Legal and Ethical Issues in Counseling Minor Clients Law & Ethics Conference New Orleans, LA Wednesday, April 6, 2016 Beth Berger, LPC, NCC Geoffrey Brazda, LPC, NCC Chelsey Ragas, PLPC, NCC Ryan White, LPC, NCC

Case Example: Private Agency Setting Adolescent female child approximately 15 years of age, at the behest of her grandmother who is the current guardian (not holding legal custody), is referred to you for behavioral issues and severe depression. Only custodial parent, the mother, is an imprisoned drug addict with no contact with child for over a year. Question: According to the laws of your state regarding Informed Consent and best practices of your profession, what can you do for this client?

Objectives To review relevant ethical codes regarding minors, informed consent and privacy and also some examples of state law regarding informed consent. To consider two primary questions: What is the limit to which a minor client can consent to counseling without explicit parental or custodial representative knowledge or consent? What is the limit to which a minor client has the right to privacy and confidentiality? In the Counseling field at least, these questions are often best considered within a provider context, namely schools or private practice/agency settings. Give/share personal examples of problems encountered in working with minor clients in school and private counseling contexts.

What is a minor client? Minors – generally, persons under the age of 18 years, unless otherwise designated by statute or regulation. In some jurisdictions, minors may have the right to consent to counseling without consent of the parent or guardian.

ACA Code of Ethics A.2.d. Inability to Give Consent When counseling minors, counselors seek the assent of clients to services and include them in decision making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect these clients and make decisions on their behalf.

ACA Code of Ethics B.2.d. Court-Ordered Disclosure When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of potential harm to the client or counseling relationship. B.2.e. Minimal Disclosure To the extent possible, clients (parent) are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circumstances require the disclosure of confidential information, only essential information is revealed.

ACA Code of Ethics B.5.a. Responsibility to Clients When counseling minor clients or adult clients who lack the capacity to give voluntary, informed consent, counselors protect the confidentiality of information received—in any medium—in the counseling relationship as specified by federal and state laws, written policies, and applicable ethical standards. B.5.b. Responsibility to Parents and Legal Guardians Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship, consistent with current legal and custodial arrangements. Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians regarding the welfare of their children/charges according to law. Counselors work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients.

ACA Code of Ethics B.5.c. Release of Confidential Information When counseling minor clients or adult clients who lack the capacity to give voluntary consent to release confidential information, counselors seek permission from an appropriate third party to disclose information. In such instances, counselors inform clients consistent with their level of understanding and take appropriate measures to safeguard client confidentiality.

ASCA Ethics When working in a school setting Give administration a copy of the ASCA Code of ethics and explain the roles, responsibilities and duties of a school counselor School counselors practice confidentiality through the following concepts In loco parentis Substantial interest/need to know Qualified privilege

ASCA Ethics A.1. Responsibilities to Students Professional school counselors: Have a primary obligation to the students Are knowledgeable of laws, regulations and policies relating to students and strive to protect and inform students regarding their rights. Recognize the complicated nature of confidentiality in schools and consider each case in context. Keep information confidential unless legal requirements demand that confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student.

ASCA Ethics A.1. Responsibilities to Students Professional school counselors: Recognize their primary obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives, especially in value-laden issues. Protect the confidentiality of students’ records and release personal data in accordance with prescribed federal and state laws and school policies including the laws within the Family Education Rights and Privacy Act (FERPA).

ASCA Ethics A.2. Confidentiality Professional school counselors: a. Inform individual students of the purposes, goals, techniques and rules of procedure under which they may receive counseling. Disclosure includes the limits of confidentiality in a developmentally appropriate manner. Informed consent requires competence on the part of students to understand the limits of confidentiality and therefore, can be difficult to obtain from students of a certain developmental level. b. Explain the limits of confidentiality in appropriate ways such as classroom guidance lessons, the student handbook, school counseling brochures, school Web site, verbal notice or other methods of student, school and community communication in addition to oral notification to individual students.

ASCA Ethics B.1. Parent Rights and Responsibilities Professional school counselors: a. Respect the rights and responsibilities of parents/guardians for their children and establish an appropriate and collaborative relationship for the benefit of the student b. Adhere to laws, local guidelines and ethical standards of practice when assisting parents/guardians experiencing family difficulties interfering with the student’s effectiveness and welfare. c. Are sensitive to diversity among families and recognize that all parents/guardians, custodial and noncustodial, are vested with certain rights and responsibilities for their children’s welfare by virtue of their role and according to law.

ASCA Ethics B.1. Parent Rights and Responsibilities Professional school counselors: d. Inform parents of the nature of counseling services provided in the school setting. e. Adhere to the FERPA act regarding disclosure of student information. f. Work to establish, as appropriate, collaborative relationships with parents/guardians to best serve student.

ASCA Ethics B.2. Parents/Guardians and Confidentiality Professional school counselors: a. Inform parents/guardians of the school counselor’s role to include the confidential nature of the counseling relationship between the counselor and student. b. Recognize that working with minors in a school setting requires school counselors to collaborate with students’ parents/guardians to the extent possible. c. Respect the confidentiality of parents/guardians to the extent that is reasonable to protect the best interest of the student being counseled.

ASCA Ethics B.2. Parents/Guardians and Confidentiality Professional school counselors: d. Provide parents/guardians with accurate, comprehensive and relevant information in an objective and caring manner, as is appropriate and consistent with ethical responsibilities to the student. e. Make reasonable efforts to honor the wishes of parents/guardians concerning information regarding the student unless a court order expressly forbids the involvement of a parent(s). In cases of divorce or separation, school counselors exercise a good-faith effort to keep both parents informed, maintaining focus on the student and avoiding supporting one parent over another in divorce proceedings.

Legal & Ethical Statutes and laws vary from state to state Some states create their own laws/ethics or adopt ACA’s or NBCC’s ethical codes When in doubt, consult local law Informed consent: Note that for schools, Remley and Herlihy (2014) have stated that school counselors do not need explicit parental permission or release to counsel a student unless school policy or local law overrides Release of Information: Remember in loco parentis substantial interest/need to know, and qualified privilege Letters to school Reporting Department of Child and Family Services (DCFS) Police

Information Sources: State Law for Minor Informed Consent The National Center for Children in Poverty (NCCP) provides a database that gives information about each state’s extent to minors and informed consent. These usually cover the following: Consent to General Medical Treatment Consent to Mental Health Care Consent to Drug Abuse Treatment Consent to Treatment for Sexually Transmitted Diseases Consent for Prenatal Care or Abortion The information is general, however, and may refer to minors with emancipated status. Up-to-date state laws should be consulted.

Examples: Louisiana State Law for Minor Informed Consent Actual State Laws are much more specific in their wording. The state of Louisiana covers minor informed consent to health care in a number of statutes RS 40:§1095. Medical treatment (for minors) RS 40:§1096. Treatment for drug abuse La. R.S. § 40: Minor's consent for treatment of venereal diseases Louisiana does not provide a lower age limit to these statutes. Some states do, however. Louisiana does not explicitly address the issue of mental health counseling in any general form for minors without custodial parent consent.

Contrast with other states for Minor Informed Consent Texas Family Code explicitly provides for minor informed consent in some medical, and mental health scenarios AND also allows for certain adult guardians who are not legal custodians to provide consent for medical and mental health care in certain situations as well. California’s Mental Health Services for At-Risk Youth Act (SB 543) provides for minors as young as 12 to seek out and consent mental health services for themselves.

Louisiana Laws on Joint Custody 2014 Louisiana Laws Revised Statutes—Joint custody decree and implementation order A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown (3) The implementation order shall allocate the legal authority and responsibility

Louisiana Custody Laws: Domiciliary 2014 Louisiana Laws Revised Statutes— Domiciliary Parent B.(2) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise (Medical, School, Psychological). All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child

Louisiana Custody Laws: Domiciliary 2014 Louisiana Laws Revised Statutes— Domiciliary Parent B.(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are the best interest of the child

Louisiana Custody Laws: Domiciliary 2014 Louisiana Laws Revised Statutes—Domiciliary Parent C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents of the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code

CASE STUDY Your 18-year-old client, who is involved in prostitution, calls and says that they need help because their “pimp” is looking for her and her family. She states that the pimp knows where her younger sibling attends school and knows her families address. The pimp has also stated that if she did not return to work then he would go after her family. What would you do?

Questions?

References American Counseling Association (2014). ACA Code of Ethics. Alexandria, VA. American School Counseling Association (2010). Ethical Standards for School Counselors. Alexandria, VA. Remley, T. P. & Herlihy, B. P. (2014). Ethical, Legal, and Professional Issues in Counseling (5 th Edition). New York City, New York: Pearson.