Ethical and Legal IssuesEthical and Legal Issuesin Counseling Practicein Counseling Practice

COUN 540: FoundationsCOUN 540: Foundations

Spring 2009Spring 2009

Tonight’s GoalsTonight’s GoalsDiscuss how ethics and law guide and govern our Discuss how ethics and law guide and govern our

professional behavior– similarities and differencesprofessional behavior– similarities and differences

Introduce ethical codes - ACA Code of EthicsIntroduce ethical codes - ACA Code of Ethics

Major ethical/legal issues we encounter in practiceMajor ethical/legal issues we encounter in practice

informed consent confidentiality duty informed consent confidentiality duty to warnto warn

To introduce the concept of the Ethical Decision To introduce the concept of the Ethical Decision Making Model and explore its useMaking Model and explore its use

Ethics and LawEthics and LawGoverning our Professional Governing our Professional

PracticePracticeLaw Ethics

Created by legislature and courts

Govern citizens (federal, county, state)

Represent minimal standards

Penalty fines, jail

Rooted in philosophy, created by professional associations

Govern members of profession – guide practice

Represent ideal standards

Penalty loss of license, professional sanctions

Criminal vs Civil LawCriminal vs Civil LawCriminalCriminal Go to Jail, associated professional sanctions Go to Jail, associated professional sanctions

Example: Sexual contact with client is aExample: Sexual contact with client is a Felony 4Felony 4thth Degree Degree

CivilCivil Monetary consequences, associated professional Monetary consequences, associated professional sanctions sanctions

Malpractice door opens when it can be proven that the Malpractice door opens when it can be proven that the counselor had:counselor had:

1) A 1) A dutyduty 2) That duty was 2) That duty was breechedbreeched3) The client experienced 3) The client experienced damagedamage

4) It was the breech of duty that 4) It was the breech of duty that causedcaused the damage the damage

When Questions of Law When Questions of Law AriseArise

Consider it to be a legal issue if…Consider it to be a legal issue if…*lawyers are involved *lawyers are involved *the matter has come to court, *the matter has come to court, *the counselor may be in danger of *the counselor may be in danger of

being being accused of misconduct accused of misconduct

Avoid being impulsive take time to think Avoid being impulsive take time to think before reacting (e.g. receipt of subpoena)before reacting (e.g. receipt of subpoena)

Talk to a lawyer Talk to a lawyer (American Counseling Association) (American Counseling Association)

when it is, or might be a legal issue to when it is, or might be a legal issue to determine your next appropriate actiondetermine your next appropriate action

When Ethics and Law When Ethics and Law CollideCollide

H.1.b. Conflicts Between Ethics and LawsH.1.b. Conflicts Between Ethics and LawsIf ethical responsibilities conflict with law, If ethical responsibilities conflict with law,

regulations, or other governing legal regulations, or other governing legal authority, counselors make known their authority, counselors make known their commitment to the commitment to the ACA Code of Ethics ACA Code of Ethics and take steps to resolve the conflict. and take steps to resolve the conflict.

If the conflict cannot be resolved by such If the conflict cannot be resolved by such means, counselors may adhere to the means, counselors may adhere to the requirements of law, regulations, or requirements of law, regulations, or other governing legal authority. other governing legal authority.

ACA Code of Ethics (2005)ACA Code of Ethics (2005)

ACA Code of EthicsACA Code of EthicsRevised in 2005Revised in 2005

Section A: Section A: The Counseling RelationshipThe Counseling RelationshipSection B: Section B: Confidentiality, Privileged Confidentiality, Privileged Communication, PrivacyCommunication, PrivacySection C: Section C: Professional ResponsibilityProfessional ResponsibilitySection D:Section D: Relationship with Other ProfessionalsRelationship with Other ProfessionalsSection E:Section E: Evaluation, Assessment and Evaluation, Assessment and InterpretationInterpretationSection F:Section F: Supervision, Training and TeachingSupervision, Training and TeachingSection G: Section G: Research and PublicationResearch and PublicationSection H: Section H: Resolving Ethical IssuesResolving Ethical Issues

Functions of Ethical CodeFunctions of Ethical Code

First and most important – to First and most important – to safeguard welfare of client safeguard welfare of client and societyand society

Define ethical conduct in a profession – to inform and Define ethical conduct in a profession – to inform and educate memberseducate members

Define Standards of Practice – important in legal actionsDefine Standards of Practice – important in legal actions

Create a means by which members are held accountable Create a means by which members are held accountable for actions – protecting publicfor actions – protecting public

Offer a way to promote professional growth, best practiceOffer a way to promote professional growth, best practice

Commonalities inCommonalities in Mental Health Ethical Codes Mental Health Ethical Codes

*Priority placed on welfare of clients & society*Priority placed on welfare of clients & society*Competency *Competency *Personal awareness of own values, biases *Personal awareness of own values, biases *Prohibition on sexual involvement with clients*Prohibition on sexual involvement with clients*Research criteria to protect subject/client rights*Research criteria to protect subject/client rights*Responsibility to protect confidentiality*Responsibility to protect confidentiality*Helping clients reach self-determined goals*Helping clients reach self-determined goals*Ongoing professional development*Ongoing professional development*Obligation to confront colleagues demonstrating *Obligation to confront colleagues demonstrating

unethical, illegal, incompetent practiceunethical, illegal, incompetent practice*High personal standards of integrity*High personal standards of integrity

Kotter & Brown (1992)Kotter & Brown (1992)

Limitations of Ethical CodesLimitations of Ethical CodesBroadBroad - The mental health field is so - The mental health field is so diversediverse, with counselors , with counselors

and client populations varying broadly in terms of role and client populations varying broadly in terms of role played…this leads to creations of codes that must be played…this leads to creations of codes that must be broad broad in scope in scope to accommodate application in many different to accommodate application in many different situationssituations

ChangeableChangeable - Codes must - Codes must adapt and changeadapt and change as new issues as new issues arisearise

(e.g. HIV; technology) (e.g. HIV; technology)

Clarity of Guidance Clarity of Guidance - Guidelines provided by codes are - Guidelines provided by codes are not not always always

clearclear and call for a systematic manner of decision making – and call for a systematic manner of decision making – they are they are

not “cookbooks” for perfect decisions in every situationnot “cookbooks” for perfect decisions in every situation

Conflicts between Codes Conflicts between Codes - - in some cases, conflicts between in some cases, conflicts between professional associationsprofessional associations

Ethical and Legal Concerns:Ethical and Legal Concerns:Major Areas of FocusMajor Areas of Focus

Informed ConsentInformed Consent

ConfidentialityConfidentiality

Duty to Warn/Duty to ProtectDuty to Warn/Duty to Protect

Record KeepingRecord Keeping

TechnologyTechnology

Managed CareManaged Care

Informed ConsentInformed ConsentAn opportunity for building foundations for a An opportunity for building foundations for a

truly collaborative and effective counseling truly collaborative and effective counseling relationship - defines the relationshiprelationship - defines the relationship

Promotes idea of clients as informed partners Promotes idea of clients as informed partners in the counseling process – they know the in the counseling process – they know the rules and participate willinglyrules and participate willingly

As important with children as with adultsAs important with children as with adults

Beginning and throughout the relationship – Beginning and throughout the relationship – written and discussedwritten and discussed

Confidentiality/PrivacyConfidentiality/Privacy

The trusting foundation on which the The trusting foundation on which the counseling counseling

relationship is buildrelationship is build Confidentiality versus PrivilegeConfidentiality versus Privilege

Duty to protect private communication in Duty to protect private communication in the therapeutic relationshipthe therapeutic relationship

HIPPA rules have important impact HIPPA rules have important impact

Place where law and ethics may collide (e.g. Place where law and ethics may collide (e.g. mandatory reporting of child abuse)mandatory reporting of child abuse)

Challenges in ConfidentialityChallenges in Confidentiality

SubpoenasSubpoenas

Counseling MinorsCounseling Minors

Substance abuse Substance abuse

Group/Family CounselingGroup/Family Counseling

OffendersOffenders

After Death of ClientAfter Death of Client

TechnologyTechnology

Duty to WarnDuty to Warn

Societal interest in protection may over-ride Societal interest in protection may over-ride confidentiality duty to clientconfidentiality duty to client

Concept of Concept of vulnerable populationvulnerable population

Domestic violence Domestic violence laws vary from state to state re laws vary from state to state re mandatory reporting – but when child/elder mandatory reporting – but when child/elder involved – line is crossedinvolved – line is crossed

Past crimes Past crimes usually not a duty though a client’s risk usually not a duty though a client’s risk to others may trigger duty to warnto others may trigger duty to warn

AIDS/HIV ACA Code B.2.b.AIDS/HIV ACA Code B.2.b.

Duty to ProtectDuty to Protect

Threat of harm to self and threat of suicide Threat of harm to self and threat of suicide raise affirmative dutyraise affirmative duty

Risk Assessment essentialRisk Assessment essential

Children especially concerning. Case of Nicole Eisel Children especially concerning. Case of Nicole Eisel brings duty to school setting - minorbrings duty to school setting - minor

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

End of life issuesEnd of life issues

Record KeepingRecord KeepingGood record keeping part of Standard of Good record keeping part of Standard of

Practice …know law and regulations inc. Practice …know law and regulations inc.

Health Information Protection and Portability Health Information Protection and Portability Act (HIPPA)Act (HIPPA)

Wheeler and Bertrham (2008) identify four Wheeler and Bertrham (2008) identify four Purposes of Client RecordsPurposes of Client Records

*Clinical management*Clinical management*Legal implications for client*Legal implications for client*Protection of health info*Protection of health info*Risk management*Risk management

TechnologyTechnology

Technological advances are changing Technological advances are changing how we define and go about the how we define and go about the business of counseling…and business of counseling…and introduce a new plate of potential introduce a new plate of potential challengeschallenges

e.g. on-line counseling servicese.g. on-line counseling services

electronic media electronic media

Managed CareManaged Care

Presents a number of issues relating to Presents a number of issues relating to

counseling practice which relate to counseling practice which relate to potential potential

for ethical challenges…for ethical challenges…

*diagnosis dependent*diagnosis dependent

*session numbers limited*session numbers limited

*confidentiality concerns*confidentiality concerns

Ethical Decision MakingEthical Decision Making

Counselors must have a systematic model Counselors must have a systematic model which can be utilized to reach decisionswhich can be utilized to reach decisions

Not just following the rules…real ethical Not just following the rules…real ethical decision making takes…decision making takes…

Reflection & evaluationReflection & evaluationConsultation with colleaguesConsultation with colleaguesCourageCourage

Best when client can be involved in the processBest when client can be involved in the process

The Ethical Decision Making The Ethical Decision Making ModelModel

Seven StepsSeven Steps1. Identify and describe the problem (legal, ethical, 1. Identify and describe the problem (legal, ethical,

and professional) and potential issues involvedand professional) and potential issues involved2. Refer to the ACA Code of Ethics – is there a fit? 2. Refer to the ACA Code of Ethics – is there a fit?

Consider law and regulation that may applyConsider law and regulation that may apply3. Determine the nature and dimensions of the 3. Determine the nature and dimensions of the

dilemma – consult with colleagues, literature dilemma – consult with colleagues, literature review4. Identify possible courses of actionreview4. Identify possible courses of action

5. Consider potential consequences of each 5. Consider potential consequences of each course of action and choose the best onecourse of action and choose the best one6. Evaluate the selected course of action6. Evaluate the selected course of action7. Implement the course of action7. Implement the course of action

Ethics vs MoralityEthics vs Morality

Morality is associated with a “personal belief system” – the Morality is associated with a “personal belief system” – the basis by which we decide what is right and what is wrongbasis by which we decide what is right and what is wrong

Grounded in culture - arising from a social context, from Grounded in culture - arising from a social context, from the the

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

Historical forces influence the moral judgments of the time Historical forces influence the moral judgments of the time e.g. perception of children and disciplinee.g. perception of children and discipline

Ethical ReasoningEthical ReasoningThe Five Moral Principles The Five Moral Principles

The Five Moral Principles…function as a true cornerstone The Five Moral Principles…function as a true cornerstone of ethical reasoning and serve as guides when of ethical reasoning and serve as guides when

counselors face difficult questions regarding a course counselors face difficult questions regarding a course of action:of action:

AutonomyAutonomyNonmaleficence Nonmaleficence BeneficenceBeneficenceJusticeJusticeFidelityFidelity

Used to evaluate the course of action we should take – Used to evaluate the course of action we should take – note note not unusualnot unusual for there to be conflict between moral for there to be conflict between moral principles principles

AutonomyAutonomy Respecting Clients’ Right to IndependenceRespecting Clients’ Right to Independence

Client’s right to drive her/his own bus…make own Client’s right to drive her/his own bus…make own decisions decisions

Client’s Client’s independence, freedom to choose & direct one’s independence, freedom to choose & direct one’s own actions – own actions – we avoid fostering dependency in we avoid fostering dependency in counseling relationshipscounseling relationships

Centered in Centered in respect for client’s valuesrespect for client’s values and and cultureculture

Considerations of competence - decisions that are rational Considerations of competence - decisions that are rational and solid –safe for self/others, throws a wrenchand solid –safe for self/others, throws a wrench

Decision making involves consideration of impact of Decision making involves consideration of impact of actions on othersactions on others

NonmaleficenceNonmaleficenceTo Cause No HarmTo Cause No Harm

A major concern in ethical decision making and a A major concern in ethical decision making and a long held belief as the most important of the long held belief as the most important of the

ethical ethical principles – thank you Hippocrates principles – thank you Hippocrates

Nonmaleficence = not causing harm to others. Nonmaleficence = not causing harm to others. Avoid practices that have Avoid practices that have potential potential to harmto harm

Includes the concept of not harming self or acting Includes the concept of not harming self or acting in ways that would cause harm to othersin ways that would cause harm to others

BeneficenceBeneficence To Do To Do GoodGood

Counselor's responsibility – Counselor's responsibility – duty -duty - to promote to promote and to contribute to the welfare of the client. and to contribute to the welfare of the client.

Means to do good, to be proactive and also Means to do good, to be proactive and also to prevent harm when possible (Forester-to prevent harm when possible (Forester-Miller & Rubenstein, 1992). Miller & Rubenstein, 1992).

First priority, do no harm, second priority is First priority, do no harm, second priority is to do good – client should be better at end of to do good – client should be better at end of relationship than at the beginningrelationship than at the beginning

JusticeJusticeFair and NondiscriminatoryFair and Nondiscriminatory

FairFair is not synonymous with the is not synonymous with the samesame……

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

Involves examining the interests and needs of Involves examining the interests and needs of bothboth the the client and those involved and impacted by her/his actionsclient and those involved and impacted by her/his actions

Client needs considered Client needs considered in contextin context to those of others to those of others

The presence of stereotypes suggests absence of justiceThe presence of stereotypes suggests absence of justice

FidelityFidelityLoyalty & Honor to Commitments Loyalty & Honor to Commitments

MadeMade

Creating a therapeutic climate in which Creating a therapeutic climate in which trust trust

can flourish makes client growth and can flourish makes client growth and

progress possibleprogress possible

Promises made in good faith and keptPromises made in good faith and kept

Obligations metObligations met