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CHAPTER 8 Ethical and Legal Issues Facing Helpers

Learning Objectives 1. Describe what is involved in ethical decision making. 2. Explain the difference between law and ethics. 3. Identify the purposes that codes of ethics serve. 4. Explain how to address unethical behavior by colleagues. 5. Recognize the steps in working through an ethical dilemma. 6. Explain what is involved in the informed consent process. 7. Discuss how confidentiality and privacy form the foundation for a

therapeutic relationship. 8. Explain the legal and the ethical aspects of confidentiality in couples and

family therapy. 9. Describe the role and limitations of confidentiality in groups.

10. Discuss how confidentiality and privacy apply to technology. 11. Explain the difference between progress notes and process notes. 12. Identify the key ethical issues involved in managed care. 13. List risk management practices that can prevent ethical and legal problems.

Focus Questions 1. What ethical issues most concern you at this stage in your education? Why? 2. When you are faced with an ethical dilemma, what ideas do you have about

how you would go about resolving the dilemma? 3. What are the main purposes of the codes of ethics for helping professionals?

How can you use the codes of ethics to guide your ethical decision making? 4. There are limits to confidentiality in any helping relationship. If you were

a client in therapy, what would you want to know about the purposes and limitations of confidentiality?

5. What concerns do you see in the use of technology in counseling, especially with respect to a client’s privacy?

6. What do you consider to be the most important components of informed consent? If you were a client in therapy, what information would you want about the process?

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7. What are some of your ideas regarding how you could best go about obtaining informed consent from your clients?

8. In keeping records on your clients, what do you think is most important to document?

9. Do you have concerns about staying out of trouble with a licensure board? What steps can you take to decrease the chances of being involved in a malpractice suit?

10. What ethical concerns might you have that are associated with distance counseling, technology, and social media?

Aim of the Chapter Regardless of the specific helping profession you decide on, you will face ethical dilemmas. Part of becoming a competent practitioner involves being able to apply the ethics code of your professional organization to practical situations in your work. In this chapter, we introduce you to an array of ethical and legal concerns you may encounter, including informed consent, confidentiality and privacy, documentation and keeping records, and malpractice and risk management. Establishing appropriate boundaries is also a key ethical issue, and it is the subject of Chapter 9. We hope the material presented here will help you prepare to deal effectively with ethical dilemmas whenever they arise in your work with clients.

There has been an increased interest in ethics in the mental health professions during the past few decades. Articles pertaining to ethical and legal issues in the helping field are common in professional journals, and many books have been written about professional ethics. Most undergraduate and graduate programs include a discussion of these topics in various courses, with separate courses in ethical and legal issues now required in most graduate programs.

Inventory of Ethical Issues What are some of your major concerns about ethical practice? Perhaps at this point you have not even raised this question. For each statement in this inventory, indicate the response that most closely identifies your beliefs and attitudes. Use the following code:

5 = I strongly agree with this statement. 4 = I agree with this statement. 3 = I am undecided about this statement. 2 = I disagree with this statement. 1 = I strongly disagree with this statement.

1. When an ethical concern arises, the best way to address it is to refer to the code of ethics.

2. If I were faced with an ethical dilemma in one of my cases, I would take the initiative to seek guidance from one of my professors or supervisors.

3. It would be hard for me to refer a client to another professional, even if I felt this was in the client’s best interest.

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4. I do not have enough time to keep detailed clinical records on my clients and document everything that goes on in the helping process.

5. It would be difficult for me to decide when I had to break confidentiality.

6. If I were uncertain about keeping a client’s confidence, I would want to discuss this with my client.

7. It is my responsibility to resolve any ethical dilemmas that arise, and I would not involve my client in this decision-making process.

8. I am uncertain about how to resolve ethical dilemmas. 9. I lack confidence in my ability to discuss informed consent with clients.

10. I am not at all certain that I know what to do if a client poses a danger to self or to others.

11. I am uncomfortable with the prospect of using technology in my work as a helper.

12. I am uncertain what actions to take in situations where there is a duty to warn and protect others.

13. What constitutes ethical practice is very much a concern of mine. 14. I know the steps I am likely to take if I become aware of unethical

behavior on the part of my colleagues. 15. I am concerned about the possibility of becoming involved in a

malpractice suit as a result of something I do or don’t do as a helper. Once you have finished this inventory, spend a few minutes reflecting on the

specific issues of most concern to you. This reflection can help you read the chapter more actively and formulate ethical questions. Identify a few of the areas in which you are uncertain about your position, and discuss these ambiguities in class.

Ethical Decision Making Ethical practice involves far more than merely knowing and following a professional code of ethics. In dealing with ethical dilemmas, you will rarely find clear-cut answers. Most of the problems are complex and defy simple solutions. Making ethical decisions involves acquiring a tolerance for dealing with gray areas and for coping with ambiguity. Although knowing the ethical standards of your profession is essential, this knowledge alone is not sufficient. Ethics codes are not dogmatic; however, they do provide guidance in assisting you in making the best possible decisions for the benefit of your clients and yourself. Regulations and procedures vary among agencies. It is essential to understand the specific policies and practices of the agency or institution where you work as well as know the relevant laws and regulations in your state.

In our teaching we find that students often begin an ethics course with the expectation that they will get definitive answers to some of the questions raised in their fieldwork. They typically do not think they will have to engage in personal and professional self-exploration to find the best course of action. We tell our students that the purpose of an ethics course is to assist them in developing the resources to deal intelligently with ethical dilemmas they are likely to encounter.

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Consider the example of Gerlinde, who became aware of unethical practices in a community agency where she was an intern. She and other interns were expected to take on some difficult clients. She realized that doing so would mean that she was clearly practicing beyond the boundaries of her competence. To make the situation worse, supervision at the agency was not always available. Her superior was overextended and not able to provide regular supervision. In her fieldwork seminar on campus, she learned that supervisors are ethically and legally responsible for what interns do. Gerlinde had some trouble deciding what to do. She did not want to change placements in the middle of the semester, yet she was struggling with the appropriateness of confronting her supervisor about the situation. Unclear about how to proceed, she made an appointment with her fieldwork professor on campus to discuss her concerns.

In consultation with her professor, Gerlinde explored a number of alternatives. She might approach her agency supervisor herself and be more assertive in getting an appointment. Another option could be a meeting with her agency supervisor and her professor to explore the situation. It might be decided that this particular agency was inappropriate for students. What was important was that Gerlinde knew she could get help in dealing with her problem. Sometimes students who are in similar predicaments arrive too quickly at the conclusion that they will merely tolerate circumstances as they are rather than deal with an uncomfortable situation.

At the beginning of the course, Gerlinde thought that clear answers were available for the variety of situations that would surface. By the end of the semester, she was learning to appreciate that ethics codes are not laws; they are standards that provide guidance in dealing with a range of ethical dilemmas. She had also learned the value of initiating the consultation process in ethical decision making.

Another example involves interpreting the ethical standard that the client’s welfare should be the primary consideration in the therapeutic relationship. Consider the case of a client who is talking about her struggles in an alcoholic family. As the therapist listens, he is reminded painfully of the alcohol addiction of his own parents. He wonders whether he should tell this to his client. Why would he want to make this disclosure? Will his disclosure meet his own needs or the needs of the client? How will he know whether the disclosure will help or hinder the client?

Ethical issues in the helping field are often complex and multifaceted, and they defy simplistic solutions. There are gray areas that require decision-making skills. Thinking about ethical issues and learning to make wise decisions is an ongoing process that requires an open mind.

A key question is this: “What is the ethical thing to do?” Some practitioners focus almost exclusively on laws, regulations, and codes of ethics, but this extremely rule-bound approach can have a negative influence on the quality of the professional relationship. A rule-bound approach to ethics is limited in providing meaningful help to practitioners striving to practice at the highest level of ethical functioning. Another mistake helpers may make is to disproportionately pay attention to their personal values and underplay any consideration of laws, rules, regulations, and ethical standards.

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Law and Ethics Laws and ethics codes provide guidelines for acceptable professional practice, yet neither offers clear-cut answers to most situational problems. Law defines the minimum standards society will tolerate; these standards are enforced by government agencies. All of the codes of ethics state that practitioners must act in accordance with relevant federal and state statutes and government regulations. It is critical that practitioners be able to identify legal problems as they arise in their work. Sometimes practitioners are not sure that they have a legal problem; others may not know what to do once a legal issue has been identified (Remley & Herlihy, 2020). When confronted with a legal issue, consult a lawyer to determine which course of action to take. Many professional associations have attorneys who are familiar with both legal and clinical issues, and members of these associations can be called upon for consultations. Many of the situations helpers encounter that involve ethical and professional judgment will also have legal implications.

Unlike law, ethics represents aspirational goals, or the maximum or ideal standards set by the profession. Ethical standards are enforced largely by professional associations. Codes of ethics are conceptually broad in nature and generally are subject to interpretation by practitioners. Ethical standards serve as a form of protection for the client, but they also help counselors ensure their own self-care. For example, counselors sometimes struggle with setting limits around being helpful to others. Out of a personal need to ease the pain and suffering of clients who are overwhelmed by their life circumstances coupled with the need to be needed, some clinicians may be inclined to overstep boundaries by fostering client dependence and taking too much responsibility for clients’ progress. Having clear guidelines in place can help both counselors and clients to establish appropriate and healthy boundaries. By doing too much in the name of helping, a counselor may unintentionally convey the message to clients that they would not be making progress if it were not for the efforts of the helper. Ethical standards exist in part to remind counselors that their job is to empower clients to learn to take charge of their own lives and to expand their capacity to grow and develop.

Knowledge of the ethics codes and legal guidelines applicable to a helper’s practice is essential for practicing ethically and for minimizing legal liability. As a helper, not only must you follow the ethics codes of your profession but you must also know your state’s laws and your legal responsibilities. However, merely becoming familiar with local and state laws that govern your profession is not enough to enable you to make sound decisions. Your professional judgment will play a key role in resolving cases, from both an ethical and a legal perspective.

You may encounter a situation in which there is a conflict between the law and ethical practice. In such cases, fulfilling both ethical and legal obligations can demand a great deal of reflection on your part as well as consultation with other professionals. For example, at times ethical standards may conflict with legal standards and requirements for working with minors. Counselors may want to honor a minor’s ethical right to confidentiality, yet they may also encounter a parent’s demand for information that a particular state law allows

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(Wheeler & Bertram, 2019). Some areas that may be governed by law include confidentiality, parental consent, informed consent, protection of client welfare, and civil rights of institutionalized people. Because most helpers do not possess detailed legal knowledge, it is a good idea for helpers to obtain legal consultation about the procedures they use in their practice. Awareness of legal rights and responsibilities as they pertain to helping relationships protects clients and shields practitioners from needless lawsuits arising from negligence or ignorance.

Laws and ethics codes, by their very nature, tend to be reactive, emerging from what has occurred rather than anticipating what may occur. It is not wise to limit your behavior to merely obeying statutes and following ethical standards. Some professionals think mainly about practicing in ways that will protect them from a malpractice suit by their clients. If this legal perspective assumes primacy, helpers may limit their work with clients out of fear of a possible lawsuit and fail to provide effective services. Although it is essential to do what you can to avoid a malpractice action, do not let this overshadow your work as an ethical practitioner. Do not let your behavior be determined mainly by fear-based ethics. Instead, do your best to develop an attitude of concern-based ethics early in your training program, and strive for the highest level of ethical care for those with whom you work (Corey, Corey, & Corey, 2019).

Understanding the difference between mandatory ethics and aspirational ethics is key to striving for the highest level of ethical practice. Mandatory ethics describes a level of ethical functioning wherein counselors act in compliance with minimal standards, acknowledging the basic rules of practice. Aspirational ethics goes beyond these minimal standards of practice and entails an understanding of the spirit behind the code and the principles on which the code rests. Practitioners who comply with mandatory ethics are generally safe from legal action in courts of law or professional censure by state licensure boards. Those who practice aspirational ethics go further and reflect on the effects their interventions may have on the welfare of their clients. An example of aspirational ethics is providing services for no fees (pro bono) for those in the community who cannot afford needed services. It is important that you acquire an aspirational approach to your practice at the beginning of your professional program. Keep in mind that the basic purpose of practicing ethically is to advance the welfare of your clients.

Professional Codes and Ethical Decision Making Various professional organizations have established codes of ethics that provide broad guidelines for professional helpers. These codes are not static; they are revised as new concerns arise. Some of the professional mental health organizations that have formulated codes of ethics are the National Association of Social Workers (NASW, 2017), the American Psychological Association (APA, 2017a), the American Counseling Association (ACA, 2014), the American Mental Health Counselors Association (AMHCA, 2015), the American School Counselor Association (ASCA, 2016), the American Association for Marriage and Family Therapy (AAMFT, 2015), and the National Organization for Human Services (NOHS, 2015). Herlihy and Corey (2015a) identify several purposes that codes of ethics serve:

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• Codes of ethics educate helpers about sound ethical practice. The application of these codes to particular situations demands a keen ethical sensitivity.

• Codes of ethics provide a mechanism for professional accountability. The ultimate purpose of a code of ethics is to protect the public.

• Codes of ethics serve as catalysts for improving practice. Codes provide the foundation for critically examining both the letter and the spirit of ethical principles. Ethics codes are necessary, but not sufficient, for the exercise of ethical

responsibility. Although you have or will become familiar with the ethics codes of your specialization, you must still develop a personal ethical stance that will govern your practice. You have the ongoing task of examining your clinical practices to determine whether you are acting as ethically as you might. Ethics codes do not convey ultimate truth, nor do they make decisions for you.

In making ethical decisions, it will be necessary for you to grapple with the gray areas, raise questions, discuss your ethical concerns with colleagues, and monitor your own behavior. Reflection, collaboration, and consultation can guide your inquiry, but ultimately you must have the courage to make a decision without being certain of the outcome. When dealing with the uniqueness of each client, it is up to you to apply ethics codes to specific situations and to engage in a process of ethical decision making in determining the best course of action.

If you conscientiously practice in accordance with accepted ethics codes, you have some measure of protection in case of litigation. Documenting your actions and ethical decision-making process is an important safeguard. Compliance with or violation of ethics codes of conduct may be admissible as evidence in some legal proceedings. In a lawsuit, your conduct would probably be judged in comparison with that of other professionals with similar qualifications and duties.

The NASW Code of Ethics (NASW, 2017) states that an ethics code cannot guarantee ethical behavior, nor can it resolve all ethical issues or disputes, nor can it capture the complexity involved in making responsible choices within a moral community. Instead, the code identifies values, ethical principles, and ethical standards to which professionals should aspire and by which their actions can be judged. The code reinforces the idea that ethical decision making is a process. The American Psychological Association’s Code of Ethics (APA, 2017a) makes it clear that the code neither provides all the answers nor specifically addresses every dilemma that may confront a practitioner.

The practical application of ethics codes is often difficult. The issues you will encounter as a helper will require not only an understanding of the codes for your profession but also an educated interpretation of these codes in real-life situations.

Codes of Ethics of the Various Professional Organizations We suggest that you devote some time to reviewing the codes of ethics of two or more of the professional organizations. Examine the assets and limitations of these codes and notice similarities between them. What aspects of the codes do you find most useful? If your practice goes against a specific ethics code,

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be aware that you must have a rationale for your course of action. Realize also that there are consequences for violating the ethics code of your profession.

www.nbcc.org/ for more information on this organization. 3. Commission on Rehabilitation Counselor Certification (CRCC):

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17. British Association for Counselling and Psychotherapy (BACP): Ethical Framework for Good Practice in Counselling and Psychotherapy, ©2013 Visit www.bacp.co.uk for more information on this organization.

Recognizing Unethical Behavior in Yourself It is easier to see the shortcomings of others and to judge their behavior than to develop an attitude of honest self-examination. You can control your own professional behavior far more easily than you can that of your colleagues, so the proper focus is to look honestly at what you are doing. Helpers have a tendency to think in terms of gross ethical violations, such as sexual misconduct, but overlook more subtle ways of being unethical. Consider for a moment these two scenarios, and ask yourself the degree to which you could picture yourself in each situation: • You tell your clients that they can call (or text) you if they have a concern,

and you give them your home phone number. One of your clients texts you frequently, often late at night. He tells you how appreciative he is of your offer that he can text you. Might you be flattered by being needed? Could you see yourself as fostering client dependency out of your need to be needed?

• A client who is in private therapy with you is ambivalent about continuing counseling sessions. She wonders whether it is time to terminate. Things are rather tight financially for you right now, and several other clients have recently terminated. Would you be inclined to support her decision? Might you be inclined to encourage her to continue, partly for financial reasons?

Unethical Behavior by Colleagues You may occasionally encounter colleagues who appear to be behaving in unethical and unprofessional ways. Professional codes of conduct generally state that in such cases the most prudent action is to approach the colleague and share your concerns directly in an attempt to rectify the situation. If this step fails, you are then expected to make use of procedures established by your professional organization, such as reporting the colleague. In cases of egregious offenses, such as sexual exploitation of clients or general incompetence, informal measures are not enough. Depending on the nature of the complaint and the outcome of the discussion, reporting a colleague to a professional board is one of several options open to you.

Although most codes of ethics place the responsibility for addressing problems of competence or unethical behavior of colleagues on the members of their profession, Johnson, Barnett, Elman, Forrest, and Kaslow (2012) state that mental health professionals are reluctant to address these problems. Professionals admit they might not directly approach a colleague they believe is functioning below thresholds for competence or behaving unethically, even though they have an ethical duty to address the situation.

Koocher and Keith-Spiegel (2016) discuss the role of informal peer monitoring as a way to assume responsibility for watching out for each other. When ethically questionable acts are identified, informal peer monitoring provides an opportunity for corrective interventions. Actions can be taken

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directly by confronting a colleague or indirectly by advising clients on how to proceed when they have concerns about another professional’s actions. Maintaining open communication in a supervision or consultation group where colleagues periodically check with one another for feedback is a proactive method of engaging in informal peer monitoring. This method fosters a supportive and respectful environment that promotes professionalism while assisting helpers to avoid the slippery slope of unethical behaviors. It is important to remember that the vast majority of people entering the helping professions do not do so with the intent of committing unethical or illegal acts.

Reflect for a few minutes on being in each of the following situations. What would you do in each case? • A colleague frequently talks about his clients in inappropriate ways in places

where others are able to hear him. The colleague says that joking about his clients is his way of “letting off steam” and preventing him from taking life too seriously.

• A couple of female clients have told you that they were sexually seduced by another counselor at the agency where you work. In their counseling sessions with you, they are dealing with their anger over having been taken advantage of by this counselor. What are the legal and ethical ramifications of this situation for you?

• A colleague has several times initiated social contacts with her clients. She believes this practice is acceptable because she sees her clients as consenting adults. Furthermore, she contends that time spent socializing with these clients gives her insights into issues with which she can productively work in the therapy sessions.

• You see that one of your colleagues is practicing beyond what appears to be the scope of his competence and training. This person is unwilling to seek additional training and is not receiving adequate supervision. He maintains that the best way to learn to work with unfamiliar problems that clients present is simply to learn by doing. The various ethics codes generally address the matter of how to respond to

unethical behavior of colleagues. For example, the Commission on Rehabilitation Counselor Certification (CRCC, 2017) provides this standard:

When rehabilitation counselors have reason to believe that another rehabilitation counselor is violating or has violated an ethical standard, they attempt to resolve the issue informally with the other rehabilitation counselor if feasible and provided such action does not violate confidentiality rights that may be involved. (L.2.c.)

Certainly, dealing with the unethical behavior of colleagues demands a measure of courage. If these people are in a position of power, you are obviously vulnerable. Even in the case of peers, such confrontations usually are difficult and require honesty and a willingness to deliver a difficult message. Here is one way to approach a colleague about the possibility of practicing beyond her competence level:

Helen, I have a concern that I wish to discuss with you, and I hope you can hear me nondefensively. I have the utmost respect for you, and I value our relationship. I am concerned about you taking on the new client with anorexia.

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I know you like a challenge. However, from what you have shared in the past, neither you nor your supervisor has had training with eating disorders. This is an area that requires special training because of the complexities of working with this disorder and the potential of anorexia being life-threatening. I hope you reflect on the effects of practicing beyond the scope of your competence. What are your thoughts and reactions to what I have said?

If you were the recipient of this feedback about your competence in dealing with a client’s problem, how would you respond? Would it depend on the relationship you had with this colleague? Would you be inclined to change your course of action and refer the client because of your lack of training in this area?

An Ethical Decision-Making Model The American Counseling Association’s (2014) Code of Ethics states that when counselors encounter an ethical dilemma they are expected to carefully consider an ethical decision-making process. Various ethical decision-making models can guide you in working through ethical dilemmas, and it is a good idea to understand at least one model that you can apply in thinking about ethical practice. Having a systematic way of examining difficult ethical dilemmas increases your chances of making sound ethical decisions. We cannot overemphasize the importance of seeking consultation when deciding on the best course of action. It is good to consult with more than one colleague or supervisor; doing so can help you see various dimensions of a problem. Responsible and ethical practice requires you to do the following: • Base your actions on informed, sound, and responsible judgment. • Consult with colleagues or seek supervision. • Keep your knowledge and skills current. • Engage in a continual process of self-examination.

As much as possible, and when appropriate, include your client in the ethical decision-making process. Make ethical decisions with clients, not simply for them. Respecting the autonomy of your clients implies that you do not decide for them, nor do you foster dependent attitudes and behaviors.

The ethical decision-making model we present here includes clients as collaborators whenever possible. Because you are making decisions about what is best for clients’ welfare, explain the nature of the ethical dilemma that pertains to them. From a feminist therapy perspective, ethical decision making calls for involving the client at every stage of the therapeutic process, which is based on the feminist principle that power should be equalized in the therapeutic relationship (Brown, 2018).

The procedural steps we describe should not be thought of as a simplified and linear way to reach a resolution on ethical matters. It has been our experience that the application of these steps generally stimulates self-reflection and encourages discussion. Following these systematic steps will help you think through ethical problems. 1. Identify the problem or dilemma. Gather as much information as you can to

clarify the situation you are facing. You might ask yourself these questions: Is this an ethical, legal, professional, or clinical problem? Is it a combination of more than one of these? If there are legal dimensions to the problem, seek

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legal consultation. Remember that many ethical dilemmas are complex; examine the problem from various perspectives and avoid looking for a one-dimensional solution. Ethical dilemmas often do not have “right” or “wrong” answers, so you will be challenged to deal with ambiguity. It may be helpful to seek consultation to determine whether there actually is an ethical concern—or to identify the exact nature of the problem. Including your client begins at this initial step and should continue throughout the process of working through an ethical problem. Documenting your decisions and actions should also be done at all stages of counseling.

2. Identify the potential issues involved. After the information is collected, list and describe the critical issues and discard the irrelevant ones. Evaluate the rights, responsibilities, and welfare of all those who are affected by the situation. Good reasons can be presented that support various sides of a given issue, and different ethical principles may indicate different courses of action. Consider the cultural context of the situation, including any relevant cultural dimensions of the client’s situation. Ask yourself these questions: How can I best promote client independence and self-determination? What actions have the least chance of bringing harm to a client? What decision will best safeguard the welfare of the client? How can I create a trusting and therapeutic climate in which clients can find their own solutions?

3. Apply the relevant ethics code. Once you have a clearer picture of the nature of the problem, review the code of ethics to see if the issue is addressed. When applying ethical standards to specific cases, you need to carefully read the code and understand the implications of the standards. Rather than making a decision to act on the basis of a single standard, look for all the standards that pertain to a situation. If there are specific and clear guidelines, following them may resolve the problem. However, if the problem is more complex and a resolution is not apparent, you may need to employ additional steps to resolve the problem. Ask yourself whether the standards of your professional organization offer a possible solution to the problem. Consider whether your own values and ethics are consistent with or in conflict with the relevant codes. If you are in disagreement with a particular standard, do you have a rationale to support your position? Your state or national professional association may be able to provide you with guidance in resolving a dilemma. Such associations often make legal counsel available to their members.

4. Know the applicable laws and regulations. It is important for you to keep up to date on relevant state and federal laws. This is especially true in matters of keeping or divulging confidentiality, reporting child or elder abuse, dealing with issues pertaining to danger to self or others, parental rights, record keeping, assessment, and diagnosis. In addition, be sure you understand the current rules and regulations of the agency or organization where you work.

5. Obtain consultation. It is generally helpful to consult with one or more colleagues or with a supervisor or other expert to obtain a different perspective on the problem. Do not limit yourself to individuals who share your orientation. Poor ethical decisions often result from an inability to view a situation objectively. Prejudices, biases, personal needs, or emotional

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investment can distort the perception of the dilemma (Koocher & Keith- Spiegel, 2016). Consider the emotions you are experiencing as you assess the situation. Consultation can help you determine how you may be influenced by feelings such as fear and self-doubt (Herlihy & Corey, 2015a). If there is a legal question, seek legal counsel. After you present your assessment of the situation and your ideas of how you might proceed, ask for feedback on your analysis. Reflect on questions such as these: • What kinds of questions do you want to ask of those with whom you

consult? • How can you use the consultation process as an opportunity to test the

justification of a course of action you are inclined to take? • Are you considering all of the ethical, clinical, and legal issues involved in

the case? • Are there any questions you are afraid to ask? Consultation can help you think about information or circumstances that you may have overlooked. It is imperative to document the nature of your consultation, including the suggestions provided by those with whom you consulted.

6. Consider possible and probable courses of action. Brainstorm as many possible courses of action as you can. In doing so, ask colleagues to help you generate potential courses of action. By listing a wide variety of courses of action, you may identify a possibility that looks most useful to you. Evaluate each option with reference to the potential consequences for all parties involved. Eliminate those options that do not promise to give the desired results or that may have problematic consequences. As you think about the many possibilities for action, discuss these options with your client, if or when appropriate, as well as with other professionals. Care needs to be taken to ensure that the client does not become the “helper” when the client is included in these discussions. Determine which of the remaining options or combination of options is best suited to the situation. A good guideline in choosing your course of action would be the degree to which you would feel comfortable knowing your actions would be published in the newspaper, posted on the Internet, or mentioned in the news on radio or television. If your answer is “no,” you have reason to reconsider your selected course of action.

7. Explore the consequences of various decisions. Ponder the implications of each course of action for the client, for others who might be affected by the decision, and for you as the counselor. Again, a discussion with your client about consequences for him or her can be most important, when appropriate. Realize that there are likely to be multiple outcomes, rather than a single desired outcome in dealing with an ethical dilemma. Continue brainstorming and reflecting on other options as well as consulting with colleagues who may see possibilities that have not occurred to you (Remley & Herlihy, 2020). Review the consequences of key decisions to determine if any new ethical problems might arise. If so, go back to the beginning and reevaluate each step of the process.

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8. Decide on the best course of action. In making the best decision, carefully consider the information you have received from various sources. The more obvious the dilemma, the clearer is the course of action; the more subtle the dilemma, the more difficult the decision will be. In carrying out your plan, realize that other professionals might choose different courses of action in the same situation. However, you can only act in accordance with the best information you have. After you carry out your course of action, it is wise to follow up on the situation to evaluate whether your actions had the anticipated effect and consequences (Herlihy & Corey, 2015a). Determine the outcomes and see if any further action is needed. Reflecting on your assessment of the situation and the actions you took is good practice if you are to learn from your experience. Wheeler and Bertram (2019) recommend careful documentation of the ethical decision-making process you used in arriving at a course of action, including the options you considered and ruled out. It is important to document the outcome and to include any additional actions that were taken to resolve the issue. This is where reviewing your notes can be particularly helpful in assessing the process. To obtain the most accurate picture, involve your client in this process, when appropriate. Even if you follow a systematic model such as the one we have described,

you may still experience some anxiety about whether you made the best possible decision in a given case. Many ethical issues are controversial, and some involve blending ethics and the law. An important sign of your good faith is your willingness to share concerns or struggles with colleagues, supervisors, and fellow students. It is essential that you keep abreast of the laws that affect your practice, maintain awareness of new developments in your field, and reflect on ways that your values will influence your practice. Developing a sense of professional and ethical responsibility is a task never completely finished.

Case example: Applying the eight-step ethical decision-making model to the case of Bob. To illustrate how a helper might navigate the process of working through complex ethical issues, we present the case of Bob and apply the eight-step ethical decision-making model to his situation. As you review this case and Bob’s ultimate decision, what are your reactions? If you were in his shoes, would you follow the same course of action? Why or why not? Can you think of any additional factors that might influence your decision if you were the intern faced with this dilemma?

The case of Bob. Bob is a counseling intern working at a community mental health agency. He has considerable experience working with clients with various disabilities. He felt inspired to work with individuals with disabilities because his brother has Down syndrome. Other than his personal experience with people with disabilities, he has had no formal training working with clients with autism. Joseph, a client with autism, has just been referred to him. Joseph’s presenting concerns are wanting to improve his interpersonal relationships, anxiety, and depression. Bob is unsure about accepting this client due to the fact that he lacks formal training in working with clients with autism, and he is concerned about the ethics of practicing beyond the scope of his competence.

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Applying the eight steps. Step 1: Identify the problem or dilemma. The dilemma is whether or not Bob has the competence to engage in counseling with an individual with autism. This is both an ethical and a clinical problem.

Step 2: Identify the potential issues involved. The ethical component centers around Bob practicing beyond the scope of his competence and training. Bob’s inexperience with autism could lead him to an intervention that is counterproductive for someone with autistic traits, resulting in regression of previous behavioral gains.

Joseph’s concerns seem to encompass environmental issues not specifically related to autism. Bob has a lot of experience working with Joseph’s presenting concerns of interpersonal relationship problems, anxiety, and depression. Bob has excellent counseling skills, a desire to work with this population, and a considerable amount of experience personally and professionally with people with disabilities, which could guide him to refer Joseph if he determined that Joseph could be best served by a specialist.

A number of clinical issues also must be considered. Joseph is not defined by his autism—it is only a part of who he is. How would Joseph feel knowing that Bob had referred him elsewhere because he has autism? In addition, Bob is aware that services at his agency are low-cost, whereas therapists in private practice in his area who specialize in autism charge substantially higher fees. Joseph may simply go without counseling if he cannot afford counseling with one of these specialists.

Step 3: Apply the relevant ethics code. The ACA Code of Ethics (ACA, 2014) states the following on the boundaries of professional competence:

Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Whereas multicultural counseling competency is required across all counseling specialties, counselors gain knowledge, personal awareness, sensitivity, dispositions, and skills pertinent to being a culturally competent counselor in working with a diverse client population. (Standard C.2.a.)

Bob wonders if a therapist needs to be specifically trained in working with clients with autism. If so, just how much training does Bob need to be competent? If Bob does accept Joseph as a client, he would need to seek consultation or supervision from a colleague more knowledgeable about autism.

Step 4: Know the applicable laws and regulations. There are no laws on this issue per se, such as those for abuse, but there are laws against discrimination of individuals with disabilities. If Bob refers Joseph solely on the basis of his autism, could this be viewed as discriminatory?

Step 5: Obtain consultation. Bob brings this ethical dilemma to his supervisor and supervision group. His supervisor has experience supervising interns working with clients with autism, and she encourages him to work with Joseph under her supervision. The supervisor suggests that Bob take a continuing education class on autism. In addition, Bob consults with an independent private practice therapist who specializes in autism who concedes that it would not be unethical for Bob to treat Joseph given these conditions. However, the therapist wonders whether Joseph would receive the best quality of care possible given

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Bob’s lack of clinical experience with autism. Bob documents all the advice from the consultations.

Step 6: Consider possible and probable courses of action: One course of action is to refer Joseph to private practitioners in the community who specialize in autism spectrum disorders. Another possible course of action is for Bob to accept Joseph as a client while Bob obtains continuing education relevant to autism. During this time, Bob’s supervisor would closely monitor his progress and effectiveness when working with Joseph. A third course of action is for Bob to place Joseph’s name on a waiting list for a therapist with training in autism spectrum disorders rather than taking on this client himself.

Step 7: Explore the consequences of the various decisions. Referring Joseph to a private practice therapist who specializes in clients with autism spectrum disorders would be ideal if Joseph can afford this service. If Joseph cannot afford the private practice fees, he will not receive any services. In that case, Joseph’s presenting concerns will go untreated, leading to worsening symptoms and decreased quality of life. If Bob works with Joseph under supervision, Bob would gain experience with clients with autism, and Joseph would be able to address the issues he is bringing to counseling. Placing Joseph on a waiting list for a therapist with training in autism would delay Joseph’s treatment for an unspecified period of time until the colleague has an opening in his caseload. Similar to the first option, a worsening of symptoms is probable due to this delay.

Step 8: Decide on the best course of action. Bob carefully considers all relevant aspects of this ethical dilemma and decides to speak to Joseph about his concerns. Bob has an open discussion with Joseph explaining his inexperience and that he will work with Joseph under supervision. Bob provides Joseph with an adequate amount of information for Joseph to make an informed decision about his treatment. Bob takes the advice of his supervisor to get more training and signs up for a continuing education class, receives some training on autism from a colleague, and works closely with his supervisor. He also collaborates with Joseph and discloses that although he has been obtaining more education in this area there are others with more experience. Both parties agree to the counseling relationship, and Bob continues his education, supervision, and consultations with his colleagues.

Informed Consent For most clients, asking for formal or professional help is a new experience. They are often unclear about what is expected of them and what they should expect from the helper. The ethics codes of the various professional organizations require that clients be given adequate information to make informed choices about entering and continuing in the therapeutic relationship. A good way to safeguard the rights of clients is to develop procedures to help them make informed choices. Informed consent involves the right of clients to be informed about what their relationship with you will entail and to make autonomous decisions pertaining to it. Informed consent enables your clients to decide whether to participate in the helping relationship with you. The informed consent document defines boundaries and clarifies the nature of the basic counseling relationship between counselor and client. Informed consent for

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treatment is a powerful clinical, legal, and ethical tool (Wheeler & Bertram, 2019). Through the informed consent process, you are giving your clients an opportunity to raise questions and to explore the expectations they have in working with you.

Part of ethical practice is having a discussion with clients about their rights. Clients are often unaware of their rights, and they may unquestioningly accept whatever their therapist says or does. How can you teach your clients about their rights and responsibilities from the outset of the helping relationship? Asking clients to sign a form at the initial session does not discharge your duty toward informed consent. Although it is imperative that you secure informed consent at the outset of a helping relationship, realize that clients may not remember all that you tell them. Active informed consent is an ongoing process in the counseling relationship, not a single event (Wheeler & Bertram, 2019).

In addition to discussing the main points of your informed consent policies with clients in the first session, we also suggest that you develop a comprehensive written statement to give to clients at the first session. Clients can take this statement home to read before the next session. In this way clients have a basis for asking questions and valuable time is saved. It is important to have clients sign the document indicating an understanding of these policies and procedures.

Describing informed consent involves a delicate balance between telling clients too little and overwhelming them with too much information at once. Educating clients about the therapeutic process is an ongoing endeavor. Do not assume that clients clearly understand what they are told initially about the helping process. The more clients know about how the helping process works, including the roles of both client and practitioner, the more they will benefit from this professional relationship. By alerting clients to their rights and responsibilities, the practitioner is encouraging a sense of autonomy and personal power. Be sure to use clear and understandable language when you are discussing informed consent matters with clients. Furthermore, you need to take into account cultural implications of informed consent procedures and communicate in ways that are culturally sensitive. For instance, suppose your client is a refugee who experienced persecution in her country. She may have concerns that information she shares privately with you will be disclosed to others, and she understandably may have reservations about meeting with you if you do not clearly explain confidentiality and its limits. Clients from collectivistic cultures may have a different view of professional boundaries, and you may need to take time to educate these clients about the therapeutic relationship (Bemak & Chung, 2015; Chung & Bemak, 2012).

Although most professionals agree on the ethical duty to provide clients with relevant information about the helping process, there is not much consensus about what should be revealed and in what manner. Studies of therapists’ informed consent practices have found considerable variability in the breadth and depth of the informed consent given to clients (Barnett, Wise, et al., 2007). In deciding what you would most want to tell a client, consider these questions: • What are the goals of the helping relationship? • What services are you able and willing to provide?

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• What do you expect of your client? What can your client expect of you? • What are the risks and benefits of helping strategies that are likely to be

employed? • What do you want to tell your client about yourself? • What are your qualifications as the provider of the services? • What are the financial considerations? Do you offer a sliding scale for clients

who cannot afford your fee? Do you accept private insurance for your services?

• What is the estimated duration of the professional relationship? How will termination be handled?

• What are the limitations of confidentiality? When does the law require mandatory reporting?

• Under what circumstances are you likely to consult with a supervisor or other colleagues about the case?

• Are there any alternatives to the approaches you might suggest? If you are part of a managed behavioral health care program, you will also

need to explain to your clients the number of sessions allowed, the limitations of confidentiality, and the narrower scope of short-term interventions.

Case example: Providing just enough information. During the initial interview, Simone asks the counselor, Allen, how long she might need to be in therapy. Allen tells Simone that the process will take a minimum of 1 year of weekly sessions. She expresses dismay at such a lengthy process. Allen says that this is the way he works and explains that in his experience significant change is a slow process that demands a great deal of work. He tells Simone that if she cannot commit to this time period he would be willing to give her a referral.

Your stance. Consider what you would do if Simone came to you for counseling. Explore the following questions: • Does Allen have an ethical and a professional obligation to explain his

rationale for the 1 year of therapy? • Would an ethical course involve Allen exploring alternatives to his approach

to therapy, such as briefer therapy? • Would it be ethical for Allen to accept clients under a managed care system

or with an insurance provider that paid for only a very limited number of sessions? Discussion. When clients finally make an appointment, they are often anxious

to get help on some pressing problem. Talking about the informed consent process in great detail could dampen the client’s inclination to return for further sessions. Yet it is a mistake to withhold important information that clients need if they are to make wise choices. What and how much to tell a client is determined in part by the client. It is a good practice for helpers to employ an educational approach, encouraging clients’ questions about evaluation or treatment and offering useful feedback as the helping process progresses. By providing your clients with adequate information, you are increasing the chances that they will become active participants and carry their share of the responsibilities in the relationship.

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Confidentiality and Privacy The helping relationship is built on a foundation of trust. If clients do not trust their counselor, they are unlikely to engage in significant self-disclosure and self- exploration. Trust is largely measured by the degree to which clients feel assured that what they say will be listened to and kept confidential. Mental health professionals have a dual ethical and legal responsibility to safeguard clients from unauthorized disclosures of information given in the context of the helping relationship. Helpers must not disclose this information except when required by law or authorized by the client to do so.

To explore all aspects of their lives without fear that these disclosures will be released outside the therapy room, clients need reasonable assurance that their confidentiality will be maintained. No effective therapy can occur unless clients trust that what they say is confidential. Counselors are ethically obligated to clearly assist clients in appreciating the meaning of confidentiality in language they can understand and in using an approach that respects the cultural experiences of the client (Barnett & Johnson, 2015).

Confidentiality is one of the most basic ethical obligations, yet it is also one of the most problematic issues for many practitioners. Helpers increasingly confront confidentiality issues that are created by complex legal requirements, new technologies, health care service delivery systems, and a culture that places increasing emphasis on consumer rights.

Although your clients have every right to expect that their relationship with you will remain confidential, your obligation to safeguard client disclosures is not absolute. You need to develop the legal knowledge and an ethical sense for when you must break confidentiality. All of the professional codes state that clients have a right to know about any limitations of confidentiality from the outset. This matter should be spelled out for clients in their informed consent, ideally in both written and verbal form. Mandated reporting issues should be clearly explained prior to any client disclosures to help ensure that clients understand exactly when you may need to report child or elder abuse or suicidal or homicidal suspicions. When clients have this information early, the chances of preserving the therapeutic relationship are improved when mandated reporting incidences occur. It is a good idea to discuss the following points with your clients (Herlihy & Corey, 2015c): • Do not reveal confidential information without client consent, or without

sound legal or ethical justification. • Some clients may want confidential information shared with members of

their family or community. • At times, it is permissible to share information with others in the interest of

providing the best possible services to the client. • Confidential information may also be discussed with other helping

professionals when the client requests it or gives permission. • Confidentiality is not an absolute, and other obligations may override the

helper’s pledge. For example, it is required that confidentiality be breached to protect someone who is in danger.

• Confidentiality cannot be guaranteed when the client is a minor or when counseling couples, families, or groups.

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• Confidentiality can be compromised if a client’s records are subpoenaed. • At the outset of a professional relationship, practitioners should clarify what,

when, how, and with whom information can be shared. • When counselors assume the role of advocate, client confidentiality may

be breached. Ethical dilemmas can occur when clients are unwilling to give consent for the counselor to advocate on their behalf.

• Confidentiality may be compromised if client records are stored via cloud computing and during other electronic communication. State law specifies the circumstances under which confidentiality must

be compromised. You may have to reveal information when there is clear and imminent danger that clients will bring harm to others or to themselves. Know the laws in your state as there may be options other than breaking confidentiality available to you. Not all states have the same laws, but all states have mandatory reporting laws for incest and child abuse, and most states have mandatory reporting laws for elder abuse and dependent adult abuse. You are expected to know how to assess signs of abuse and neglect. All states require reporting child abuse or neglect if it results in physical injury. In addition, you are expected to take action when clients are likely to harm themselves or others. If a client is suicidal, you have a responsibility to do what you can to protect this person.

Human services professionals are vulnerable to lawsuits if they improperly handle confidentiality issues, so it behooves you to know the laws of your state or jurisdiction, to follow them, and to be aware of the ethical standards of your profession. Seek help from your professional organization when dealing with complex ethical dilemmas.

To sharpen your thinking about issues surrounding confidentiality, think about what you would do in these cases: • Child abuse. Two young girls are brought to a community agency by their aunt,

who has gained custody of them in the last few months. One girl, age 11, is quite verbal, but the other, 13, is not. As they begin to talk and you ask about their history, they tell you of aunts and uncles who attempted to touch one of them and of an aunt who severely beat them. The 11-year-old tells of a suicide attempt by her sister after one such beating. If you were working with these girls, what action would you take and why?

• An alternative form of medicine or elder abuse? A 69-year-old client who has been having difficulty with her jealous and controlling son enters her counselor’s office for her weekly session. The counselor notices that her client has bruises on her neck and upper back. When asked about these marks on her skin, her client quickly replies that she is undergoing cupping therapy for a respiratory condition. The counselor is left wondering whether her client is being straightforward with her or whether she is covering up for her son. If you were the counselor in this case, how would you proceed?

• Runaway plan. A student intern works with pupils in an elementary school. She says to the children in a group, “Everything you say here will stay here.” Then a boy reveals a detailed plan to run away from home. The counselor, who has not talked about the exceptions to confidentiality with the children, does not know what to do. If she reports the boy, he may feel betrayed. If she does not report him, she may face a malpractice action for having failed to notify the parents. What might you suggest to her if she came to consult with you about this case?

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• Students’ violation of confidentiality. You are a counselor intern in a local agency. You are part of a training group of students that meets weekly to discuss cases. One day, while you are having lunch in a restaurant with some of the students, they begin to discuss their cases in detail, mentioning names and details of the clients loudly enough for others in the restaurant to overhear. What would you do in this situation? It is tempting to talk about your clients and their stories, especially as others

are usually curious about what you do. It may give you a sense of importance to be able to tell interesting anecdotes. You may talk more than you should when you feel overwhelmed by your clients and need to unburden yourself. As a professional helper, you must learn how to talk about clients and how to report without breaking confidentiality. Clients should know that confidentiality cannot be guaranteed absolutely, but they should have your assurance that you will avoid talking about them except when the law requires you to disclose information or it is professionally necessary to do so.

Confidentiality in Couples and Family Therapy Confidentiality is also a key ethical issue in the practice of couples and family therapy. Generally speaking, from a legal perspective, confidentiality as applied to couples counseling, family therapy, group counseling, and counseling minors has limitations. However, from an ethical perspective, confidentiality is of the utmost importance and must be discussed so all parties are aware of what confidentiality involves in these forms of counseling. When practitioners work with couples and families, confidentiality issues can become extremely complex and may involve determining who is the client, providing informed consent, and handling relational matters in an individual context (James Bitter, personal communication, December 21, 2018). Some helpers contend that whatever information they get from one family member should never be divulged to the other members. By contrast, other helpers have a policy of refusing to keep any information private within the family. Their assumption is that secrets are counterproductive to helping family members be open with one another. These helpers encourage bringing all secrets out into the open. It is essential that you be clear in your own mind about how you will deal with disclosures obtained from family members and that you let your clients know your policy before they enter into a professional relationship with you.

Case example: Concealing information in couples counseling. Owen is involved in individual therapy, and later his wife, Flora, attends some of the sessions for marriage counseling. Owen discloses to the therapist that he became involved in a sexual relationship with a man a few months previously. He does not want his wife to know for fear that she will divorce him. In a later session in which the therapist is seeing the couple, Flora complains that she feels neglected and wonders if her husband is really committed to working on their marriage. She says that she is willing to continue marital counseling as long as she is sure that he wants to stay in the marriage and devote his efforts to working through their difficulties. The therapist knows about the extramarital relationship but decides to say nothing about it in the joint session and maintains that it is the husband’s decision whether to mention it.

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Your stance. What do you think of the therapist’s ethical decision in this situation? If you were involved in a somewhat similar situation, what might you do differently? Are you concerned about his withholding this information from Flora?

Discussion. Without question, this therapist is faced with a difficult situation. We wonder how confidentiality was initially explained to Owen during the informed consent process, and whether Flora also was given this information later when she joined Owen in marriage counseling. Did this therapist tell Owen that Flora would not be privy to any information he revealed in private sessions if she joined him for sessions? Did Flora understand that as well? If the therapist clearly stated in her informed consent document that information presented would not be withheld from either person, these clients would have understood the potential ramifications of their disclosures and Owen might not have disclosed information about his extramarital relationship to the counselor. When working with couples and families, it is imperative to be clear from the outset about how sensitive disclosures will be handled.

Confidentiality in Group Counseling When you lead a group, you will have to consider some special ethical, legal, and professional aspects of confidentiality. In a group setting, you must disclose the limitations of confidentiality. Because so many more people are privy to information shared in the group, you cannot guarantee confidentiality because you cannot control what the members do or say outside of the sessions. You should explain that legal privilege (confidentiality) does not apply to group treatment, unless provided by state statute (Association for Specialists in Group Work [ASGW], 2008). Group practitioners owe it to their members to specify at the outset the limits of confidentiality, and in mandatory groups they should inform members of any reporting procedures required of them. Members should also be aware of any required documentation or record keeping procedures that may have an impact on confidentiality. Even if you continually emphasize to the members how essential it is to maintain confidentiality, there is still the possibility that some of them will talk inappropriately to others about what has been shared in the group. The group leader has the responsibility for explaining how confidentiality can be broken, even without intending to do so. It is a good practice to remind the participants from time to time of how confidences can be breeched inadvertently and in subtle ways.

Confidentiality is essential if members are to develop a sense of safety in a group, which is basic to being willing to engage in risk-taking. Early in a group’s life, the group leader can provide guidelines for maintaining the confidential nature of the group. The leader can emphasize to members that it is their responsibility to continually make the group safe by addressing their concerns regarding how their disclosures will be treated. Members can be encouraged to bring up any fears about possible breaches of confidentiality, and these concerns can be openly explored in the group.

In institutions, agencies, and schools, where group members know and have frequent contact with one another and with one another’s associates outside of the group, confidentiality becomes especially critical and also more

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difficult to maintain. Group counselors are responsible for addressing the parameters of online behavior through informed consent and are advised to establish ground rules whereby members agree not to post pictures, comments, or any type of confidential information about other members online. Developing rules that address the use of online discussion outside of the group should be part of the informed consent process and part of the discussion about group norms governing the group.

Confidentiality in School Counseling In the context of school counseling, protection of confidentiality and privacy is a major concern. Children and adolescent clients have a right to know what information will and will not be kept confidential from their first contact with a school counselor. In cases involving minors who are unable to give informed consent, the parents or guardians will need to provide this informed consent and may need to be included in the counseling process. Parents and guardians have some legal right to request information about counseling sessions, as do school personnel, but this should be done in a manner that will minimize intrusion of the child’s or adolescent’s privacy and in a way that demonstrates respect for the student. School counselors must clearly inform the students they see of the limitations of confidentiality and how and when confidential information may be shared.

The ASCA Ethical Standards for School Counselors (2016) addresses key parameters of confidentiality:

School counselors recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/ guardians’ legal and inherent rights to be the guiding voice in their children’s lives. School counselors understand the need to balance students’ ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child’s behalf. (A.2.f.)

When minor clients pose a danger to themselves or to others, school counselors must breach confidentiality. From both an ethical and legal perspective, any threat of suicide or of violence to others must be taken very seriously. Even if the risk of suicide is remote, the possibility may be enough to establish a duty to contact the parents and inform them of the potential for suicidal behavior. Courts have found that the burden involved in making a telephone call is minor considering the risk of harm to a student who is suicidal. In short, school personnel are advised to take every precaution to protect the student. The same is true in all cases where there is a potential for violent acts. This is especially relevant in light of the increasing number of school shootings in recent years. Some potential tragedies have been averted because a teacher or a student took action when concerned about the violent intentions expressed by a student.

Continuing education is of the utmost importance, as is your willingness to seek appropriate consultation when you become aware of students who are at risk. You can be held legally accountable only for a judgment that is clearly negligent in light of the standard of care of other professionals with similar

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education and experience. As long as you act in an ethical and reasonable manner, you should not be overly concerned about legal sanctions related to student suicide or harm to others.

Case example: Informing parents and respecting confidentiality. Conrad, a 17-year-old high school senior, was referred to a psychologist, Andy, by his high school counselor for an evaluation for depression. Conrad currently lives at home with his parents and two younger siblings. He stated during the intake that for the past 2 years he has struggled academically and socially and has felt depressed for most of this time. His grades have suffered, and he has become more socially withdrawn. As a coping mechanism, he writes and plays music in his room. He plans to remain home following graduation and will attend community college. Andy has met with Conrad for a total of four sessions, and he has been very responsive to talk therapy. Following the last session, Andy received a telephone message from Conrad’s mother wanting an update on his progress and to share some information that she thinks is pertinent to his case.

Andy tells Conrad that his mother left a telephone message and that she seems to be interested in his progress. Conrad is not sure if he wants Andy to speak with his mother because he doesn’t trust what his mother might share with Andy.

Your stance. What are the legal and ethical issues to examine? How do you navigate the needs of the client and the needs of his parents to be informed? Can you think of interventions that could be helpful to Conrad and his parents?

Discussion. Andy might discuss with Conrad the possibility of inviting both of his parents to a session. This approach would empower Conrad to remain active and in charge of his treatment decisions, and it would prevent trust issues from occurring between Conrad and Andy. Before Conrad’s parents attend a session, however, it would be worthwhile for Andy to explore with Conrad his concerns about what his mother might disclose about him. What is Conrad’s fear? Is he concerned that his mother might reveal something that would shed a negative light on him or his family? This exploration could lead to some meaningful and productive therapeutic work.

Confidentiality and Privacy in a Technological World One of the most dramatic changes in the counseling profession over the last decade has been the use of technology in counseling services (Jencius, 2015). Counseling codes of ethics have not been able to keep pace with the rapid development of electronic communication, and a host of ethical and legal issues are associated with various new technologies. Section H of the recently revised ACA Code of Ethics (ACA, 2014) contains standards with regard to the use of technology, relationships established through computer-mediated communication, and social media as a delivery platform. Major subsections in Section H address competency to provide services and the laws associated with distance counseling, components of informed consent and security (confidentiality, limitations, and security), client verification, the distance counseling relationship (access, accessibility, professional boundaries), maintenance of records and accessibility of websites, and aspects of the use of social media.

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There are a host of ways to violate a client’s privacy through the inappropriate use of various forms of technology. Although the use of encryption software is important, confidentiality simply cannot be guaranteed. This is arguably one of the great challenges of practicing counseling in this era of electronic communication. Communication by electronic means is fraught with potential privacy problems.

Counselors and their clients should carefully consider privacy issues before agreeing to send e-mail messages to clients’ workplaces or homes. A good policy is to limit e-mail exchanges to basic information such as an appointment time. Tran-Lien (2012) recommends that counselors who plan to exchange e-mails with their clients provide clients with a statement (as part of the informed consent process) that details guidelines and the limitations on the use of e-mail, the potential risks to confidentiality, and the expected turnaround time. She suggests that “communicating with your clients via e-mail can be done, but careful consideration should be given to the guidelines and relevant legal and ethical issues” (p. 22). Both the challenges and the safeguards in using e-mail as a mode of communication should be clearly explained.

Although privacy and confidentiality of clients has long been a central issue, with electronic transactions things have become more complex. The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was passed by Congress to promote standardization and efficiency in the health care industry. HIPAA is a federal law that contains detailed provisions regarding client privacy, informed consent, and transfer of records. Counselors are required to provide clients with a clear written explanation of how health information is used and kept (Remley & Herlihy, 2020).

The HIPAA privacy rule was designed to give patients more rights and more control over their health information. Patients must be informed of their rights and are required to sign the appropriate forms authorizing a health care provider to obtain and provide information to other health care providers. The HIPAA privacy rule, which applies to both paper and electronic transmissions of protected health information by covered entities, was developed out of the concern that transmission of health care information through electronic means could lead to widespread gaps in the protection of client confidentiality (Wheeler & Bertram, 2019). The new privacy regulations protect patients by limiting the ways that practitioners can use patients’ medical information and other individually identifiable health information. The privacy rule requires health plans to establish policies and procedures to protect the confidentiality of protected health information about their patients.

Most of us have become so accustomed to relying on technology that careful thought is not always given to subtle ways that privacy can be violated. It is of the utmost importance to use caution and pay attention to ways that you could unintentionally breach the privacy of your clients when using various forms of communication. As a part of the informed consent process, it is wise to discuss with your clients the potential problems of privacy regarding a wide range of technology and to take preventive measures so that both you and your clients have an understanding and agreement about these important concerns. Consider the following case pertaining to privacy issues in an agency setting.

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Case example: Privacy issues and telecommunications. The agency you work for establishes a call center to take calls from clients and to schedule appointments for them. One of their new policies is to call clients to remind them of their upcoming appointment. A particular client has stated clearly that she does not want her husband to know that she is coming for counseling. However, a call center phone representative calls her residence to remind her of her next appointment, and in the process her husband gets the message about her upcoming appointment for counseling.

Your stance. Do you see an ethical issue pertaining to privacy or confidentiality in this case? How would you reconcile agency policy and client privacy in a situation such as this? How would you handle the client’s phone call to you complaining about what has happened?

Discussion. Although this breach of confidentiality was unintentional and resulted from a lapse in communication between agency staff and the call center, the ramifications of this ethical violation may be serious. This client may have any number of reasons for wanting to conceal from her husband the fact that she is in counseling. She has every right to complain about this breach of privacy. It is important for the therapist to hear her concerns without reacting defensively and to apologize on behalf of the agency for this error.

This case example illustrates how easily breaches of confidentiality can happen if you do not exercise caution. It is a good practice to discuss during the initial contact how the client prefers to be reached so that confidentiality is honored. It is of paramount importance that agency staff take every measure to protect clients’ privacy.

Privacy in a Small Community I (Marianne) practiced for many years as a marriage and family therapist in a small community. This situation presented a set of ethical considerations involving safeguarding the privacy of clients. First, it was important that I choose an office that afforded privacy to clients as they entered and left. I considered leasing space in a small professional building in the center of town, but I quickly discovered that people would be uncomfortable making themselves that visible when seeking psychological help. A home office, which was remote from the center of the village, worked out well. However, I had to carefully schedule clients, allowing ample time between sessions so clients who might know each other would not meet in the office. When an office is located within a home, it is essential that a professional atmosphere be provided. Clients have a right to expect privacy and should not have to deal with intrusions by the therapist’s family members.

I discussed with my clients the unique variables pertaining to confidentiality in a small community. I informed them that I would not discuss professional concerns with them should we meet at the grocery store or the post office, and I respected their preferences regarding interactions away from the office. Knowing that they were aware that I saw many people from the town, I reassured them that I would not talk with anyone about who my clients were. Another example of protecting my clients’ privacy pertained to the manner of depositing checks at the local bank. Because the bank employees knew my profession, it would have

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been easy for them to identify my clients. Again, I talked with my clients about their preferences. If they had any discomfort about my depositing their checks in the local bank, I arranged to have them deposited elsewhere.

Your Obligation to Protect Courts have created an exception to confidentiality when the mental health professional has a reasonable basis for believing that clients pose a danger either to themselves or to others. Counselors have a legal as well as an ethical responsibility to protect their clients and others from harm, and they must breach confidentiality when necessary to provide this protection. Wheeler and Bertram (2019) provide this risk management guideline: “The real question for the counselor is how to fulfill his or her legal and ethical duties to protect human life, act in the best interest of the client, and remain protected from potential liability” (p. 151).

Put yourself in this situation: A new client visits you at a college counseling center. He says he was severely abused by his father as a child and is now extremely angry. He is making threats to kill his father and tells you he is armed. How do you proceed? How do you decide whether this client is dangerous? What steps can you think of taking if you determine the client does pose a danger?

Many helpers find it difficult to predict when clients pose a serious threat to others. With more training and supervision, you will learn how to identify and assess the risk factors and warning signs for violence. Predictors of potential violence include a history of violent or aggressive behavior, verbal threats, threatening e-mails or letters, harassment (including sexual harassment and stalking), and possession of a weapon, particularly a firearm (“How to Recognize Students,” 2011). Although practitioners are generally not held legally liable for their failure to predict violent behavior of a client, an inadequate assessment of client dangerousness can result in liability for the therapist, harm to third parties, and inappropriate breaches of client confidentiality. Helping professionals faced with potentially dangerous clients should take specific steps designed to protect the public and to minimize their own liability. They should take careful histories, advise clients of the limits of confidentiality, keep accurate notes of threats and other client statements, seek consultation, and document steps they have taken to protect others.

It is extremely difficult to decide when breaching confidentiality to protect potential victims is justified. Mental health professionals are obligated to disclose when legal requirements demand it, and they must be familiar with the laws of their state regarding the duty to protect because state laws differ (Herlihy & Corey, 2015c). Practitioners are advised to consult with a supervisor, a colleague, or an attorney because they may be subject to liability for either failing to warn and protect those entitled to warnings or warning those who are not entitled. Most states either permit or require therapists to breach confidentiality to protect victims. In light of a number of court cases, mental health professionals have become increasingly conscious of a double duty—to protect other people from potentially dangerous clients and to protect clients from themselves. The responsibility to protect the public from potentially violent clients entails

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liability for civil damages when professionals neglect this duty by failing to diagnose or predict dangerousness, failing to protect potential victims of violent behavior, failing to commit dangerous individuals, and prematurely discharging dangerous clients from a hospital.

HIV issues. One of the more controversial ethical dilemmas pertaining to a helper’s duty to warn and protect others involves working with people who have AIDS, or are HIV-positive, and who may be putting others at risk. As a helper, you may need to balance your client’s right to confidentiality against warning a third party who may be at risk of being infected due to your client’s HIV status.

At this time, there is no legal duty to warn, and it will take a court decision to resolve the legal questions. In the meantime, practitioners who work with HIV-positive clients will continue to wrestle with the ethical issues in deciding on a course of action with their clients. It is difficult to identify who in particular is at risk and to assess the degree to which individuals who have intimate relationships with people with HIV are in serious and foreseeable harm. Disclosure requires a careful decision, and helpers should not take action until they have confirmed the diagnosis and have ascertained that the client has not informed the third party and has no intentions of doing so in the immediate future. It is critical that helpers know their state laws concerning the disclosure of disease status when considering what to do. The ACA Code of Ethics (ACA, 2014, Standard B.2.c.) gives practitioners permission to breach confidentiality in respect to contagious life-threatening diseases, but it does not state that they have a duty to warn, for such a provision could leave them vulnerable to a malpractice suit. We know several colleagues who have specialized in seeing people with HIV for many years, and they claim that they have never broken confidentiality in this kind of case. They contend that there are many alternatives to breaking confidentiality and warning a third party.

Case example: Duty to inform and protect others. One of your male clients discloses to you that he is HIV-positive, but he says nothing about his sexual practices with a partner or partners. At a later session, he discloses that he is not monogamous and that one of his partners is unaware of his condition. He has been engaging in unprotected sex with this person for some time, and he sees no point in either disclosing his condition or changing his sexual practices.

Your stance. What might you do in this case? How useful is the ACA guideline in determining your course of action? Would you initially address possible disclosure of information with others as part of the informed consent process? Why or why not? What do you see as your ethical and legal duty? How might you resolve potential conflicts between ethical and legal actions? How would you go about making your decision?

Discussion. Breaching confidentiality should be the last resort and should be considered only after less intrusive measures have failed (Corey, Corey, & Corey, 2019). First, try to help the client see the value of disclosing his HIV-positive status to his unsuspecting partner. Mental health professionals are not legally bound to uphold the “duty to protect” in cases involving HIV infection, and helpers’

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legal responsibilities for protecting sexual partners of HIV-positive clients remain unclear. Seek guidance from your state public health department, an attorney who specializes in these matters, colleagues who are experienced in ethical decision making, and your professional organization (Wheeler & Bertram, 2019). When consulting with others about how to proceed and determining a course of action, it is important to omit identifying information to protect your client’s privacy.

Harm to self. In addition to the duty to warn and to protect others from harm, helpers have a duty to protect clients who are likely to harm themselves. Many therapists inform their clients that they have an ethical and legal responsibility to break confidentiality when they have good reason to suspect suicidal behavior. Even if clients take the position that they are free to do with their lives what they want, therapists have a legal duty to protect them. The difficulty lies in determining when a client is serious about ending his or her life by suicide.

Although some practitioners may object to using coercive methods in preventing suicide out of their desire to honor the client’s right to self- determination, many mental health workers believe most suicides can be prevented if those who work with suicidal clients learn to recognize, evaluate, and intervene effectively in crisis situations. Clients in crisis may feel temporary hopelessness, but their potential for suicide can be greatly reduced if they are given help in coping with the immediate problem. Help clients differentiate between wanting to end their life and wanting to end their emotional pain and suffering. More often than not, the pain and suffering feels overwhelming, and recognizing this provides the opportunity for hope and therapeutic intervention. It is generally held that once mental health professionals determine that a significant risk does exist, appropriate action is necessary. Practitioners who fail to act to prevent suicide can be held liable.

The codes of ethics of professional associations are in agreement that helpers must actively attempt to prevent suicide. When assessing the lethality of a threat and determining whether further intervention is necessary, consider these issues: • Is there a plan? • Is clinical depression present? • Does the individual demonstrate helplessness or hopelessness? • Has there been a sudden and often dramatic change in mood or behavior? • Has the person attempted suicide in the past? • Is the person seriously considering taking his or her life? • Does the person have the means available? • Is a mental illness present? • What kind of emotional support is available in the family, at home, or

elsewhere? If clients do not voluntarily self-disclose intentions to harm themselves,

counselors may need to ask directly. Factors that could increase clients’ risk for self-harm include severe mental illness, substance abuse, recent loss, and acute medical conditions (Bongar & Sullivan, 2013). If it is determined that a client is at risk of suicide, it is the helper’s ethical responsibility to take action outside the session. Possible interventions might include informing the parents, spouse, physician, or another significant person in the client’s life. Helpers who do not

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think they can work competently with a client should seek supervision from a professional who has these skills or make the appropriate referral. Consultation helps to ensure that counselors are practicing up to the standards of care, making informed decisions about the exceptions to confidentiality, and accessing all current treatment options. It is extremely important that helpers appropriately document their assessment process, consultation activity, and treatment plan, including which interventions were chosen, the rationale for the decision, and why certain treatment options were not chosen (Werth & Stroup, 2015).

Case example: Protecting a depressed client. A client is depressed and talks about putting an end to his life. He tells you that he is bringing this topic up only because he trusts you, and he insists that you not mention the conversation to anyone. He wants to talk about how desperate he feels, and he wants you to understand him and ultimately to accept whatever decision he makes.

Your stance. Consider your ethical and legal obligations in this case. What would you say to him? How would you proceed?

Discussion. This case is a good reminder of the importance of discussing the limits of confidentiality at the outset of counseling, including the need to breach confidentiality when a client is in danger of self-harm. In this case, you may discover that the client does not have a plan or the intent to commit suicide, and talking with him may be cathartic and healing. Provide a list of resources the client can access if his suicidal feelings persist.

If talking with the client increases your concern, conduct a lethality assessment to determine if this client has a plan and the means and intent to carry out his plan. If he does, you are ethically obligated to breach confidentiality despite his objections. Clients should understand that the helper is obligated to take suicidal talk seriously and may have to take action to protect the client. Ultimately, it is better to have a client who is alive and angry than one who has completed the act of suicide. Anger can be processed and worked through, but there is no opportunity for a better outcome once a client has ended his or her life.

Case example: Acting on an informant’s knowledge. A college counselor receives an e-mail message from a friend of a current client, Sadie. The friend wants to remain anonymous. The message reveals that Sadie is suicidal and already has a detailed plan to carry out suicide. The counselor telephones Sadie and asks her to come over to the counseling center as soon as possible.

Your stance. Do you believe counselors have an ethical obligation to respond to e-mail messages? Was the college counselor inappropriate in calling Sadie for an emergency session in response to an e-mail from her friend? Does the counselor have a duty to warn Sadie’s family members? Do you think it was sufficient for the counselor to call the emergency session with Sadie?

Discussion. Suicidal threats need to be treated with extreme care and taken seriously. Sharing the information that was provided in the e-mail from a concerned friend, the counselor communicates to Sadie that this matter cannot be taken lightly. The counselor is behaving ethically by following up with Sadie and

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conducting a lethality assessment. The counselor has the right and responsibility to inform Sadie that a concerned friend contacted the counselor and is aware of Sadie’s detailed suicide plan. The counselor may also deem it necessary to contact Sadie’s parents after discussing this issue with Sadie. To protect Sadie’s right to privacy, the counselor cannot communicate with the concerned friend who sounded the alert in this case.

Documentation and Keeping Records From an ethical, legal, and clinical perspective, you are responsible to keep adequate records on your clients. It is considered below the standard of care to fail to keep current records for all your professional contacts. Many state licensing laws and regulations establish minimum guidelines for maintaining client records, but more often it is up to the discretion of the clinician to determine the content of records (Knapp & VandeCreek, 2012).

Record keeping serves multiple purposes. From a clinical perspective, record keeping provides a history that you can use in reviewing the course of treatment. Maintaining client records has a dual purpose: (a) to provide the best service possible for clients, and (b) to provide evidence of a level of care commensurate with the standards of the profession. From a legal perspective, state or federal law may require keeping a record, and maintaining adequate clinical records can provide an excellent defense against malpractice claims. Accurate, relevant, and timely documentation is useful as a risk management strategy.

Practitioners keep two kinds of client records. Progress notes, or the client’s clinical records, are required by law. These notes are behavioral in nature and address what people say and do. Progress notes contain client identifying information, the client’s history, reason for seeking treatment, and documentation pertaining to the informed consent process; objective findings from the most recent physical examination; intake sheet; documentation of referrals to other providers, when appropriate; client’s diagnosis, functional status, prognosis, symptoms, treatment goals, treatment plan, consequences, progress toward meeting goals, and alternative treatments; types of services provided; precise times and dates of appointments made and kept; and termination summary. Your client’s clinical record should never be altered after you have documented information into the record. It is a good idea to enter notes into a client’s record as soon as possible after a session and sign and date the entry.

Process notes, or psychotherapy notes, are different from progress notes. Process notes deal with client reactions such as transference and the therapist’s subjective impressions of a client. These notes are not meant to be readily disclosed to others. They are intended for the use of the practitioners who created them. Information that is essential for treatment should not be included in the process notes. For example, exclude from process notes the diagnosis, treatment plan, symptoms, prognosis, and progress. It is important to note that the law requires clinicians to keep a separate clinical record (progress notes) on all clients, but the law does not require keeping psychotherapy (process) notes.

From both an ethical and legal perspective, it is of the utmost importance that you store client records in a secure place and take steps to maintain the privacy of your clients’ records. The length of time you are required to keep

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a client’s records is determined by state law and the policies of your agency. Even when the record is discarded in a safe manner, a summary of a client’s treatment should be retained. Although this may seem rather straightforward, the emergence of advanced technologies such as cloud computing have made the storage and protection of client data a complex matter.

Realize that clients have a legal right to view their clinical record, or a summary of their record. A client’s record is not the place for your personal opinions or personal reactions to the client, and record keeping should reflect professionalism. If a client misses a session, it is a good practice to document the reasons. In writing client notes, it is important to use clear behavioral language. Focus on describing specific and concrete behavior and avoid jargon. When you write notes on your client, always assume that these records may be read by others. Although professional documentation is expected to be thorough, it is best to keep notes as concise as possible.

Be mindful of the dictum, “If you did not document it, then it did not happen.” Record client and helper behavior that is clinically relevant. Include in clinical records interventions used, client responses to treatment strategies, the evolving treatment plan, and any follow-up measures taken. It is a wise policy for you to document your actions in crisis situations such as cases involving potential danger of harm to self, others, or physical property. However, it is not in the best interests of clients for you to be more concerned about record keeping as a self-protective strategy than you are to providing quality services to your clients.

Competent record keeping practices serve both the client and the counselor. Wheeler and Bertram (2019) suggest that practitioners who fail to maintain adequate clinical records put themselves at risk for malpractice suits because such failure breaches the standard of care expected of mental health practitioners. They add: “Well-organized and well-documented client counseling records are the most effective tool counselors have for establishing client treatment plans, ensuring continuity of care in the event of absence, and proving that quality care was provided” (p. 153).

Ethical Issues in a Managed Care Environment In recent years a transformation has occurred in the delivery of helping services. As Cummings (1995) points out, there is a shift in values and a fundamental redefinition of the role of mental health practitioners in the transition from the traditional fee-for-service model to the managed care model, which is characterized by time-limited interventions, cost-effective methods, careful monitoring of services, and preventive more than curative strategies. This shift has implications for how you might view your role as a helper and how you may be expected to develop skills in brief interventions.

Key Ethical Issues Helpers in a managed care system clearly have divided loyalties between doing what is best for the client and keeping their commitment to a system that

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demands cost containment through a reliance on short-term interventions. Many times, clients need more than the very brief interventions that are available. It is important that the welfare of the client is not put on the back burner in the interests of preserving the financial integrity of the managed care system.

Managed care demands that practitioners adopt a set of values congruent with limited interventions that mainly treat symptoms. This could raise ethical issues for practitioners who value growth and actualization more than remedial, short- term, solution-focused strategies. Those who work in a managed care context face a number of ethical issues that revolve around these concerns: informed consent, confidentiality, abandonment, utilization review, and competence.

Informed consent. Informed consent is an ongoing process that assumes particular importance under a managed care system. Prior to entering into a professional relationship with you, your clients have a right to know that a managed care company may request a diagnosis, results on any tests given, a wide range of clinical information, treatment plans, and perhaps even the entire clinical record.

From an ethical perspective, clients have a right to know that the focus on cost containment may have an adverse impact on the quality of care available to them. Clients have a right to know that other forms of treatment, possibly ones that may be more helpful, are being denied to them solely for cost-containment reasons. They have a right to know if you are versed in brief therapy, that an outside person is likely to judge what kind of treatment will be given and how many sessions will be allowed, the specific limitations of the plan they are participating in, and who decides the time of termination of therapy.

Confidentiality. Although confidentiality has traditionally been considered to be an ethical and legal duty imposed on helping professionals to protect client disclosures, managed care has redefined the scope of confidentiality. Because managed care providers take an active role in treatment planning, client confidentiality is compromised. Although there have always been exceptions to confidentiality, the demand for client information inherent in a managed care framework far exceeds previous limitations to confidentiality to the extent that the confidential nature of the therapist–client relationship is threatened.

Clients should be aware that the managed care plan may require practitioners to reveal sensitive client information to a third party who is in a position to authorize initial or additional treatment. Practitioners can no longer assure their clients of confidential treatment at any level because they have no control over confidential information once it leaves their offices. Because of these restrictions on confidentiality, helpers must inform clients from the outset about the relevant limits of confidentiality under their managed care policy.

Abandonment. The codes of ethics of the various professional organizations state that mental health practitioners do not abandon clients. Traditionally, the matter of termination of therapy is a collaborative effort involving both the client and the helper. Ethically, professional helpers must not abandon their clients, and they have a responsibility to render competent services. Under managed care, many critical decisions are made for the client and the practitioner by the program, and termination generally does not come out of a collaborative process

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but from company policy. Clients may have a sense of abandonment if their treatment ends abruptly. It is a helper’s responsibility to inform clients that the request for additional sessions may or may not be granted by the managed care company. Managed care guidelines often limit treatment to a specific number of sessions annually with lifetime cost caps. Clients may be denied the care they need if it extends beyond their benefits and they are unable to pay for additional care.

Utilization review. Under managed care programs, all treatment is monitored by someone other than the practitioner. Utilization review refers to the use of predefined criteria to evaluate treatment necessity, appropriateness of therapeutic intervention, and therapy effectiveness. This process can take place before, during, and after treatment (Cooper & Gottlieb, 2000).

Competence. Those who work in a managed care system need to have special knowledge and skills competencies to deliver a variety of brief services in a flexible and holistic manner with a diverse range of client populations and client problems. This requires helpers to acquire an eclectic or integrative theoretical orientation. Mental health practitioners are forced to become more proficient in time-limited treatment approaches. Treatment plans need to be formulated rapidly, goals must be limited in scope, and the emphasis must be on attaining results. If helpers are not trained in brief treatment methods, and if clients will not be well served by a limited number of sessions, then helpers need to have skills in making appropriate referrals.

Legal Aspects of Managed Care Practitioners are ultimately responsible to their clients, even if the decisions are made by the managed care system. Legally, practitioners employed by managed care units are not exempt from malpractice suits if clients claim that they did not receive the standard of care they required. Professionals cannot use the limitations of the managed care plan as a shield for failing to render crisis intervention services, make appropriate referrals, or request additional services from the plan. Practitioners are sometimes caught in conflicting roles when they attempt to offer what the client needs versus what is covered by the managed care plan. Increasingly, mental health providers may feel pressure by third- party payers to limit the amount of care provided to the degree that the needs of clients may be compromised (Koocher & Keith-Spiegel, 2016). Regardless of the structure underlying the delivery of services, ethical practice requires that practitioners put the best interests of their client first.

Trends in Managed Care Many of you will be faced with finding a way to maintain your integrity while working within the constraints imposed by managed care programs. Accountability is being given increased emphasis in many work settings. Managed care requires that agencies and practitioners be accountable by demonstrating the efficacy of the services they provide. Increasingly, you will be expected to quickly assess the salient problems of your clients, provide a diagnosis, formulate a short-term treatment approach, and demonstrate the degree to which your interventions are effective.

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Malpractice and Risk Management Malpractice is generally defined as the failure to render proper service, through ignorance or negligence, resulting in injury or loss to the client. Malpractice is a legal concept involving negligence that results in injury or loss to the client. Professional negligence consists of departing from the usual standard of practice or not exercising due care in fulfilling one’s responsibilities (Corey, Corey, & Corey, 2019). The primary problem in a negligence suit is determining which standards of care apply to determine whether a clinician has breached a duty to a client. Practitioners are judged according to the standards that are commonly accepted by the profession; that is, whether a reasonably prudent counselor in a similar circumstance would have acted in the same manner (Wheeler & Bertram, 2019). You are expected to abide by legal standards and adhere to the ethics codes of your profession in providing care to your clients. Unless you take due care and act in good faith, you are liable to a civil lawsuit for failing to do your duty as provided by law. Malpractice lawsuits against mental health professionals have increased over the past decade, yet the total number of these lawsuits is relatively small (Remley & Herlihy, 2020). The best defense against becoming embroiled in a malpractice suit or having a complaint filed with the licensing board is to practice quality client care and to establish and maintain respectful and effective relationships with your clients.

For a malpractice suit to be filed against you, these four conditions must be present: (1) you must have a duty to the client (there must be a professional relationship between you and another person); (2) you must have acted in a negligent or improper manner or have deviated from the “standard of care” by not providing the expected level of services; (3) your client must have suffered harm or injury, which must be demonstrated; and (4) there must be a causal relationship between that negligence and the damage claimed by the client (Corey, Corey, & Corey, 2019).

Grounds for Malpractice Actions Grounds for malpractice actions vary in the helping professions. Malpractice is typically found in the following kinds of situations: (1) the procedure used by the practitioner was not within the realm of accepted professional practice; (2) the practitioner employed a technique that he or she was not trained to use; (3) the professional did not follow standard counseling procedures, which resulted in harm to the client; (4) the therapist failed to warn others about and protect them from a violent client; (5) informed consent to treatment was not obtained or not documented; or (6) the professional did not explain the possible consequences of the treatment (Wheeler & Bertram, 2019). Professional journals reveal an increase in citations for the abuse of alcohol and drugs because of the possibility of impairment. Driving under the influence is a serious offense and there are dire consequences imposed by many licensing boards for licensed practitioners who are convicted of a DUI offense.

As a student, you may think that you have no worries about being sued for malpractice. Unfortunately, student practitioners are vulnerable to such legal action. At this time in your professional development, you might well give

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serious consideration to ways in which you can lessen your chances of being sued for failing to practice in a professional manner. The reality of today is that even if you abide by the ethics codes of your profession and practice within the boundaries of the law, you can still be accused of wrongdoing. Even if the suit does not succeed, it is likely to be highly stressful, and it can take a toll on you in terms of time, energy, and money. You will have to spend many hours preparing and supplying documents and responding to requests for information. The best defense against becoming embroiled in a malpractice action is to practice quality client care and to know and follow the ethical standards of your profession.

Case example: Who is to blame? The counselor did a risk assessment of a teenage client that did not show suicidal intent, and the client initially denied any suicidal impulses. The client takes the step of suicide despite the therapist’s assessment and his best efforts to be of help. The child’s parents fault the therapist for not having known more and done more to prevent this final action.

Your stance. Consider your own stance on the duty to protect. Do you have to be able to predict a possible suicide? Assuming that you are able to identify a suicidal client, will you always know the best course of action to take?

Discussion. Although you do not have to prove that you are a perfect being, you do have to demonstrate that you possess and exercised the knowledge and skill required for the services you provided. You must be able to demonstrate that you acted in good faith, that you have been willing to seek supervision and consultation when needed, and that you have practiced within your competence. You are also expected to produce documentation to support your claims.

Ways to Prevent Malpractice Suits It should be clear that you would be wise to know your limitations in working with clients, to accept them, and to act only within the scope of your competence. Never hesitate to seek consultation, regardless of your professional experience. Consultation with colleagues often sheds light on a subject by providing a new and different perspective. Even if you are able to make wise decisions, it is validating to get support for your position from other professionals. If you are involved in litigation, it will be helpful to be able to demonstrate that your interventions were in accord with the standard of care exercised by other practitioners. It cannot be emphasized enough that adequate documentation is essential in defending yourself in any malpractice action. If you employ unusual therapeutic techniques with little rationale behind them, you are likely to find yourself the loser in a civil action. Contending that you were following your instincts and doing what “felt right” is not likely to get you very far if you are asked to defend your therapeutic practices.

Risk Management Risk management is the practice of focusing on the identification, evaluation, and treatment of problems that may injure clients, lead to filing of an ethics complaint to a licensing board, or lead to a malpractice action. One of the best precautions against malpractice is personal and professional honesty and

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openness with clients. Providing quality professional services to clients is the best preventive step you can take. You need to know your limitations and remain open to seeking consultation in difficult cases, and, of course, it is essential that you document the nature of any consultations.

If you want a guarantee that you will not be sued for professional negligence, you probably should think about another career. There are no absolute protections in the mental health professions, but some risk management practices can significantly decrease your chances of becoming involved in a legal action. As important as risk management strategies are, it can be a mistake to focus on them too much. Birrell and Bruns (2016) suggest that ethics is better viewed from a relational engagement approach rather than a risk management perspective: counselors need to open themselves to authentic mutuality so that “ethics becomes relational and alive and fully integrated into each moment of the clinical encounter” (p. 396).

When considering ways to implement risk management practices, keep in mind the quality of the relationship between you and your clients. Here are some additional guidelines: • Make use of informed consent procedures. Do not attempt to mystify the

helping process; professional honesty and openness with clients will go a long way in establishing genuine trust.

• Consider ways to define contracts with your clients that clearly structure the helping relationship. Clarify your role with your clients. What are your clients coming to you for? How can you best help them obtain their goals?

• Because you can be sued for abandonment, take steps to provide coverage for emergencies when you are going away.

• Restrict your practice to client populations for which you are prepared by virtue of your education, training, and experience. Refer clients who are clearly not within the scope of your competence and take steps to maintain your competence.

• Keep up-to-date and accurate records of clients and carefully document a client’s treatment plan. Develop a diagnostic profile, and keep relevant notes on each client.

• Become aware of local and state laws that limit your practice, as well as the policies of the agency for which you work. Keep abreast of legal and ethical developments by becoming involved in professional organizations.

• Be aware of the limits of confidentiality, and clearly communicate these to your clients. Attempt to obtain written consent whenever disclosure becomes necessary.

• Report any case of suspected child, elder, or dependent adult abuse as required by law.

• If you make a professional determination that a client is a danger to self or others, take the necessary steps to protect the client or others from harm. Document the actions you have taken.

• If you conduct online counseling, make sure you know the true identity and location of your clients in the event of an emergency (e.g., a suicidal crisis).

• If you are a provider of remote services or online counseling, demonstrate competence in both the services you offer and the technology you are using to deliver services.

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• Treat your clients with respect by attending carefully to your language and your behavior. Present information to your clients in clear language, and be sure they understand the information. This practice generally leads to good relationships.

• Obtain written parental consent when working with minors. This is generally a good practice, even if not required by state law.

• When in doubt about a situation, consult with colleagues and document the discussions. Consultation shows that you have a commitment to sound practice and that you are willing to learn from other professionals to further the best interests of your clients.

• Find sources of ongoing supervision. • If you are working with high-risk clients, consult and document the nature of

the consultation. • Establish and maintain appropriate professional boundaries. Learn to

anticipate problems and set ground rules. • Pay attention to how you react to your clients and monitor your

countertransference. • Avoiding imposing your values on your clients and avoid making decisions

for them. • Before engaging in any multiple relationships, seek consultation and talk

with your client about the potential advantages and disadvantages of such a relationship.

• Do not engage in sexual or romantic relationships with current or former clients or with current supervisees or students.

• Have a clear rationale for the techniques you use. Be able to intelligently and concisely discuss the theoretical underpinnings of your procedures.

• Have a clear standard of care that can be applied to your services, and communicate this standard to your clients.

• Do not promise clients anything that you cannot deliver. Help them realize that their effort and commitment will be key factors in determining the outcomes of the helping process.

• If you work for an agency or institution, have a contract that specifies the employer’s legal liability for your professional functioning.

• Abide by the policies of the institution that employs you. If you disagree with certain policies, first attempt to find out the reasons for them. Then see if it is possible to work within the framework of institutional policies.

• At the outset of therapy, clearly define issues pertaining to fees. Adhere to billing regulations and paperwork requirements as prescribed.

• Make it a practice to assess the progress your clients are making, and teach them how to evaluate their progress toward their goals.

• Let your clients know that they have the right to terminate professional services at any time they choose. The reasons for a client’s termination should be documented.

• Carry malpractice insurance. Students are not protected against malpractice suits. Student liability policies are offered through many professional organizations at modest prices. These guidelines will mitigate the chances of a malpractice suit or an ethics

complaint to a licensing board. Wilkinson, Smith, and Wimberly (2019) present findings of the types of ethical violations across state counseling licensing

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boards for professional counselors. The most frequent types of ethical violations included failure to comply with the appropriate amount of continuing education, dual relationships, and misrepresentation of credentials. In addition to these violations, other areas that led to disciplinary action by a licensing board include documentation, note-taking, billing practices, practicing while impaired, legal arrests, and the failure to obtain informed consent. We encourage you to continually assess your practices and keep up to date on legal, ethical, and community standards affecting your work setting and client populations. The best way to reduce the chance of an ethics complaint or a malpractice suit is to know the ethical and legal standards and to follow them.

A Word of Caution Students sometimes burden themselves with the unrealistic expectation that they should have clear answers for the ethical issues we raise in this chapter. Quite the contrary is true. Indeed, seasoned professionals are aware that the complex nature of their work with people defies neat and absolute answers. They have an appreciation of the necessity for continuing learning, for ongoing consultation and supervision, and for remaining humble.

Our intention has not been to overwhelm you but to stimulate you to develop habits of thinking and acting that will enhance your ability to base your practice on ethical and professional principles. Working in the helping professions is sometimes a risky as well as a rewarding venture. Although you may make mistakes from time to time, be willing to acknowledge those mistakes and learn from them. Make full use of supervision; you will not only learn from what may seem like mistakes but you will also minimize the chances of harming clients.

Do not be frozen with anxiety over needing to know everything at all times— or be afraid to intervene for fear of becoming embroiled in a lawsuit. Perhaps the best way to prevent a malpractice action is by having a sincere interest in doing what is going to benefit your client. Ask yourself these questions throughout your professional career: What am I doing, and why am I doing it? Would I be doing the same thing if my colleagues were observing me?

By Way of Review • One of the trends in the helping professions is an increased interest in ethical

and professional practice. This trend stems, at least in part, from a rise in malpractice actions against mental health practitioners.

• Ethical decision making is a continuing process. Issues that you look at as a student can be examined from another perspective as you gain experience in your professional specialty.

• It is essential that you be familiar with the professional codes of ethics. However, knowledge of ethical standards is not sufficient in solving ethical problems.

• Becoming an ethical practitioner involves an integration of both personal and professional ethics. Recognize that unethical acts are often subtle and unintended. Maintain a stance of honest self-exploration to ensure ethical behavior.

By Way of Review

• Ethical issues rarely have clear-cut answers. Ethical dilemmas, by their very nature, involve the application of professional judgment on your part.

• Routinely utilize a systematic ethical decision-making process such as the eight-step model provided in this chapter or another one that you personally devise. This type of system encourages objectivity, research, analysis, collaboration, and documentation—all of which are important elements in effective and ethical practices.

• Ultimately, you will have to make many difficult decisions as a practitioner. Responsible practice entails basing your actions on informed, sound, and responsible judgment. Be open to consulting with colleagues and supervisors throughout your professional career.

• Many clients have not even thought about their rights or responsibilities. As a helper, you can do much to safeguard your clients by developing informed consent procedures to help them make wise choices.

• Confidentiality is the cornerstone of the helping relationship. Although clients have a right to expect that what they talk about with you in the professional relationship will remain private, there are times when you will have to breach confidentiality. Clients have a right to know from the outset of the relationship the specific grounds for divulging confidences. It is essential that you know and follow the laws pertaining to confidentiality.

• Confidentiality is limited when you work with couples, families, groups, and minors. These limitations should be discussed in your informed consent process.

• At times you will have a professional and legal obligation to warn or to protect clients. It is essential that you know your duties in this area.

• Your job is to teach clients how to help themselves and thus decrease their need to continue seeing you. Encouraging dependency in your clients is unethical, and it does not lead to client empowerment.

• It is essential to keep adequate clinical records for all clients. Documentation is critical, both for the client’s benefit and for the protection of the professional rendering the services.

• If you rely on advanced technologies such as cloud computing for the storage and protection of client data, be aware of the ethical complexities involved.

• Be cognizant of the relevant legal and ethical issues if you communicate with clients via e-mail or online.

• Helpers who work in a managed care setting inform their clients about the services available and about potential limitations on the helping relationship due to the focus on cost-effective methods.

• Take an ethics course or, at the very least, read a book on professional ethics, and attend professional conferences and workshops dealing with ethics and the law.

• Understand what can lead to becoming involved in a malpractice suit, and learn practical ways to lessen the chances of this happening.

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262 Chapter 8 Ethical and Legal Issues Facing Helpers

What Will You Do Now? 1. Find at least one person in the helping professions to interview about ethical

issues in practice. Focus on the major ethical problem that this person has faced. How did this helper deal with this ethical concern? What are their concerns, if any, about malpractice suits?

2. Identify an ethical issue that you may encounter as a practitioner and create a resource list based on that topic. Include Internet resources, phone numbers for local agencies and hospitals, and books and articles on that topic. If this is part of a class assignment, each student should select a different ethical issue or topic. When you have completed the assignment, share your resource list with other students, and ask them to share their lists with you.

3. Think about a particular ethical dilemma that you have experienced in one of your field placements. How did you deal with the situation? If you could replay the situation, would you do anything differently?

4. Identify what you consider to be the most pressing ethical issue you expect to face, and write about your concerns and ideas in your journal. If you are involved in fieldwork, keep journal entries about any potential ethical dilemmas and bring your concerns to your supervision sessions or class meetings. Write down specific ways for you to increase your likelihood of becoming an ethical practitioner. What can you do now to move in this direction?

5. Structure a class debate around the arguments for and against suicide prevention. Consider debating a specific case of a client who is terminally ill with cancer and decides to end his life because of his suffering and because there is no hope of getting better. Divide the class into teams for an exchange on the therapist’s responsibility to prevent this suicide.

6. In small groups discuss specific circumstances in which you would break confidentiality, and see whether you can agree on some general guidelines. In your groups, explore ways you might teach clients about the purposes of confidentiality and the legal restrictions on it. Discuss how you would do this in various situations, such as school counseling, group work, couples and family counseling, and counseling with minors.

7. Identify some forms of technology that you might be inclined to use in your counseling practice (such as e-mail, texting, Facebook, and other forms of social media). In small groups, discuss specific ethical issues associated with each form of technology you might employ. What are some safeguards you can take to protect clients’ confidentiality and privacy?

8. For the full bibliographic entry for each of the sources listed here, consult the References at the back of the book. A useful guide to legal and ethical practice is Wheeler and Bertram (2019). A practical and positive approach to ethical practice is found in Knapp and VandeCreek (2012). For a casebook geared to the 2014 ACA Code of Ethics, see Herlihy and Corey (2015a). For practical desk references for interpreting and applying ACA ethics codes, see Barnett and Johnson (2015). For a useful discussion of duty to protect issues pertaining to harm to others, harm to self, and end-of-life decisions, see Werth, Welfel, and Benjamin (2009). For a book on ethics in counseling practice, see Remley and Herlihy (2020) and Corey, Corey, and Corey (2019).

By Way of Review

9. We recommend that you familiarize yourself with the basic standards for ethical practice of the various mental health professions. Refer to the list of websites provided in this chapter or see Chapter 1, which has contact information for various professional organizations.

Ethics in Action Video Exercises 10. In video role play 1, Counseling Adolescents: Teen Pregnancy, in Part One

(Ethical Decision Making) the client is a 13-year-old who just found out she is pregnant. She begs the counselor not to tell her parents. In this situation, what are the rights of the minor client? What rights do the parents have for access to certain information? What ethical and legal issues are involved in this case? What role would parental consent laws play in this case? What kind of informed consent process would you implement if you were counseling minors?

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