselor-client relationships. Exceptions include: • Cases of a dispute between counselor and client. • When the client raises the issue of mental condition in legal proceedings. • Client’s condition poses a danger to self/others.

20. Exceptions • Cases of child abuse or neglect. • Knowledge that the client is contemplating commission of a crime. • During court-ordered psychological evaluations. • For purposes of involuntary hospitalization. • Counselor has knowledge that the client is a victim of a crime. • Cases of harm to vulnerable adults.

21. Group Counseling • As opposed to individuals, “the legal concept of privileged communication generally does not apply in group and family counseling” (Anderson, 1996).

22. Civil and Criminal Liability • Liability – concerned with whether counselors have caused harm to clients. • Directly connected to: • Malpractice • Negligence • Classified under two headings • Civil Liability – acting wrongly toward another or for failing to act when there is a recognized duty to do so. • Criminal Liability – working with a client in a way the law does not allow.

23. Client Records and Rights • Implied Rights – linked to substantive due process (constitutional rights). • Explicit Rights – focus on procedural due process. • Basically, records should contain “all information about the client necessary for his or her treatment.”

24. Categories of Records Documents • Identifying or Intake Information • Assessment Information • Treatment Plan • Case Notes • Termination Summary • Other Data

25. Third Party Reimbursement It is critical for counselors who receive third-party reimbursement to make sure that their clients’ records refer to progress in terms of a treatment plan and a diagnosis.