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Manhal-Baugus, M. (1996). Reducing risk of malpractice in chemical dependency counseling.
Journal of Addictions & Offender Counseling, 17, 35-42.
REDUCING THE RISK OF MALPRACTICE IN
CHEMICAL DEPENDENCY COUNSELING
An increasing amount of litigation is occurring within the mental health field, including the
chemical dependency profession. A malpractice lawsuit can have devastating effects on the
practice of an unsuspecting professional. Even suits with absolutely no merit that are filed can
have a catastrophic impact on a therapist's professional reputation, personal life, and financial
stability.
This article explores the issue of malpractice and the ethical codes that are relevant to chemical
dependency counselors. In addition, we explain three ethical and legal areas that are important
for chemical dependency counselors to fully understand and follow: (a) informed consent, (b)
confidentiality, and (c) working within and improving one's level of competence and area of
expertise.
These issues are the most common sources of problems for addiction specialists. Chemical
dependency counselors can reduce the risk of malpractice by understanding and following the
ethical codes and legal laws to the best of their ability.
MALPRACTICE
Malpractice is the "failure to render professional services to the degree of skill and learning
commonly applied by the average prudent reputable member of the profession; as a result, there
is injury, loss, or damage to the recipient of those services or to those entitled to rely on them"
(Bednar, Bednar, Lambert, & Waite, 1991, p. 37). In short, malpractice is the negligent execution
of professional duties.
In the mental health profession, malpractice consists of four elements that must be proved before
liability can be found: (a) the therapist owed the client a duty, (b) that duty was breached, (c) the
client suffered injury, and (d) the injury was caused by the therapist's breach. The duty is
determined by the level of knowledge, skill, judgment, and expertise others in the same
profession use (Bednar et al., 1991). If a counselor knows and adheres to the ethical guidelines
and acts as a reasonable professional, she or he can reduce legal and ethical difficulties.
ETHICAL CODES
The National Association of Alcoholism and Drug Abuse Counselors (NAADAC) is the
governing body that certifies individuals as addiction counselors, and many chemical
dependency counseling professionals strive to achieve certification through this organization.
NAADAC (1987) has published the Code of Ethics, a set of specific, ethical standards for
substance abuse counselors, and it is a duty of all chemical dependency counseling specialists to
know and practice this code of ethics to the best of their ability.
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The Code of Ethics and Standards of Practice (American Counseling Association [ACA], 1995)
and the Code of Ethics (NAADAC, 1987) contain similar fundamental principles, such as the
following:
1. Information discussed by clients in counseling sessions remains confidential except when
there is imminent danger to themselves or to others, especially children.
2. Clients are provided the opportunity of informed consent.
3. Helpers always work within the boundaries of their limitations. Every counselor and therapist
has limitations and should not attempt to deal with clients or issues for which they are not
qualified.
These principles address three ethical situations in which substance abuse and dependency
specialists face many difficulties and dilemmas: informed consent, confidentiality, and working
within one's competence. Three vignettes illustrate these dilemmas. After each vignette is a
discussion of the relevant legal and ethical issues that are important to know to reduce the risk of
malpractice.
VIGNETTE 1: INFORMED CONSENT
A chemical dependency counselor who works in a for-profit hospital is conducting an
intake on an intoxicated individual. The client is coherent and can answer questions, but
he is still considered to be impaired. He signs the consent-to-treatment form without
hesitation after the counselor quickly runs through the general rules and regulations.
However, the next day he realizes that he is not allowed visitors for one week. He
becomes upset and leaves the program because he feels he was tricked by some of the
rules.
Informed consent refers to the right of individuals to be informed and to make autonomous
decisions about any treatment they receive (Arthur & Swanson, 1993). It is a legal doctrine
requiring mental health professionals to disclose adequately to clients the risks, the advantages,
and the alternatives of treatment. This requires three components: (a) capacity, which refers to
the client's ability to make rational decisions; (b) comprehension, which means that clients must
be able to understand the informed consent; and (c) a voluntary commitment from the client
(Ahia & Martin, 1993). Basically, informed consent is when a client understands and voluntarily
agrees to the conditions of treatment.
Understanding the nature of the procedures, and all the other information the counselor discloses,
is not a simple issue in treating chemically dependent individuals because of the effects of moodaltering chemicals. Many times, prospective chemical dependency clients have taken alcohol,
other drugs, or both before giving their consent and therefore do not understand the information
given to them.
Two exceptions to informed consent are client incompetence and emergencies. Sometimes
clients are admitted to a program in an intoxicated state and cannot comprehend explanations and
forms. Ethically, treatment cannot be denied because of their incapacity. As straightforward as
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this proposition is, establishing criteria of incompetence and identifying the incompetent person
is a challenging task. Courts do not even agree on what constitutes incompetency (Bednar et al.,
1991).
Substance abusers are also often admitted into programs in a state of crisis or emergency. For
example, they may be experiencing severe withdrawal symptoms or hallucinations. In these
cases, the counselor may admit and administer treatment to the client without the client's consent
because the consent can be considered implied. When the urgency of the situation has passed,
informed consent should immediately be obtained to avoid legal difficulties. For example, a
highly intoxicated client may wake up the next morning in treatment and be extremely angry that
he was admitted into treatment during a blackout. It is necessary to obtain informed consent,
document the events, and fill out the necessary forms.
Related to the concept of understanding is the concept of voluntary consent. This poses another
unique difficulty for chemical dependency counselors, because many of the clients are referred to
treatment by the courts or parole boards, or coerced into it by significant others. Also, once in
treatment, coercion often exists in the agency or the facility. For example, an inpatient is told to
attend group or face restriction of visitors and privileges. Another example is that a parolee may
not miss a meeting or refuse to give a urine sample without the threat of parole violation.
It is important to provide as much choice to the clients as possible and allow them to gain more
control over their treatment. The counselor may even recommend foregoing treatment until the
client requests treatment for himself or herself not because he or she is forced by a judge, a
significant other, or the children. However, a basic, underlying truth is that the counselor's
supervisor and the administration of the facility need to fill the beds. The counselor should do
everything possible and document efforts to make treatment as voluntary as possible.
The doctrine of informed consent is a product of social and legal dedication to the right of selfdetermination and autonomy. It is slowly infiltrating the mental health fields, and legal trends
suggest that therapists will be directly subject to informed consent actions in the immediate
future. State statutes that apply to informed consent have already emerged (Bednar et al., 1991).
Knowing and practicing the informed consent guidelines not only protects clients but also
alleviates ethical and legal problems.
VIGNETTE 2: CONFIDENTIALITY
A counselor who works in a prison program learns in an individual session that one of the
inmate-clients has recently received barbiturates from an outside source and has begun to
use these drugs at night to get to sleep. The client has been cooperative and open during
his treatment. He has progressed more than any other client in the program. He is to be
released in one month. The client is just beginning to learn about and practice relapse
prevention strategies. He desperately wants to stop a complete relapse; this is why he told
his counselor about the drugs. The counselor knows that if this information were
reported, the client would not be released because of prison infractions.
The counselor is wondering if this information is protected by the ethical codes of
confidentiality. Because he works for the prison, he is obligated to inform the authorities of any
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potentially dangerous situations. However, the client is also protected by the confidentiality
ethical codes.
Confidentiality is another fundamental ethical area in which chemical dependency counselors
experience ethical and legal difficulties. Confidentiality is a legal and ethical responsibility and a
professional duty that demands that information obtained from a private interaction with a client
not be shared (Arthur & Swanson, 1993). Professional ethical standards mandate this behavior
except when there are special, compelling circumstances or there is a legal mandate (Arthur &
Swanson, 1993). To protect the client, oneself, and the profession as a whole, the chemical
dependency counselor needs to understand the ethical and legal guidelines and the exceptions to
these. Counselors also need to know which disclosures require consent and which do not. A
review of federal regulations, ethical guidelines, and legal and ethical exceptions of
confidentiality for chemical dependency counselors has been presented in a previous issue
(Manhal-Baugus, 1996).
Legal Regulations
The Federal statutes and the set of implementing regulations are known as the Confidentiality of
Alcohol and Drug Abuse Patient Records (Confidentiality of Alcohol and Drug Abuse Records,
1987). These regulations govern any federally assisted individual or program that specializes, in
whole or in part, in providing treatment, counseling, or assessment and referral services for
people with substance abuse difficulties (Weber, 1992).
Because of the laws enacted by the federal government, more stringent rules regarding
confidentiality apply to substance abuse treatment than to other treatment settings. The six
situations in which confidentiality may be legally breached are (a) child abuse, (b) the duty-towarn, (c) subpoenas (a summons to appear in court or release records to the court), (d) third party
payers, (e) audit and research purposes, and (f) medical emergencies (Confidentiality of Alcohol
and Drug Abuse Records, 1987). Departments of the criminal justice system that have referred or
mandated clients into treatment (i.e., clients on parole, probation, or in state institutions) may
also receive information, but a release of information must be signed.
A concrete example of these strict regulations is that substance abuse treatment agencies may not
release the names of clients without expressed written consent. Because admission to a chemical
dependency program constitutes a diagnosis, the admission to any treatment center may not be
released without the written consent. Because Federal regulations prohibit responding to
inquiries about a person's possible or actual client status, the only appropriate response to a blind
inquiry is, "I am sorry, but confidentiality requirements and regulations prohibit me from
answering your question," unless a release of information has been signed for that particular
individual. Typically, written consent is obtained through the use of a release-of-information
form, which is very specific and must follow the Federal guidelines (Confidentiality of Alcohol
and Drug Abuse Records, 1987).
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Ethical Guidelines
The Code of Ethics (ACA, 1995) incorporates confidentiality into the code. In sum, it states the
following: (a) Counselors must keep the relationship and information resulting from the
relationship confidential; (b) in group settings, provisions and norms must be made to guard
confidentiality; (c) when there is clear and imminent danger to the client or others, the
appropriate authorities must be contacted; and (d) revelation to others of counseling material
must occur only upon the expressed consent of the client or when legal requirements demand
that the confidential information be revealed.
The preamble of Principle 8 of the Code of Ethics (NAADAC, 1987) states, "The alcoholism and
drug abuse counselor must embrace, as a primary obligation, the duty of protecting the privacy
of clients and must not disclose confidential information acquired, in teaching, practice, or
investigation" (p. 2). This means that the alcoholism and drug abuse counselor must make
provisions for maintaining confidentiality and the ultimate disposition of confidential records,
disguise the identity of the client if the case is used in teaching or publishing, and discuss the
information obtained in clinical relationships only in appropriate settings and only for
professional purposes that are clearly concerned with the case.
Principle 8c of the Code of Ethics (NAADAC, 1987) states that the alcohol and drug abuse
counselor should reveal information received in confidence only when there is clear and
imminent danger to the client or other persons, and then only to appropriate professional workers
or public authorities. A breach of confidentiality, although not necessarily legally required, may
be ethically justifiable. The two situations in which a breach of confidentiality may be ethically
justified are (a) suicidal threats and (b) danger to others, including child abuse.
In these situations, any breach of confidentiality should respect the privacy of the client to the
greatest degree possible. For instance, a substance abuse counselor might contact a professional
with more expertise before calling the police. When other professionals are brought in, they
should be given only the information necessary to prevent the danger.
VIGNETTE 3: COMPETENCE AND EXPERTISE
A client has been in an inpatient program for 2 weeks, and she has 2 weeks remaining in
treatment. She told her counselor that she is 2 months pregnant, and her husband is not
the father of the baby. The client asked her counselor to help her with the decision
whether to abort, to tell her husband the truth, or to tell her husband that he is the father
of the unborn child. The counselor is a devout Christian and realizes that her beliefs may
interfere with her counseling objectivity and asks her supervisor for assistance.
Principles 2 (Responsibility) and 3 (Competence) of the Code of Ethics (NAADAC, 1987) and
Section C (Professional Responsibility) of the Code of Ethics (ACA, 1995) address competence.
These ethical principles state that alcohol and drug abuse counselors should try to achieve the
highest possible level of standards and must recognize that the profession is founded on national
standards of competency, which promote the best interests of society, the client, the counselor,
and the profession. Two major points of these principles that affect addiction specialists are: (a)
The counselor must recognize boundaries and limitations of counselor's competencies and not
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offer services or use techniques outside of these professional competencies, and (b) the counselor
must recognize the need for continuing education as a component of professional competency.
One aspect of the professional obligation of restricting practice to one's area of expertise is the
importance of making referrals to other agencies for services one cannot or chooses not to offer.
For example, if a person comes into treatment in a toxic state and begins to experience severe
withdrawal symptoms, it is imperative to obtain immediate medical attention or to refer the client
to a detoxification unit.
Also, by the time drug addicts reach the point of treatment, nearly every area of their lives have
been severely affected. Too often, the emphasis on addiction to alcohol or other drugs as the
primary problem has created the impression that it is the only problem. Mere removal of the drug
does not mean family problems and all the other problems are resolved. With sobriety, a host of
new problems that were masked during active drug use often surface, such as child abuse,
financial problems, and legal difficulties. It is important for the counselor to refer clients to
appropriate agencies that specialize in the relevant areas.
Addiction counseling is a rapidly changing and highly complex profession. To ensure that their
services meet the ethical responsibility of competence, counselors need continuing education and
training. Counselors must take it upon themselves to keep up with new developments in the field
by reading professional journals and new books regularly, by attending conventions and
workshops, and by taking additional courses (Bissell & Royce, 1987).
CONCLUSION
To avoid lawsuits, the chemical dependency counseling specialist should be very rehearsed in the
ethical standards and legal regulations of informed consent, confidentiality, and competence.
However, the real reason the professional counselor needs to know the ethical and legal
guidelines is to protect the client from any harm.
To reduce the risk of lawsuits, the guiding principle for addiction counselors is to be very
familiar with the most current legal issues and information. Also, the professional should act in a
reasonable manner. These are the best guidelines for clinical practice and legal defense.
Chemical dependency counselors also need contact with supervisors and administrators who are
familiar with the ethical and legal guidelines. Also, lawyers who represent the agency or are
knowledgeable of these issues should be available for the staff.
REFERENCES
American Counseling Association. (1995). Code of ethics and standards of practice. Alexandria,
VA: Author.
Ahia, C. E., & Martin, D. (1993). The danger-to-self-or-others exception to confidentiality (Vol.
8). In T. P. Remley, Jr. (Ed.), The ACA legal series. Alexandria, VA: American Counseling
Association.
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Arthur, G. L. Jr., & Swanson, C. D. (1993). Confidentiality and privileged communication (Vol.
6). In T. P. Remley, Jr. (Ed.), The ACA legal series. Alexandria, VA: American Counseling
Association.
Bednar, R. L., Bednar, S.C., Lambert, M. J., & Waite, D. R. (1991). Psychotherapy with high
risk clients. Belmont, CA: Brooks/Cole.
Bissell, L., & Royce, J. E. (1987). Ethics for addiction professionals. Center City, MN:
Hazeldon.
Confidentiality of Alcohol and Drug Abuse Records, 52 Fed. Reg. 21796-21814. (1987).
Washington, DC: United States Department of Health and Human Services, U.S. Government
Printing Office.
Manhal-Baugus, M. (1996). Confidentiality: The legal and ethical issues for chemical
dependency counselors. Journal of Addiction and Offender Counseling, 17, 3-11.
National Association of Alcoholism and Drug Abuse Counselors. (1987). Code of ethics.
Arlington, VA: Author.
Weber, E. M. (1992). Alcohol- and drug-dependent pregnant women: Laws and public policies
that promote and inhibit research and the delivery of services. In M. M. Kilbey & K. Asghar
(Eds.), Methodological issues in epidemiological, prevention, and treatment research on drugexposed women and their children (DHHS Publication No. ADM 92-1881, pp. 349--366).
Rockville, MD: U.S. Department of Health and Human Services.
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By Monique Manhal-Baugus
Monique Manhal-Baugus is an assistant professor in the Department of Specialized Educational
Development, Counselor Education Program at Illinois State University, Normal, Illinois.
Correspondence regarding this article should be sent to Monique Manhal-Baugus, 1503 Searle
Drive, Normal IL 61761.