Module 3
Client Rights and Counselor Responsibilities
a. Introduction
To practice in an ethical and legal manner, the rights of clients are paramount. In
this we deal with ways of educating clients about their rights and responsibilities as
partners in the therapeutic process. Special attention is given to the role of informed
consent and to the ethical and legal issues that arise when therapists fail to provide
sufficient informed consent. We also deal with some of the ethical and legal issues
involved in counseling children and adolescents and in counseling involuntary clients.
Part of ethical practice is talking with clients about their rights. Clients are not
always aware of their rights, and they may find the therapeutic process mysterious.
Vulnerable and sometimes desperate for help, clients may unquestioningly accept
whatever their therapist says or does. Clients may see their therapist much like they see
their physician and expect the therapist to have an accurate diagnosis and an immediate
solution to their problem. For most people the therapeutic situation is a new one, and they
may not realize that the therapist’s duty is to help clients find their own solutions. The
therapeutic process involves a collaborative endeavor in which a therapist and a client
form a partnership to attain goals the client has chosen. For these reasons, the therapist is
held responsible for protecting clients’ rights and teaching clients about these rights. The
ethics codes of most professional organizations require that clients be given adequate
information to make informed choices about entering and continuing the client–therapist
relationship (see the Ethics Codes box titled “The Rights of Clients and Informed
Consent” for examples from several ethics codes).
Alerting clients to their rights and responsibilities is not only a legal and ethical
obligation but also a fundamental aspect of promoting autonomy, empowerment, and
informed decision-making in therapeutic relationships. By educating clients about their
rights and responsibilities, practitioners empower them to actively participate in the
therapeutic process, make informed choices about their care, and advocate for their own
needs and preferences.
One of the primary rights that clients have is the right to informed consent. This
includes the right to receive clear and comprehensive information about the nature and
purpose of therapy, the therapist's qualifications and credentials, the potential risks and
benefits of treatment, and any alternatives or options available. By providing clients with
this information, therapists enable them to make voluntary and informed decisions about
whether to consent to treatment and to what extent.
Furthermore, alerting clients to their rights and responsibilities fosters a sense of
agency and ownership over the therapeutic process. By acknowledging clients as active
participants in their own care, therapists validate their experiences, perspectives, and
goals, and affirm their capacity for self-determination and self-advocacy. This
collaborative approach to therapy promotes a sense of empowerment and self-efficacy,
enhancing clients' confidence and motivation to engage in the therapeutic process and
work towards their goals.
Moreover, informing clients of their rights and responsibilities serves as a
protective measure for therapists themselves. By ensuring that clients are aware of their
rights, therapists mitigate the risk of misunderstandings, miscommunications, or disputes
that may arise during the course of therapy. Clear communication about boundaries,
confidentiality, fees, and other pertinent matters helps establish trust and transparency in
the therapeutic relationship, reducing the likelihood of ethics complaints or legal
disputes.
In addition to alerting clients to their rights, therapists also have a responsibility to
inform clients of their responsibilities within the therapeutic relationship. This may
include expectations regarding attendance, participation, honesty, and respect for
confidentiality and boundaries. By clarifying these expectations upfront, therapists set
clear guidelines for behavior and foster a sense of accountability and mutual respect in
the therapeutic relationship.
Furthermore, therapists can enhance their communication of clients' rights and
responsibilities by providing written materials, such as informed consent forms, client
handbooks, or informational brochures. These materials can serve as valuable resources
for clients to reference throughout the course of therapy, reinforcing their understanding
of their rights and responsibilities and facilitating ongoing communication and
collaboration between therapist and client.
In conclusion, alerting clients to their rights and responsibilities is essential for
promoting autonomy, empowerment, and informed decision-making in therapeutic
relationships. By acknowledging clients as active partners in their own care and
providing clear and comprehensive information about their rights and responsibilities,
therapists empower clients to advocate for their needs, participate actively in the
therapeutic process, and work towards their goals. This proactive approach not only
enhances the therapeutic relationship but also serves as a protective measure for
therapists, reducing the risk of ethics complaints and fostering trust, transparency, and
mutual respect.
In addition to the ethical aspects of safeguarding clients’ rights, legal parameters
also govern professional practice. When we attend continuing education workshops on
ethics in clinical practice, the focus is often on legal matters and risk management.
Practitioners express their fears of lawsuits and are eager to learn risk management
strategies that will protect them from malpractice. These concerns are realistic but need to
be kept in perspective. Our emphasis should be on both nonmaleficence (avoiding doing
harm) and beneficence (doing what is best for the client). Pope (2015) relates this idea
specifically to record keeping. He asserts that practicing defensive record keeping—that
is, making risk management one’s primary focus in record keeping and in other areas of
practice—may lead clinicians to lose sight of their ethical and clinical responsibilities.
Acting in the best interest of the client is not only a fundamental ethical principle
but also a key strategy for minimizing the risk of ethical or legal violations in
professional practice. By prioritizing the welfare and well-being of clients and
demonstrating this commitment through a rigorous process of consultation and
documentation, professionals can mitigate potential risks and safeguard against
allegations of misconduct.
One of the primary ways professionals can ensure they are acting in the best
interest of the client is by engaging in thorough and comprehensive consultation. This
involves actively listening to the client's needs, preferences, and concerns, conducting a
comprehensive assessment of their situation, and collaborating with them to develop a
personalized treatment plan or course of action. By involving clients in the decision-
making process and respecting their autonomy and self-determination, professionals can
enhance the likelihood that their interventions will be effective and beneficial.
Moreover, consultation extends beyond just the client-professional relationship to
include collaboration with other stakeholders, such as colleagues, supervisors,
interdisciplinary teams, and relevant third parties. Consulting with colleagues and seeking
input from other professionals can provide valuable insights, alternative perspectives, and
additional expertise that can inform ethical decision-making and enhance the quality of
care provided to clients. Furthermore, consulting with supervisors or seeking supervision
can offer a structured forum for discussing complex cases, seeking guidance on ethical
dilemmas, and ensuring accountability and oversight in professional practice.
Documentation also plays a critical role in demonstrating a commitment to acting
in the best interest of the client and mitigating potential risks. Thorough and accurate
documentation provides a record of the decision-making process, rationale for
interventions, and steps taken to address client needs and concerns. This documentation
serves as a valuable resource for monitoring client progress, tracking changes in their
condition or circumstances, and evaluating the effectiveness of interventions over time.
Additionally, in the event of an ethical or legal challenge, well-documented records can
serve as evidence of the professional's adherence to ethical standards and best practices.
Furthermore, professionals can minimize the risk of ethical or legal violations by
staying informed about relevant laws, regulations, and professional standards governing
their practice area. By remaining up-to-date on changes in the legal and regulatory
landscape, professionals can ensure they are operating within the boundaries of the law
and are aware of their ethical obligations to clients.
In conclusion, by prioritizing the best interest of the client and demonstrating this
commitment through consultation and documentation, professionals can mitigate the risk
of ethical or legal violations in their practice. By actively engaging clients in the
decision-making process, consulting with colleagues and other stakeholders, and
maintaining thorough and accurate records, professionals can uphold the highest
standards of ethical conduct and promote the well-being of those they serve. This
proactive approach to ethical practice not only safeguards against potential risks but also
enhances the trust, confidence, and credibility of professionals in their respective fields.
Counseling can be a risky venture, and you must be familiar with the laws that
govern professional practice. However, we hope you will avoid becoming so involved in
legalities that you lose sight of the ethical and clinical implications of what you do with
your clients. You will surely want to protect yourself legally, but not to the point that you
immobilize yourself and inhibit your professional effectiveness.
b. The Client’s Right to Give Informed Consent
The first step in protecting the rights of clients is the informed consent document.
Informed consent involves the right of clients to be informed about their therapy and to
make autonomous decisions pertaining to it. Informed consent is a shared decision-
making process in which a practitioner provides adequate information so that a potential
client can make an informed decision about participating in the professional relationship
(Barnett, Wise, Johnson-Greene, & Bucky, 2007). Informed consent is both an ethical
and a legal obligation of the clinician, and providing information to clients is also a good
quality enhancement strategy. Attending to informed consent not only meets legal and
ethical standards but represents excellent clinical care as well (Knapp et al., 2015).
Informed consent for treatment is a powerful clinical, legal, and ethical tool (Wheeler &
Bertram, 2015).
Mental health professionals are required by their ethics codes to disclose to clients
the risks, benefits, and alternatives to proposed treatment. The intent of an informed
consent document is to define boundaries and clarify the nature of the basic counseling
relationship between the counselor and the client. One benefit of informed consent is that
it increases the chances that clients will become actively involved, educated, and willing
participants in the assessment process and in their therapy. When clients understand what
is expected of them to get positive results from therapy, the therapeutic alliance is
enhanced. It may not be possible or clinically appropriate to discuss informed consent in
great detail at the first session due to the emotional state of a client. Dealing with a
client’s crisis takes precedence over a discussion of informed consent, but informed
consent must be addressed as soon as it is clinically appropriate. It is crucial that topics
such as the limits of confidentiality be explained at the first session, even in crisis cases.
If this is not done and the client discloses a matter that must be reported, the therapist
may face both legal and ethical problems.
Most professionals agree that it is crucial to provide clients with information
about the therapeutic relationship, but the manner in which this is done in practice varies
considerably among therapists. It is a mistake to overwhelm clients with too much
detailed information at once, but it is also a mistake to withhold important information
that clients need if they are to make wise choices about their therapy. The counselor must
strike a balance between providing necessary information to the client and attending to
the emotional state of the client.
Professionals have a responsibility to their clients to make reasonable disclosure
of all significant facts, the nature of the procedure, and some of the more possible
consequences and difficulties. Clients have the right to have treatment explained to them.
The process of therapy is not so mysterious that it cannot be explained in a way that
clients can comprehend how it works. For instance, most residential addictions treatment
programs require that patients accept the existence of a power higher than themselves.
This “higher power” is defined by the patient, not by the treatment program. Before
individuals agree to entering treatment, they have a right to know this requirement. It is
important that clients give their consent with understanding. Professionals need to avoid
subtly coercing clients to cooperate with a therapy program to which they are not freely
consenting. It is the responsibility of professionals to assess the client’s level of
understanding and to promote the client’s free choice. In doing so therapists can model a
social justice perspective for clients, many of whom may experience oppression and
discrimination. If informed consent procedures are implemented properly, open
exchanges between therapists and clients are promoted that may result in empowered
collaboration, or shared decision making (Knapp & VandeCreek, 2012). Clients are
empowered when they are educated about their rights and responsibilities in the
therapeutic process.
Generally, informed consent requires that the client understands the information
presented, gives consent voluntarily, and is competent to give consent to treatment
(Wheeler & Bertram, 2015). Therapists must give clients information in a clear way and
check to see that they understand it. Disclosures should be given in simple language in a
culturally sensitive manner and must be understandable to clients. To give valid consent,
it is necessary for clients to have adequate information about both the therapy procedures
and the possible consequences.
A basic part of the informed consent process involves giving clients an
opportunity to raise questions and to explore their expectations of counseling. We
recommend viewing clients as partners with their therapists in the sense that they are
involved as fully as possible in each aspect of therapy. Practitioners cannot presume that
clients clearly understand what they are told initially about the therapeutic process.
Furthermore, informed consent is not easily completed in the initial session by asking
clients to sign forms. The Canadian Code of Ethics for Psychologists (CPA, 2015) states
that informed consent involves a process of reaching an agreement to work
collaboratively rather than simply having a consent form signed.
Practitioners are ethically bound to offer the best quality of service available, and
clients have a right to know that managed care programs, with their focus on cost
containment, may influence the quality of care available. Clinicians are expected to
provide prospective clients with clear information about the benefits to which they are
entitled and the limits of treatment. Informed consent forms should state that the managed
care company may request a client’s diagnosis, results of any tests given, a wide range of
clinical information, treatment plans, and perhaps even the entire clinical record of a
client.
Clinicians who work in a managed care system are ethically bound to inform
clients about policies that could affect them before they enter into a therapeutic
relationship. Braun and Cox (2005) recommend that clinicians inform clients about the
limits of confidentiality and the potential repercussions of disclosing personal
information to insurance providers. Clients need to understand that some services may
not be covered under their insurance plans and “that the insurance plan and utilization
review direct the type and length of treatment received, and that payment for treatment
might be terminated before the client and/or the counselor believe(s) the goals of therapy
have been achieved” (p. 430). Counselors under any managed care contracts should be
aware of their obligations and offer acceptable alternatives to clients during the informed
consent process (Nancy Wheeler, personal communication, June 28, 2016). Counselors
should include a statement about the client’s ultimate responsibility for payment in case
the insurance does not cover the services provided.
How do practitioners assist clients in becoming informed partners? Pomerantz and
Handelsman (2004) state that clients have a right to know what the therapy process
entails because they are buying a service from a professional. Some of the topics they
have developed include a series of questions pertaining to what therapy is and how it
works, the clinician’s approach, alternatives, appointments, confidentiality, fees,
procedures for filing for insurance reimbursement, and policies pertaining to managed
care. Pomerantz and Handelsman believe that an open discussion of a wide range of
questions about the therapy process enhances the therapeutic alliance and lays the
groundwork for a relationship based on empowerment through information. Best practice
involves providing information about the therapeutic process to clients both verbally and
in writing. A written consent form can augment verbal informed consent discussions.
In many agencies and counseling practices, the process of informed consent
involves more than just having clients sign a form; it's about engaging in a meaningful
dialogue and ensuring that clients fully understand the nature of therapy, their rights, and
what to expect from the therapeutic process. Documenting this process is not only a good
practice but also a necessary step in demonstrating adherence to ethical and legal
standards.
When clients come to therapy, they are often in vulnerable states, seeking support
and guidance for personal struggles and challenges. Informed consent serves as a
foundation for building a trusting and collaborative therapeutic relationship. It involves
providing clients with clear and comprehensive information about the therapeutic
process, including the goals, methods, risks, benefits, and limitations of therapy, as well
as the therapist's credentials, fees, and policies.
The informed consent form itself is a tool for conveying this information in a
structured format, but its true value lies in the dialogue and discussion that accompany it.
Clinicians have a responsibility to review the form with clients in detail, ensuring that
they understand its contents and have an opportunity to ask questions or seek
clarification. This process of discussion not only ensures that clients are fully informed
but also facilitates their active participation in the decision-making process.
Moreover, documenting that this discussion took place and that clients had the
opportunity to ask questions or raise concerns is essential for demonstrating adherence to
ethical and legal standards. By documenting that clients were provided with information
about the therapeutic process, that their questions were addressed, and that they provided
consent to participate in therapy, clinicians create a record of their commitment to
transparency, accountability, and client-centered care.
In addition to documenting the informed consent process at the outset of therapy,
clinicians may also revisit and review the informed consent form periodically throughout
the course of treatment. This allows for ongoing communication and collaboration
between therapist and client, ensuring that clients remain informed and engaged in their
therapeutic journey.
Furthermore, documenting the informed consent process can serve as a valuable
resource for both therapists and clients in the event of misunderstandings, disagreements,
or disputes. By having a clear record of the information provided to clients and their
consent to participate in therapy, clinicians can mitigate the risk of ethics complaints or
legal challenges and demonstrate that they acted in accordance with professional
standards and guidelines.
In conclusion, while having clients read and sign an informed consent form is an
important aspect of the therapeutic process, it is equally important for clinicians to
document that they reviewed the form with clients, answered their questions, and ensured
their understanding. This documentation not only demonstrates adherence to ethical and
legal standards but also fosters transparency, accountability, and client empowerment in
therapy..
In general, client misunderstanding is reduced through the effective use of
informed consent procedures. An adequate informed consent process also tends to reduce
the chances a client will file a liability claim. Both the practitioner and the client benefit
from this practice. We have emphasized the importance of the therapist’s role in teaching
clients about informed consent and encouraging clients’ questions about the therapeutic
process.
Ultimately, in navigating this complex ethical dilemma, your primary goal as a
counselor is to prioritize Jane's safety and well-being while also upholding ethical
principles of autonomy, beneficence, and nonmaleficence. By taking proactive steps to
assess risk, establish a safety plan, and involve appropriate collaborators, you can help
support Jane through this difficult time and ensure that she receives the care and support
she needs to stay safe.
c. The Content of Informed Consent
One of the main aims of the first meeting is to establish rapport and create a
climate of safety in the therapeutic situation. Realizing that informed consent is an
ongoing process, the challenge is to provide clients with the right amount of information
at this session for them to make informed choices. The types and amounts of information,
the specific content of informed consent, the style of presenting information, and the
timing of introducing this information must be considered within the context of state
licensure requirements, work setting, agency policies, the specific population being
served, and the nature of the client’s concerns. Counselors practicing online must pay
careful attention to informed consent. The role and place of technology and social media
must be discussed at the earliest stage of therapy (Wilcoxon, 2015). There is no assurance
that practitioners can avoid legal action, even if they do obtain written informed consent.
Rather than focusing on legalistic documents, we suggest that you develop informed
consent procedures that stress client understanding and foster client–counselor dialogue
within the therapeutic partnership.
Topics selected for discussion during early counseling sessions are best guided by
the concerns, interests, and questions of the client. Although it is essential to review
informed consent with clients in the initial sessions, doing so only at this time is not
adequate. Clients are often anxious during their first sessions and are likely to miss
important details. As concerns arise in therapy, clients can be informed about the key
aspects of the informed consent process and invited to discuss relevant topics. Let’s
examine in more detail some of the topics about which clients should be informed.
It may be difficult to give clients a detailed description of what occurs in their
therapy, but some general ideas can be explored. We support the practice of letting clients
know that counseling might open up levels of awareness that could cause pain and
anxiety. Clients who require long-term therapy need to know that they may experience
changes that could produce disruptions and turmoil in their lives. Some clients may
choose to settle for a limited knowledge of themselves rather than risk this kind of
disruption, and this should be explored but also respected. We believe it is appropriate to
use the initial sessions for a frank discussion of how change happens. Clients should
understand the procedures and goals of therapy and know that they have the right to
refuse to participate in certain therapeutic techniques.
It is a good practice to inform clients about the assessment process. Therapists ask
many questions of clients during the intake session and the assessment process, and
clients are more likely to cooperate in providing honest information if they know why
they are being questioned. This first session is different from others in that the client is
being asked more questions than usual to obtain a quality assessment. This assessment
often includes areas typically influencing the quality of life, such as family of origin,
culture, divorce, substance abuse, immigration status, traumatic events, and religious and
spiritual background. Such questioning may reveal areas of a client’s life that shed light
on the presenting problem, identifying areas for potential exploration during the therapy
process.
Therapists can provide clients with a description of their training and education,
their credentials, licenses, any specialized skills, their theoretical orientation, and the
types of problems that are beyond the scope of their competence. State licensure boards
often make giving this information a legal requirement. If the counseling will be done by
an intern or a paraprofessional, clients must be made aware of this fact. Likewise, if the
provider will be working with a supervisor, this fact should be made known to the client.
This description of the practitioner’s qualifications, coupled with a willingness to answer
any questions clients have about the process, reduces the unrealistic expectations clients
may have about therapy; it also reduces the chances of complaints to a licensing board
and malpractice actions.
All costs involved in counseling or psychological services, including methods of
payment, must be provided at the beginning of these services. A therapist’s policy on
charging for missed appointments or late cancellations should be clearly stated. Clients
need to be informed about how insurance reimbursement will be taken care of and any
limitations of their health plan with respect to fees. If fees are subject to change, this
should be made clear in the beginning, preferably both verbally and in writing. Most
ethics codes have a standard pertaining to establishing fees. Matters of finance are
delicate and, if handled poorly, can lead to problems. Clark and Sims (2014) note that the
topic of setting and collecting fees tends to be difficult for some practitioners, especially
those struggling with their beliefs regarding their self-worth, their sense of competency,
and the value of the therapy services they offer. Practitioners new to the profession often
experience a sense that they do not deserve the fees they are receiving. Family-of-origin
issues also may influence therapists’ comfort levels in discussing fees. Clark and Sims
point out that therapists who were raised to put others’ needs before their own or who
were taught that discussing finances was impolite may be hesitant to broach the issue of
fees because doing so is embarrassing and uncomfortable.
In establishing fees, practitioners might consider a fee range that is commonly
accepted in a given community. It is best practice to come to an agreement on fees at the
beginning of a professional relationship. Matters of fees should be documented in the
client’s record. Mental health practitioners put themselves and the therapeutic
relationship at risk if they allow a client to accrue a large debt without discussing a plan
for payment. Although therapists can initiate legal action against a client for nonpayment
of fees, this is likely to damage the therapeutic relationship. It is generally not legally
advisable either because it can result in the client filing a counterclaim against the
counselor. The manner in which fees are handled has much to do with the tone of the
therapeutic partnership. Most professional codes of ethics have a pro bono guideline that
encourages practitioners to share their expertise with those who cannot afford to pay for
services. Individual practitioners will aspire to different standards regarding pro bono
work, but denying needed services to clients as soon as their insurance has been
exhausted raises concerns regarding ethical practice and standards of care. In the spirit of
aspirational ethics, therapists would do well to allow for some low fee sessions in their
practice. Clinicians should strive to see that clients obtain the services they need.
Clients should be told that they can choose to terminate therapy at any time, yet it
is important for the client to discuss the matter of termination with the therapist. Part of
the informed consent process involves providing clients with information about the
length of treatment and the termination of treatment. Regardless of the length of
treatment, it is important for clients to be prepared for a termination phase. Termination
should be addressed at the outset of the professional relationship and revisited at various
stages of therapy, especially when termination is anticipated. An effective termination
process is critical in securing trust in the overall therapy process and minimizing the
return of symptoms or feelings of exploitation. Termination is a key phase of every
client’s treatment, and therapists should help clients plan for it, prepare for it, and process
it.
Because practitioners differ with respect to an orientation of long-term versus
short-term therapy, it is important that they inform clients of the basic assumptions
underlying their orientation. In a managed care setting, practitioners need to have
expertise in assessing a client’s main psychological issues and matching each client with
the most appropriate intervention. They also need to acquire competency in delivering
brief interventions. Part of informing clients about the therapeutic process entails giving
them relevant facts about brief interventions that may not always meet their needs.
Clients have a right to know how their health care program is likely to influence the
course of their therapy as well as the limitations imposed by the program. The managed
care dictum appears to be “the shorter, the better.” Clients are vulnerable to the judgment
of others (the HMO provider) regarding length of treatment, nature of treatment,
techniques to be used, and content of treatment sessions. From our perspective, the best
length of treatment is the one that generates healing and client growth in the most
efficient time.
Clients have a right to expect that their therapy will end when they have realized
the maximum benefits from it or have obtained what they were seeking when they
entered it. The therapist and the client need to explore the reality of termination early in
the therapy process. As a part of the informed consent process, therapists should discuss
what they expect from clients and how those expectations relate to termination. Some
clinical reasons for termination—clients not making progress, the failure of clients to
cooperate with the basic elements of treatment, clients not paying their therapy bills—
should be discussed openly early in the therapy process (Knapp et al., 2015). Termination
of therapy, with or without managed care involvement, is of critical concern in the
therapeutic relationship. It demands the same kind of care and attention that initiated the
professional relationship.
Student counselors generally meet regularly with their supervisors and fellow
students to discuss their progress and any problems they encounter in their work. It is
good policy for counselors to inform their clients that they may consult with other
professionals on their cases. Experienced clinicians schedule consultation meetings with
their peers when they sense the need to do so. Even though it is ethical for clinicians to
discuss their cases with other professionals, it is wise to routinely let clients know about
this. Clients will then have less reason to feel that the trust they are putting in their
counselor is being violated. When consulting with colleagues, the name of the client and
other specific identifying information should not be disclosed under most circumstances.
Most ethics codes specify that therapists should consider the welfare of their
clients when it is necessary to interrupt or terminate the therapy process. It is a good
practice to explain early in the course of treatment with clients the possibilities for both
expected and unexpected interruptions in therapy and how they might best be handled. A
therapist’s absence might appear as abandonment to some clients, especially if the
absence is poorly handled. As much as possible, therapists should have a plan for any
interruptions in therapy, such as vacations or long-term absences. When practitioners
plan vacations, ethical practice entails providing clients with another therapist in case of
need. Clients need information about the therapist’s method of handling emergencies as
part of their orientation to treatment. Practitioners will need to obtain a client’s written
consent to provide information to their substitutes. It is recommended that therapists
include in their informed consent document the name of at least one professional
colleague who is willing to assume their professional responsibilities in the event of an
emergency, such as the therapist becoming incapacitated through injury or death (McGee,
2003). Contact information for the therapist’s records custodian or emergency response
team also can be included in the informed consent document. For more information on
this topic, we recommend Private Practice Preparedness: The Health Care Professional’s
Guide to Closing a Practice Due to Retirement, Death or Disability.
Clients should have some information about both the benefits and the risks
associated with a treatment program. Clients are largely responsible for the outcomes of
therapy, so it is a good policy to emphasize the client’s responsibility. Clients need to
know that no promises can be made about specific outcomes, which means that ethical
practitioners avoid promising success. When therapists use nontraditional techniques,
clients need to be informed about the potential risks involved. For example, clients who
choose online services must be told the advantages and disadvantages of this form of
service delivery. Only then can clients decide whether this approach to therapy is right
for them.
According to the ethics codes of some professional organizations, clients need to
know about alternative helping systems. It is a good practice for therapists to learn about
community resources so they can present these alternatives to a client. Some alternatives
to psychotherapy include self-help programs, stress management, personal-effectiveness
training, peer self-help groups, indigenous healing practices, bibliotherapy, 12-step
programs, support groups, and crisis intervention. This information about therapy and its
alternatives can be presented in writing, through an audiotape or videotape, or during an
intake session. An open discussion of therapy and its alternatives may, of course, lead
some clients to choose sources of help other than therapy. For practitioners who make a
living providing therapy services, asking their clients to consider alternative treatments
can produce financial anxiety. However, openly discussing therapy and its alternatives
may reinforce clients’ decisions to continue therapy. Clients have a right to know about
alternative therapeutic modalities (such as different theoretical orientations and
medication) that are known to be effective with particular clients and conditions.
Many agencies require that interviews be recorded for training or supervision
purposes. Clients must consent before a therapist or trainee may audiotape or videotape
any session, and this consent must be documented in the clinical record (Nagy, 2011).
Therapists sometimes make recordings because they can benefit from listening to them or
by having colleagues listen to their interactions with clients and give them feedback.
Some agencies allow recordings, but more and more do not support this training method
due to HIPPA and confidentiality concerns. In these cases, live observations may be an
option for students in education programs as well as those who are participating in
supervision. Clients have a right to decline recordings or live observations. It is critical
that clients understand why the recordings and live observations are made, how they will
be used, who will have access to them, how they will be stored, and how and when
recordings will be destroyed.
Clinical records are kept for the benefit of clients. Remley and Herlihy (2016)
maintain that clients have a legal right to inspect and obtain copies of records kept on
their behalf by professionals. Clients have the ultimate responsibility for decisions about
their own health care and, in most circumstances, also have the right of access to
complete information with respect to their condition and the care provided. A
professional should write about a client in descriptive and nonjudgmental ways with the
expectation that the client may see the file someday. A clinician who operates in a
professional manner should not have to worry if these notes were to become public
information or were read by a client. Some clinicians question the wisdom of sharing
counseling records with a client.
They may assume that their clients are not sophisticated enough to understand
their diagnosis and the clinical notes, or they may think that more harm than benefit could
result from disclosing such information to clients. Rather than automatically providing
clients access to what is written in their files, some therapists give clients an explanation
of their diagnosis and the general trend of what kind of information they are recording.
Other clinicians are willing to grant their clients access to information in the counseling
records they keep, especially if clients request specific information. If a decision is made
to show the clinical records to a client, Knapp and VandeCreek (2012) recommend that
the clinician be present. Clients may misconstrue the language contained in the records
unless the therapist is present to interpret the data.
One of the major obstacles for some therapists to the open sharing of files with
clients is the need to give clients a diagnostic classification as a requirement for receiving
third-party reimbursement for psychological services. Some clients are not informed that
they will be so classified, what those classifications are, or that the classifications and
other confidential material will be given to insurance companies. Clients also do not have
control over who receives this information. For example, in a managed care system,
office workers will have access to specific information about a client, such as a diagnosis.
Ethical practice includes informing clients that a diagnosis can become a permanent part
of their file, and that can have ramifications in terms of costs of insurance, long-term
insurability, and employment. Remley and Herlihy (2016) recommend that a phrase
regarding diagnosis be included in the informed consent document. They believe that
counselors should disclose the diagnosis to the client when the diagnosis is placed in the
client’s clinical record. If an initial diagnosis is later revised as a result of a reassessment
of the client’s condition, this change should also be discussed with the client.
The well-documented risks of diagnosis, such as the potential of being
stigmatized at work or school, should be disclosed to clients (Kress, Hoffman, Adamson,
& Eriksen, 2013). “In the short term, it might seem more beneficent to give clients
information that will encourage them to receive the services they seem to need, but for
some clients the long-term consequences of diagnosis may outweigh the treatment
benefits” (p. 18). For example, it is possible that future employers or insurance providers
may deny a person a job or insurance coverage, respectively, based on a preexisting
condition that is part of the individual’s permanent record. Moreover, employers may
label some clients as unsuitable employees “because their mental health needs are severe
or from fear that they will raise employer insurance premiums” (p. 20). Kress and
colleagues advise counselors to provide their clients with the following information about
the diagnostic process: (a)Lwhether the client’s insurance provider requires a diagnosis;
(b) the typical problems associated with a diagnosis; (c) the benefits of receiving a
diagnosis; and (d) the options a client can pursue should he or she choose not to receive a
diagnosis or not to have an insurance provider involved.
d. The Professional’s Responsibilities in Record Keeping
From an ethical, legal, and clinical perspective, an important responsibility of
mental health practitioners is to keep adequate records on their clients. The standard of
care for all mental health professionals requires keeping current records for all
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. “Clinical records hold life-changing
power,” says Pope. He adds that a record’s facts, conclusions, inferences, inaccuracies,
gaps, wording, and tone can all affect whether a person gets a security clearance,
maintains custody of a child, receives life-saving assistance in a crisis, or gets needed
accommodations for a disability in the workplace. Record keeping serves multiple
purposes. The primary reasons for keeping records are to provide high-quality service for
clients and to maintain continuity of care when a client is transferred from one
professional to another.
Good record keeping also protects counselors because it can demonstrate that
adequate care was provided, which could be an issue in a disciplinary hearing.
Counselors are expected to document decisions they have made and actions they have
taken (Remley & Herlihy, 2016). From a clinical perspective, record keeping provides a
history that a therapist can use in reviewing the course of treatment. From an ethical
perspective, records can assist practitioners in providing quality care to their clients.
From a legal perspective, state or federal law may require keeping a record, and many
practitioners believe that accurate and detailed clinical records can provide an excellent
defense against certain malpractice claims. From a risk management perspective, keeping
adequate records is the standard of care. Accurate, relevant, and timely documentation is
useful as a risk management strategy.
Maintaining clinical notes serves 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. Although keeping records is a basic part of a counselor’s
practice, Remley and Herlihy (2016) believe doing so should not consume too much time
and energy. Remley and Herlihy suggest that it is wise for counselors to document
actions they take when they are carrying out ethical or legal obligations, yet it is not
appropriate for them to neglect serving clients in order to write excessive notes that are
basically self-protective. Practitioners need to balance client care with legal and ethical
requirements for record keeping.
Process notes, or psychotherapy notes, are not synonymous with progress notes;
process notes deal with client reactions such as transference and the therapist’s subjective
impressions of a client. Other areas that might be included in the process notes are
intimate details about the client; details of dreams or fantasies; sensitive information
about a client’s personal life; and a therapist’s own thoughts, feelings, and reactions to
clients. Process notes are not meant to be readily or easily shared with others. They are
intended for the use of the practitioners who created them. One way of thinking about
process (or psychotherapy) notes is to view them as a form of self-consultation and a way
to organize ideas to bring up in supervision. As a general rule, it is best to exclude from
process notes matters pertaining to diagnosis, treatment plan, symptoms, prognosis, and
progress.
The law requires clinicians to keep a clinical record (progress notes) on all clients,
but the law does not require clinicians to keep process (psychotherapy) notes. The
HIPAA privacy rule allows clinicians to keep two sets of records, but it does not mandate
it. When introduced, this HIPAA provision was “heralded as a major benefit for mental
health practitioners” (DeLettre & Sobell, 2010, p. 160), and its low utilization has been a
surprise to some researchers. DeLettre and Sobell discovered that 79% of the 464
doctoral-level psychologists they surveyed were aware of the HIPAA privacy rule
allowing for a separate set of notes, but only 46% reported using such notes. The idea and
benefit of keeping two sets of records is that one set (progress notes) is more general, less
private, and more readily accessible to insurers and clients. The other set (process or
psychotherapy notes) is more private and for the use of the therapist. Psychotherapy notes
may contain the therapist’s clinical hunches, matters to raise for supervision, personal
reactions to the client, or hypotheses for further exploration. If a therapist does keep
process notes, they must be kept separately from the individual’s clinical record. Legal
requests for documentation in the context of litigation may include requests for process
notes as well as progress notes, so it is prudent to consider that process notes may also
someday become.
Some therapists choose to devote their time to delivering service to clients rather
than recording process and progress notes. However, these notes are an important part of
practice. At times, therapists may operate on the assumption that keeping clinical records
is not an effective use of the limited time they have, which means they would likely adopt
a minimalist approach to record keeping. Clinicians may not keep notes because they
believe that they can remember what clients tell them, because they are concerned about
violating a client’s confidentiality and privacy, because they do not want to assume a
legalistic stance in their counseling practice, or because they think they do not have time
to keep notes on their clients. Regardless of the reason for not keeping records, in today’s
climate this is inexcusable and violates the common standards of practice. Keeping
records is no longer a voluntary task; it is now an ethical, clinical, and legal requirement.
According to Rivas-Vazquez and his colleagues (2001), the adage “if it is not
documented, it did not happen” has never been more relevant than in a climate of
heightened awareness of potential liability exposure. These authors outline the specific
domains required for comprehensive documentation practices. Professional ethics codes
also outline the requirements of good record keeping (see the Ethics Codes box titled
“Record Keeping”), and as noted earlier, the American Psychological Association has
updated its Record Keeping Guidelines as well.
When counseling a couple or a family, the identified client may be the system, in
which case a practitioner might keep a single record for the couple or the family. In
counseling couples, whether records are kept on individuals or a conjoint record is
maintained depends on a number of factors. Various jurisdictions have different record
keeping requirements. This matter is also determined to some extent by whether the
couple is the client or each individual is a separate client. If the couple is considered the
client, there is a basis for a single record (Harway, Kadin, Gottlieb, Nutt, & Celano,
2012). Drogin and his colleagues (2010) note that “experienced psychologists usually
develop a philosophy of documentation for couple and family psychotherapy that fits
their own treatment model and practice settings” (p. 241). They acknowledge that it may
be crucial to document “relational data” in their client records, not simply clinical
information specific to individual clients. They believe it is “imperative to inform each
party about record maintenance and who will have access to information” when treating
multiple clients, whether in a group therapy context or a couples or family therapy
context (p. 241). This discussion should take place at the outset of services.
Practitioners working within a managed care setting are required to maintain
adequate documentation of treatment services. A managed care program may audit a
practitioner’s reports at any time. By law, managed care practitioners are required to keep
accurate charts and notes and must provide this information to authorized chart
reviewers. Case law, licensure board statutes and rules, and Medicare/Medicaid
reimbursement regulations all contribute to defining the minimum information that
mental health records must contain in the managed care context. This information
includes the following: client-identifying information; client’s chief complaints,
including pertinent history; objective findings from the most recent physical examination;
intake sheet; documentation of referrals to other providers, when appropriate; findings
from consultations and referrals to other health care workers; pertinent reports of
diagnostic procedures and tests; signed informed consent for treatment form; diagnosis,
when determined; prognosis, including significant continuing problems or conditions; the
existence of treatment plans, containing specific target problems and goals; signed and
dated progress notes; types of services provided; precise times and dates of appointments
made and kept; termination summary; the use and completion of a discharge summary;
and release of information obtained. A managed care company may demand a refund for
services rendered if the records do not contain a complete description of all the services
rendered.
In some counseling settings, it may be difficult to keep up with record keeping.
For example, in school counseling a student-to-counselor ratio of 400:1 (or more) is not
uncommon. How realistic is it to expect a school counselor to keep detailed notes on
every contact with a student? Birdsall and Hubert (2000) indicate that a wellkept record
may be useful to demonstrate that the quality of counseling provided was in line with an
acceptable standard of care. Keeping records is particularly important in cases involving
moderate to severe social or emotional problems or when students may be at risk of
suicide (Remley, 2009). Maintaining records on parent contacts is also essential. School
counselors are cautioned about the importance of safeguarding the confidentiality of any
records they keep. Many schools maintain a computer-based note system where the
school counselor can easily log contacts without much detail.
Clients’ records must be handled confidentially. ACA’s (2014) Code of Ethics
provides guidelines for storing, transferring, sharing, and disposing of clinical records.
Counselors have the responsibility for storing client records in a secure place and
exercising care when sending records to others by mail or through electronic means. Due
to technological innovations in the production, storage, protection, and retrieval of digital
information over the past several years, this seemingly straightforward issue has become
increasingly complex. Pope (2015) believes that to “create a sound approach to clinical
records, professionals must do a better job of recognizing and responding proactively to
threats to confidentiality” (p. 348). He echoes the view shared by others that “these
threats may come from the rapidly evolving technologies used to record, store, and
communicate clinical information” (p. 348). He adds that threats to confidentiality may
come from a number of sources including advertisers, industries, credit companies,
government agencies, and thieves looking for access to confidential information to use
for their own self-interests. Pope cautions us that threats may result from our failure to
adequately safeguard clinical records.
Technological advances such as “cloud” computing have occurred at breakneck
speed in recent years. Although counselors may enjoy the benefits of this technology (for
example, improved service delivery), helping professionals who utilize the cloud as an
off-site storage tool may be exposing themselves and their clients to unforeseen risks.
“As records are moved to the cloud, psychologists’ [and other practitioners’] ability to
exert control over them may diminish to some unknown degree. . . . Furthermore, the
aggregation of sensitive data in such large centers may increase the appeal for potential
cybercriminals to steal the information” (Devereaux & Gottlieb, 2012, p. 629). Data may
be encrypted to reduce this risk, but other technical difficulties are possible such as
technical support staff working for the cloud service provider having access to
confidential client data. To learn more about record keeping in the cloud and steps that
can be taken to reduce the threats associated with cloud computing, refer to Devereaux
and Gottlieb (2012).
Be aware that the information in the client’s record belongs to the client, and a
copy may be requested at any time. It is mandatory to treat clients in an honest and
respectful fashion, and it is expected that accurate records will be kept. Mental health
practitioners bear the ultimate responsibility for what they write, how they store and
access records, what they do with these records, and when and how they destroy them
(Nagy, 2005). Clinicians are ethically and legally required to keep records in a secure
manner and to protect client confidentiality. They are also responsible for taking
reasonable steps to establish and maintain the confidentiality of information based on
their own delivery of services, or the services provided by others working under their
supervision. Practitioners need to consider relevant state and federal laws and the policies
of their work setting in determining how long to retain a client’s records. It is key to
determine the specific time period for retention of records that is required by the
jurisdiction in which you practice. Whether records are active or inactive, counselors are
expected to maintain and store them safely and in a way in which timely retrieval is
possible. Extra care should be taken if information is stored electronically.
e. Ethical Issues in Online Counseling
In this we consider a few key ethical issues in the use of online counseling and the
many forms of service delivery via the Internet. Mental health professionals now have a
wide range of digital and electronic options to communicate with and to provide a range
of clinical services to their clients, some of which include audio recordings, email chat,
videochat, social networking websites, text messaging, self-guided Web-based
interventions, and smartphone apps (Reamer, 2017). Haberstroh, Barney, Foster, and
Duffey, (2014) explored the scope of ethical and legal practice for online psychotherapy
for the major mental health professions. They observed a trend toward more states and
professions endorsing online therapy as a treatment modality. Only a few state regulatory
boards address online clinical practice through state laws or ethics codes, but Haberstroh
and his colleagues found that no states actually prohibited it. This rapidly developing
field involves both benefits and risks, and just as with any new practice area, practitioners
have an obligation to consider the best interests of the client, to strive to do no harm, and
to adhere to legal requirements.
Mental health professionals have the responsibility of evaluating the ethical, legal,
and clinical issues related to providing counseling and behavioral services to individuals
over a distance (Mallen, Vogel, & Rochlen, 2005). Ethical issues such as informed
consent, confidentiality, privacy, self-disclosure, boundaries, and multiple relationships
can have special significance when Internet technologies are involved. A significant
ethical concern pertains to who is actually on the other end when providing distance
counseling. Mental health professionals must make decisions about how they wish to
incorporate technology in the delivery of services in their practices, and these decisions
should be informed by the standards set forth by the professional associations to which
they belong.
Most experts agree that Internet counseling cannot be considered traditional
psychotherapy, but some believe this form of service delivery may benefit consumers
who are reluctant to seek more traditional treatment. The benefits of online interventions
are vast because of the potential for greater numbers of people to receive services.
Reamer (2017) reports that research is demonstrating the effectiveness of distance
counseling with a variety of populations and conditions. Proponents make a case for the
capacity of digital technology to reach and enhance the delivery of services to vulnerable
people. For example, Web-based treatment interventions offer an opportunity for
practitioners to provide specific behavioral treatments tailored to individuals who may
need to seek professional assistance from their own homes. Clients with certain
disabilities or chronic illnesses that render them immobile could find online counseling
beneficial. Kolmes (2017) claims that “the explosion of social media culture is opening
up new opportunities for connection for psychotherapists and their clients” (p. 193).
Rummell and Joyce (2010) state that “one of the most commonly described benefits of
online counseling is that it allows the clinician to access hard to reach populations, such
as those in a rural or otherwise remote environment where a trip to a psychological clinic
is difficult, unrealistic, or impossible” (p. 484). One study on Australian adolescents’
preferred modes of delivery for mental health services found that only 16% favored
online treatment; those who expressed a preference for this modality emphasized benefits
such as remaining anonymous, finding information easily accessible online, and finding
others in chat rooms who had similar experiences (Bradford & Rickwood, 2014).
Glasheen, Shochet, and Campbell’s (2016) study of Australian secondary school students
found that more than 80% claimed they would definitely use or might use online services
offered by the school counselor, especially to deal with concerns of a sensitive or
personal nature such as sexuality. One possible benefit of discussing personal issues
online is that students with concerns about their sexuality can control their visibility.
Because providing counseling services over the Internet (also known as remote
services or distance counseling) is relatively new and controversial, a host of legal
questions will not be addressed until lawsuits are filed pertaining to its use, or misuse, in
counseling practice. One of the most pressing issues regarding the use of remote services
or Internet counseling is whether it is legal for a mental health practitioner who is
licensed in one state to treat a client in another state by telephone or over the Internet.
A clinician’s license is intended for practice in the state where he or she is
licensed to practice. Some states have ruled that licensed mental health professionals
cannot practice online counseling in states in which they are not licensed. However, this
is a complex matter, and some state licensing laws are archaic and do not recognize
contemporary digital realities (Zur, 2016). Counselors need to stay current regarding the
changing laws pertaining to counseling across states. Counselors are advised to check the
laws both in the state where they practice and in the state where their client is located.
Check with legal counsel or one’s licensure board before engaging in online counseling
or telephone counseling with outof-state clients. It is a good idea for counselors also to
check with their malpractice insurance carrier if they plan to engage in these activities.
According to Zur, the state in which the client resides is more likely to be concerned
about whether its laws were violated by a therapist who is not licensed in that state.
Licensing boards have a legal mandate to protect consumers who live in their state; they
do not have an obligation to consumers who do not reside in their state.
Can clients who cross state lines receive professional services via a telephone or
video session when they have a matter they want to discuss with their therapist without
jeopardy to the practitioner? According to Leslie (2016), clients have a right to expect
that their therapist will continue to be available during the course of the professional
relationship, especially during a crisis situation or in times of need, even when
temporarily out of state. Leslie criticized a licensing board that published a notice to
California consumers that if they are traveling to another state and want to participate in
counseling via the telephone (or online) with their Californialicensed therapist, the
therapist needs to check with the state where clients are temporarily located to see if this
is permitted. Leslie contends that this notice is contrary to decades of safe and ethical
practice nationwide in which clients’ best interests are given priority and continuity of
care with their therapist of choice is expected.
The smartphone has been used more and more over the past few years by mental
health providers. Increasingly, clinical programs are encouraging or even requiring
clients to download apps on their smartphones to record information about their clinical
symptoms, moods, and behaviors; to obtain psychoeducation information or automated
messages from clinicians (e.g., supportive messages); and to obtain links to local
resources, such as the locations of nearby 12-step meetings (Reamer, 2015). From an
ethical perspective, smartphone use may have unintended consequences, so
psychotherapists must assess whether smartphones are a useful and appropriate adjunct to
treatment on a client-by-client basis. Some clients may become overly dependent on their
smartphones, which could result in increased anxiety when they are without these
devices.
Therapists do not have to choose between online counseling and traditional face-
to-face counseling. Technology can be used in the service of clients and can address
some unique needs, especially if therapists combine remote therapy and in-person
sessions. For example, therapists might require one to three face-to-face sessions, if at all
possible, to determine the client’s suitability for online counseling and to establish a
working therapeutic relationship. We think this will increase the likelihood that online
services will be effective. During these face-to-face sessions, time could be allocated for
orienting the client to the counseling process and securing informed consent, taking the
client’s history, conducting an assessment and formulating a diagnostic impression,
collaboratively identifying counseling goals, developing a general treatment plan, and
formulating a specific plan of action. As the action plan is carried out following these
initial sessions, online sessions could be used to monitor specific homework assignments.
Depending on the client’s needs and situation, there might be face-to-face sessions
scheduled at regular intervals along with online counseling. Integrating traditional in-
person therapy with remote therapy in this way can accommodate consumers who would
not take advantage of counseling delivered exclusively by face-to-face sessions due to
financial considerations or restrictions imposed by traveling long distances.
f. Working With Children and Adolescents
The definition of a minor varies from state to state (Barnett & Johnson, 2015).
The upper range is 18 to 21 years of age, although some states authorize 16-year-olds to
consent to their own health care in some circumstances. Consistent with the increasing
concern over the rights of children in general, more attention is being paid to issues such
as the minor’s right of informed consent. Barnett and Johnson maintain that therapists
should clearly discuss the limits of confidentiality with minors as part of the informed
consent process, even in those cases when a parent or guardian consents to treatment.
Each state has specific statutes and regulations that offer guidance to clinicians
working with children and adolescents, and practitioners should become familiar with the
laws in their state pertaining to minors. In most states, for a minor to enter into a
counseling relationship, it is necessary to have informed parental or guardian consent or
for counseling to be court ordered, although there are exceptions to this general rule.
Parents or guardians generally have the legal right to know the contents of counseling
sessions with their children (Remley & Herlihy, 2016). Informed consent of parents or
guardians may not be legally required when a minor is seeking counseling for addictions
to dangerous drugs or narcotics, for sexually transmitted diseases, for pregnancy and birth
control, or for an examination following alleged sexual assault of a minor over 12 years
of age (Lawrence & Kurpius, 2000).
The justification for allowing children and adolescents to have access to treatment
without parental consent is that some minors might not otherwise seek needed treatment.
Some children and adolescents who seek help when given independent access might not
do so without the guarantee of privacy. It is important that you check with your state
regarding the current laws if you are a school counselor or school psychologist. Marriage
and family therapists, clinical social workers, licensed clinical mental health counselors,
and psychologists may operate under different laws. For example, a recent California law
allows mental health practitioners to provide counseling services to a consenting minor
age 12 or older if the practitioner determines the minor is mature enough to participate
intelligently in the treatment.
