Ethical and Legal Issues
in Counseling Practice
COUN 540: Foundations
Spring 2009
Tonight’s 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
courts
Rooted in philosophy,
created by professional
associations
Govern citizens (federal,
county, state)
Govern members of
profession – guide practice
Represent minimal
standards
Represent ideal 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:
Section B:
Section C:
Section D:
Section E:
Section F:
Section G:
Section H:
The Counseling Relationship
Confidentiality, Privileged
Communication, Privacy
Professional Responsibility
Relationship with Other Professionals
Evaluation, Assessment and
Interpretation
Supervision, Training and Teaching
Research and Publication
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 played…this 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 client’s 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
counseling…and 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 rules…real 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 Principles…function 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
Client’s right to drive her/his own bus…make own decisions
Client’s independence, freedom to choose & direct one’s
own actions – we avoid fostering dependency in
counseling relationships
Centered in respect for client’s 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