Chapter 8 – malpractice and resolving legal and ethical challenges
Malpractice
oMalpractice involves professional misconduct or unreasonable lack of skill and
has been defined as the failure to render professional services to the level
expected in a particular community by a prudent member of the profession with
the result that a recipient of services is harmed (Garner, 2014).
oMalpractice includes intentional wrongdoing, incompetency, or unintentional
wrongdoing of the professional involved.
oMalpractice is also a type of civil lawsuit that can be filed against professionals
for practicing in a manner that leads to injury to a recipient of their services.
oIn order for a client plaintiff to prevail in a malpractice lawsuit against a
counselor, the plaintiff must prove the following elements
The counselor had a duty to the client to use reasonable care in providing
counseling services.
The counselor failed to conform to the required duty of care.
The client was injured
There was a reasonably close causal connection between the conduct of
the counselor and the resulting injury (known as proximate cause).
The client suffered an actual loss or was damaged.
oActual cause means that a person actually caused the injury of another person.
Proximate cause has to do with whether the individual would not have been
injured had it not been for the action or inaction of the other person.
oForeseeability has to do with whether the professional knew or should have
known that the professional’s actions would result in a specific outcome.
oHogan (1979) concluded that few malpractice lawsuits are filed against
counselors because it is difficult for plaintiffs to establish an adequate case.
oThe Healthcare Providers Service Organization (HPSO, 2014) issued a report,
covering the 10-year period between 2003 and 2012, that summarized legal
actions taken against counselors for whom they provided professional liability
insurance. This report concluded that the most frequent professional liability
claims against counselors and the most complaints made to licensure boards
involved inappropriate sexual or romantic relationships with clients or the
partners or family members of clients. The second and third most common
licensure board complaints against counselors were breach of confidentiality and
scope of practice issues (practicing outside the area of a counselor’s expertise or
authority under licensure laws).
oThis report provided other interesting information about claims made against
counselors. Almost 67% of complaints were based on face-to-face counseling of
an individual client. Even though only about 8% of professional liability claims
involved minor clients, payouts from these claims were almost three times higher
than payouts related to claims involving adult clients. More than 41% of claims
against counselors were made by clients who had sought counseling related to
marriage or family discord. Almost 40% of the claims against counselors were
based on allegations of an inappropriate sexual or romantic relationship with
clients or the spouse, partner, or family member of clients. More than 10% of
claims against counselors were accusations that counselors had acted outside
their state-defined scope of practice.
oAn insurance company that provides professional liability to counselors, Insureon
(2014), has provided advice for avoiding malpractice claims:
Always maintain strong personal boundaries.
Educate yourself on standards of care for counselors set by your state
licensure board and make sure you always follow them.
Make sure your clients have realistic expectations for the services you are
providing them and get an agreement in writing.
Keep notes and records that are thorough and accurate.
Terminate services to clients who attempt to initiate any inappropriate
relationship with you, and facilitate their transfer to another counselor.
Refer clients to specialists when they have issues outside your areas of
expertise.
oHowever, it is likely that the next leading cause of malpractice lawsuits against
counselors revolves around situations in which clients attempt or complete
suicide
Suicidal clients
oThe ethical standard that applies to clients who pose a danger to others applies
to suicidal clients as well, in that confidentiality requirements are waived when
disclosure is necessary to protect clients or others from serious and foreseeable
harm (American Counseling Association [ACA], 2014, Code of Ethics, §B.2.a.).
oSuicide prevention measures begin with a thorough risk assessment and then,
depending on the level of danger, might include involving the client’s family or
significant others, working with the client to arrange for voluntary
hospitalization, or even initiating the process that leads to an involuntary
commitment of the client.
oEthically (ACA, 2014, §B.2.e.), and legally under the Health Insurance Portability
and Accounting Act (HIPAA), it is important to disclose only information you
consider essential in order for someone else to help prevent a suicide attempt.
oSimilar to situations in which clients threaten harm to others, the counselor’s first
responsibility is to determine that a particular client is in danger of attempting
suicide.
oA legal case from the 1960s (Bogust v. Iverson, 1960) held that a college
counselor was not a mental health professional and therefore had no duty to
assess a client’s risk of suicide.
oRoss and Heath (2002) defined nonsuicidal self-injury as behaviors that involve
intentional bodily harm that cause tissue damage without an individual having
the intent to die, and the International Society for the Study of Self-Injury (2018)
added to that definition “and for purposes that are not socially sanctioned”
(Zetterqvist, 2015).
oSelf-injury includes such activities as cutting, burning, self-bruising, breaking
bones (The International Society of the Study of Self-Injury, 2018), carving of the
skin, subdermal tissue scratching, banging or punching objects or oneself,
embedding objects under the skin (Self-Injury and Recovery Research and
Resources, 2018), and excoriation (also known as skin picking) (Jagger & Sterner,
2016).
oThe prevailing belief among mental health professionals is that self-injury is not
automatically a predictor of suicide attempts (Walsh, 2006), although certainly
some people who self-injure might also be suicidal, and the risk of suicide is
heightened among clients who self-injure
oIt seems that self-injury and suicidal ideation are two separate behaviors and
therefore should be assessed separately (Wester & McKibben, 2016).
oIf Monica determines that Ashley is involved only in surface cutting and has not
put herself in danger, but is only concerned about perhaps doing that in the
future, Monica could determine that Ashley is not currently a danger to herself
and could continue her counseling sessions with Ashley.
oAfter reviewing the literature, Whisenhunt et al. (2014) concluded that common
risk factors for both suicide and self-injury include substance misuse, low self-
esteem, suicidal ideation, disordered eating, and non-heterosexual identity.
oBut self-injury risk factors include factors that are not predictive of suicide,
including history of abuse or current abuse, eating disorders, early first sexual
encounter, and low socio-economic status (Whisenhunt et al., 2014).
oAnd suicide risk factors that do not predict self-injury include broken homes,
mental illness in self or family members, female gender, risky weight control
behaviors, early-onset puberty, recent suicide attempts by a friend, and
behavioral problems (Whisenhunt et al., 2014).
oBuser, Buser, and Rutt (2017) concluded that individuals who self-injure and have
addictive qualities (which include tolerance, time-consuming nature of self-injury,
and continuation despite negative consequences) are more at risk for
unintentional severe harm than those who self-injure who do not have addictive
qualities.
oThe association between self-injury and suicidal ideation remains unclear. As a
result, counselors who treat those who self-injure should always assess for
suicidal ideation (Wester et al., 2016).
oBecause of this standard of care to which counselors are held, the very best
action you can take if you are unsure whether a client is at risk for a suicide
attempt is to consult with other mental health professionals who are similar to
you (Sommers-Flanagan, Sommers-Flanagan, & Lynch, 2001).
oIn situations in which you have assessed a client’s potential risk for suicide, it is
essential that you document carefully, regardless of whether you determine that
the client is or is not currently at risk. Essential items to include in your
documentation notes include the following:
What precipitated your concern about the client (such as referral by
another person, or something the client said or did)
Questions you asked the client and his or her responses
Individuals you consulted regarding the situation, what you said to them,
and how they responded
Interactions you had with any other persons regarding the situation, from
the time you became concerned until you completed your work for the
time being regarding the situation.
oSteps to follow if you determine that your client may be at risk for suicide in
Figure 8-1
oPaulson and Worth (2002) found that previously suicidal clients described these
key therapeutic processes that helped them to overcome suicidal ideation and
behaviors: (a) experiencing an affirming and validating relationship as a means of
reconnection with others, (b) dealing with the intense emotions surrounding
suicidal behavior, and (c) confronting and discarding negative patterns while
establishing new, more positive behaviors.
oWiner (2018) indicated that the following situations in suicide malpractice cases
make it more difficult to win cases against mental health professionals:
When the client who committed suicide had suffered from chronic
depression and had resisted treatment. Cases in which the client had a
relatively sudden onset of depression, sought treatment, and then
committed suicide are easier to win.
When the client had not expressed an actual suicidal plan to the mental
health professional. It is easier to win when the patient had told the
mental health professional of an actual detailed plan of how the suicide
was going to be carried out.
When the client who has been on steady doses of anti depressant
medications or is not being medicated commits suicide. It is well known
that once a severe depression begins to lift due to the energy provided
with a new medication, suicidal clients are at a greater risk than when
they are severely depressed.
When a client who commits suicide has not attempted suicide in the past.
Clients who have attempted suicide in the past are at a greater risk of
attempting suicide again and must be watched far more carefully during a
new suicidal episode.
oClients who have chronic depression are less like to commit suicide than those
who have new experiences of depression; suicidal individuals who have a specific
plan are more at risk; depressed individuals are sometimes energized by new
medications and that energy may lead them to commit suicide; and individuals
who have attempted to commit suicide in the past are much more at risk of
attempting suicide again than those who have not attempted suicide in the past.
Clients who may be at risk for harming others
oIf you do determine that a client is a danger to another person, then you must
take the steps necessary to prevent harm (Gilbert, 2007; Hermann & Finn, 2002).
Steps may include warning intended victims, whether or not their identity is
known.
oStandard B.2.a. of the Code of Ethics (ACA, 2014) states that the counselor’s
confidentiality requirement “does not apply when disclosure is required to
protect clients or identified others from serious and foreseeable harm.”
oResearch indicates that it is impossible to predict whether a particular person is
going to harm someone else; yet the law and our ethical standards require
counselors to determine whether a client is dangerous. How can this legal and
ethical duty be fulfilled? First, it is important to learn as much as you can about
the warning signs of persons who commit violent acts against others
oOnce you have determined that a client may indeed be dangerous and might
harm another person, the law requires that you take whatever steps are
necessary to prevent the harm and, further, that the steps you take be the least
disruptive (Rice, 1993).
oYou have choices that range from the least intrusive action (obtaining a promise
from your client not to harm anyone else) to the most intrusive (having the client
involuntarily committed to a psychiatric facility).
oDuty to warn intended victims
You could be accused of misdiagnosis, defamation of character, or
violating confidentiality (Hopewell v. Adebimpe, 1982).
The duty to warn an identifiable or foreseeable victim of a dangerous
client arose out of the landmark Tarasoff v. Regents of University of
California (1976) court case, which established the following legal concept
in California:
when a psychotherapist determines, or pursuant to the standards
of his profession should determine, that a patient presents a
serious danger or violence to others, the therapist incurs an
obligation to use reasonable care to protect the foreseeable victim
from such danger. (McClarren, 1987, p. 273)
In Lipari v. Sears, Roebuck & Co. (1987), a federal court held that a
psychotherapist has a duty to warn and protect unknown victims, as well
as those who are readily identifiable.
In the Peck case, the court found that a counselor could be held
responsible for property damage when a client burned down a barn.
Originally, the Tarasoff holding imposed a duty to warn only if the victim
was specifically identifiable. Subsequent decisions have extended that
duty to include warning persons who are unknown, persons who are
unintentionally injured by a patient, whole classes of persons of which
the victim is a member, bystanders who might be injured by a patient’s
negligent act, and individuals whose property a client has threatened to
destroy (McClarren, 1987).
One thing is clear, however: Because of the Tarasoff case, when you
determine that a client might harm an identifiable or foreseeable person,
you must directly or indirectly warn that individual of the danger, except
in Texas.
Clients with HIV
oAccording to §B.2.b., Contagious, Life-Threatening Diseases, of the Code of Ethics
(ACA, 2014), “When clients disclose they have a disease commonly known to be
both communicable and life threatening, counselors may be justified in disclosing
information to identifiable third parties, if the parties are known to be at serious
and foreseeable risk of contracting the disease.”
oThis standard goes on to say that before making a disclosure of this type,
counselors “assess the intent of clients to inform the third parties about their
disease or to engage in any behaviors that may be harmful to an identifiable third
party.” In addition, “Counselors adhere to relevant state laws concerning
disclosure about disease status.”
oThese writers also argue that, although it is an injustice that clients with HIV
suffer from discrimination, the protection of others must take precedence over
the possibility of discrimination.
oTo be in compliance with the ethical standards, it is imperative that you do not
act hastily to breach confidentiality. First, your client must disclose that he or she
is infected with HIV, as is required by the Code of Ethics (ACA, 2014, §B.2.b.).
oIt is preferable that clients make their own disclosures, so you might continue to
work with the client in exploring the client’s willingness to assume this
responsibility, or you might involve the partner in the counseling process.
A hypothetical malpractice case
oCounselors have a fiduciary relationship with clients, which is a relationship that
fosters the highest level of trust and confidence (Anderson & Bertram, 2012).
oAfter establishing that a duty of care was owed to Mark, Sheila’s attorney then
would have to prove that Monica breached that duty and failed to conform to
the required standard of care.
oIf a person is damaged with a financial loss, such as a loss in the stock market or
investing in a deal that has no value, then it is easy to determine how much
money the person needs to be made whole again.
oActual malpractice cases
The student had seen the counselor in a professional capacity (Bogust v.
Iverson, 1960). The holding in that case was that the college counselor
was not a therapist and therefore had no duty to detect or prevent a
suicide of a client.
In Eisel v. Board of Education of Montgomery County (1991), Dorothy
Jones and Deidre Morgan, school counselors at Sligo Middle School in
Maryland (along with their school board, principal, and superintendent),
were sued in a wrongful death action by Stephen Eisel, the father of
Nicole Eisel.
In coming to this decision, the Maryland Court of Appeals held that
“school counselors have a duty to use reasonable means to attempt to
prevent a suicide when they are on notice of a child or adolescent
student’s suicidal intent” (Eisel v. Board of Education of Montgomery
County, 1991, p. 456. Court of Appeals of Maryland).
The appeals court did not decide that the two school counselors were
responsible for Nicole Eisel’s suicide, but it did decide that a judge or jury
could determine that the facts were such that the counselors could be
held responsible.
Resolving legal and ethical challenges
oPersonal legal decision making
You can then follow the legal advice you have been given without
worrying about whether it is correct.
You can sue your lawyers if you are harmed as a result of relying on their
incorrect advice.
It is important to avoid getting emotionally involved in your client’s
lawsuits or in legal proceedings that affect others.
oPersonal ethical decision making
Often, counselors’ ethical problems are existential dilemmas.
In a parallel fashion, sometimes a counselor with an ethical question will
have a clinical supervisor to whom the responsibility for decisions can be
passed.
oResponding to accusations of unethical or illegal behavior
Of the remaining 41 boards, 34 (83%) responded. Four of the 34 were not
empowered to receive or process ethical complaints against licensees.
The 30 remaining boards had received a total of 2,325 complaints in the
previous 5 years. Of the 2,325, a total of 1,307 were identified by type of
complaint.
Of the categorized complaints received by these boards, 24% were for
inappropriate dual relationships, 17% were for incompetence, 8% were
for practicing without a license or misrepresentation of qualifications, 7%
were for having a sexual relationship with a client, 5% were for breach of
confidentiality, 4% were for inappropriate fee assessments, 1% were for
failure to obtain informed consent, and 1% were for failure to report
abuse.
If you fail to notify your insurance company, you could jeopardize
whether the policy will provide legal representation for you or pay off
possible judgments.
A counselor who is dealing with an angry client should respond directly to
the person making the threat, if that is possible. If you can calm the
person down and listen to the concerns, you might be able to resolve the
problem immediately or through additional conversations.
Once a formal complaint or lawsuit has been filed, it is unwise to contact
a client and try to talk him or her into withdrawing the complaint
(O’Mahony, 2011).
oInformal complaints
A fellow counselor might directly observe you doing or saying something
that raises cause for concern, or the concern might have come to your
colleague’s attention through the report of a client, fellow mental health
professional, supervisee, or student. It is important to take the concern
seriously, make yourself available to meet and discuss the concern, listen
and respond genuinely and nondefensively, and take responsibility for
your error if you have made one (Williams, 2001). If the concern can be
resolved informally in this way, it is to everyone’s advantage.
Formal complaints
oSometimes clients or other citizens file formal complaints against counselors with
licensure boards, certification boards, professional associations, or other entities.
oCounselors are advised to make sure the professional liability insurance policy
they purchase includes legal representation in the event a formal complaint is
filed against them with their licensure board (Zur, 2011b).
oThe general process that boards and committees use in processing complaints is
summarized in the following (Chauvin & Remley, 1996):
Generally, investigations and the processing of complaints are
confidential.
First, a board will determine whether it has jurisdiction over the
counselor against whom the complaint is being made. If the board does
not have jurisdiction, it notifies the person making the complaint that it
does not have jurisdiction, and the case is closed. If the individual is
licensed or certified by the board (or is an applicant for a license or
certification), then the board generally has jurisdiction.
Once jurisdiction has been established, the board determines whether
the counselor may have violated the board’s code of ethics, if the
allegations against the counselor are true. If the action (or inaction) of the
counselor would not have constituted a violation, the case is closed.
When the allegation, if true, might be a violation of the board’s code of
ethics, the board then begins an investigation of the complaint.
Investigations might range from actions that are as expensive and
complicated as sending investigators to talk to witnesses or the accused
counselor, to actions as simple as asking written questions of the accuser
or the accused.
Often, if a violation is found, informal negotiations between the board
and accused counselor occur. A settlement of the matter may be reached
on a voluntary basis that satisfies both parties.
If a settlement is not offered by the board or is refused by the counselor,
a hearing is generally held. Members of the board (or their designees) sit
as a jury. A representative of the board prosecutes the case, and the
accused counselor, or the counselor’s representative, defends. Usually
witnesses are called to testify, including the accuser. Accused counselors
usually are allowed to be represented by legal counsel at these hearings.
After the hearing, the board determines whether the counselor violated
the code of ethics. If violations are found, the board may impose
sanctions. Sanctions vary but could include a written reprimand only;
probation; suspension; or revocation of a license, certification, or
association membership.
If the counselor who has been found in violation of the code of ethics is
not satisfied with the result, the counselor can appeal. Usually, there are
internal appeals in which the board reviews the case again. Once the
internal appeals are exhausted, in most states the counselor can sue the
board in a court of law if the counselor believes the treatment was unfair.
oIf you receive official notice that a malpractice lawsuit has been filed against you,
you must notify your employer and your professional liability insurance carrier
immediately.
oAn emotional response to being accused of wrongdoing is natural. It may help to
keep in mind that many formal complaints and lawsuits filed against mental
health professionals are either dismissed or result in a finding in favor of the
professional (Anderson & Swanson, 1994).
oIt may also be helpful to know that severe sanctions against counselors are rarely
imposed by the ACA Ethics Committee; for example, only two members were
expelled from the association between 1996 and 2000 (Williams, 2001).
oSteps to take if you are accused of unethical behavior or are sued in Figure 8-2
When you suspect a colleague is acting unethically or illegally
oUnethical behavior
The role of policeperson can be very uncomfortable and runs contrary to
who we are as counselors and to our commitment to accepting and
helping others rather than judging and punishing them. Nonetheless, we
must recognize that unless we police our own profession, the courts will
step in and do it for us.
The offending colleague may be unwilling to discuss your concern,
circumstances may exist that preclude you from confronting your
colleague, or you may not be able to raise your concern without violating
the confidentiality of an involved party.
If the privacy of an involved party is at risk, you should consult with
colleagues who are uninvolved and who will not be able to ascertain the
identity of the subject of the consultation.
Figure 8-3 recommended necessary conditions for reporting a colleague
for unethical behavior
If you believe you must file a complaint, you should write a letter to the
Ethics Committee outlining the nature of the complaint, sign it, and send
it in an envelope marked Confidential.
Complaints may be filed at the same time with all of the following
entities:
All state licensure boards that have licensed the counselor
All national certification boards that have certified the counselor
Ethics committees that accept complaints of all professional
counseling associations in which the counselor holds active
membership
The counselor’s employer
Unwarranted complaints
oInappropriate discrimination against those who have been accused
In addition, the standard makes an effort to guard against counselors
being discriminated against because they have filed complaints against
other counselors.
Despite this standard, if a complaint against a counselor is pending,
employers certainly may conduct their own investigations into alleged
wrongdoing and conclude that a counselor has been unethical, even if an
ACA complaint still has not been resolved.
oIllegal behaviors of others
Individuals in U.S. society who know of illegal acts by others are not
violating any laws if they choose not to report such activities. In the same
manner, counselors who know of illegal acts of other counselors generally
do not have to report those illegal acts.
A citizen in the United States cannot be charged with a crime for refusing
or failing to report the criminal act of another person.
Counselors might become aware of the following illegal activities by other
counselors:
Lying to health care companies so that clients will get
reimbursement for the counselors’ services
Purposefully not reporting income to the Internal Revenue Service
Engaging in a sexual relationship with a minor
Smoking in a building in which smoking is prohibited
Speeding while driving a car
Some activities might fall into a gray area, and you would not even think
of reporting others.
Although counselors do not have an affirmative duty to report illegal
activities of others, if they are questioned by police investigators or
subpoenaed, they have to answer questions regarding the matter
truthfully.
oCases are often complex
oGuidelines for avoiding problems
Guidelines that have been suggested by Chauvin and Remley (1996) for
avoiding problem situations follow:
Restrict your practice of counseling to your areas of competence
(Daniluk & Haverkamp, 1993; Gilbert, 1992).
Do not sue clients for unpaid fees (Woody, 1988a). Those who are
sued by you may, in turn, complain about your competency. If you
avoid allowing clients to run up bills with you, collecting fees from
them will never become an issue.
Utilize a thorough and complete client disclosure statement in
your practice (Beamish, Navin, & Davidson, 1994; Epperson &
Lewis, 1987; Hendrick, 1988; Wheeler & Bertram, 2012).
Never guarantee or imply a guarantee of outcomes (Woody,
1988a).
Establish and maintain firm professional boundaries between you
and your clients.
Always use supervision for your practice, even if it is peer
supervision (Remley, Benshoff, & Mowbray, 1987).
We suggest and briefly discuss a few additional guidelines:
Stay connected with your fellow mental health professionals.
Attend meetings of professional organizations and continuing
education workshops. Join a peer consultation group that meets
regularly. Isolation can create blind spots (Mascari & Webber,
2006), and counselors who are isolated from their colleagues are
more prone to burnout and to inappropriately trying to meet their
own needs through their relationships with clients.
Monitor your self-disclosures made in counseling relationships.
Check to make sure that you are self-disclosing for the benefit of
your clients rather than to have your own needs met. This is one
important way to avoid a subtle slide into blurred boundaries and
inappropriate dual relationships.
Document carefully any circumstances and actions taken in
difficult or dangerous client situations (such as abuse or threats to
harm self or others; Wheeler & Bertram, 2015).
Keep current with developments in law and ethics. Ethical
standards for the profession are not static, and in every state, laws
and rules related to the practice of counseling are constantly
changing (Hegarty, 2012). It is vital that you keep abreast of
changes in requirements for practice and advances in knowledge
in the field.
To reiterate advice we offer many times throughout this text,
when in doubt, consult (Melonas, 2011). As we note, decisions
made in isolation are rarely as sound as those made in
consultation with others. Choose your consultants wisely—fellow
mental health professionals for ethical questions, and attorneys
for legal questions—and follow their advice.
Continually monitor your own effectiveness as a counselor. You
have an ethical duty to do this (ACA, 2014, §C.2.e.) as well as a
moral responsibility. Recall the discussion of virtue ethics
presented in Chapter 1. Virtuous counselors have such an abiding
commitment to the ethical values of the profession that they hold
themselves accountable even when others do not (Meara,
Schmidt, & Day, 1996).
Taylor (1995) has suggested that the following are keys to professional
behavior: (a) authentic caring, (b) willingness to examine our own
motivations, (c) willingness to tell the truth to ourselves, our peers, and
our clients, and (d) willingness to ask for help and to learn.
