Chapter 16
Ethical and Legal Aspects
of Counseling
Ethical and Legal Aspects
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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.
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.
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.
Temptations in Counseling
 Physical
Intimacy
 Titillation of Gossip
 Opportunity (if the gamble plays off)
to advance one’s career
Common Unethical Behaviors
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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
Professional Codes
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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.
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 Codes are historical documents.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.
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Conflicts Within and Among Codes
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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.
Types of Ethical Dilemmas
 Confidentiality
Role Conflict **
 Role
Conflict
 Counselor Competence **
 Conflicts with Employer/Institution
 Degree of Dangerousness
**most difficult to resolve
Guidelines for Acting Ethically
 Personal
and professional honesty.
 Acting in the best interest of clients.
 Act without malice or personal gain.
 Justify an action.
Continuum of Reasoning
(Van Hoose & Paradise, 1979)
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Punishment Orientation – external social standards
are the basis for judging behaviors.
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Institutional Orientation – believe in and abide by
the rules of the institution where employed.
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Societal Orientation – decisions are based on
societal standards.
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Individual Orientation – individual needs receive top
priority at this stage.
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Principle Orientation – concern for the individual is
primary…ethical decisions are based on internalized
ethical standards not external considerations.
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).
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.
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.”
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.
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.
Legal Aspects of the Relationship
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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:
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Confidentiality
Privacy
Privileged Communication
Exceptions
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Most states recognize and protect privileged
communication in counselor-client
relationships. Exceptions include:
1.
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.
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3.
Exceptions
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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.
Group Counseling
 As
opposed to individuals, “the legal
concept of privileged communication
generally does not apply in group and
family counseling” (Anderson, 1996).
Civil and Criminal Liability
– concerned with whether
counselors have caused harm to clients.
 Liability
 Directly
connected to:
Malpractice
 Negligence
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 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.
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Client Records and Rights
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.”
 Implied
Categories of Records Documents
 Identifying
or Intake Information
 Assessment Information
 Treatment Plan
 Case Notes
 Termination Summary
 Other Data
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.