Counseling and Legal Issues Robyn L. McClain, MS

Content Ethics vs Law Standard of Care Scope of Practice/ Competency Confidentiality Mandating Reporting Case Reviews

Ethics vs Law are normally developed by professional associations to guide the behavior of a specific group of professionals are more prescriptive than ethical standards have been incorporated into code, and carry greater sanctions or penalties for failure to comply.

Standard of Care in California Legal requirements of clinical practice include: - abiding by laws to protect and maintain confidentiality -responsibilities of mandated reporting -consent for treatment with minors -no sexual misconduct Disclosing of fees prior to treatment Principles utilized to identify negligence

Scope of Practice/ Competency Counselors provide services as individual, family or group to adults, children or both Counselors must maintain a frame of communication within the spectrum of skills Identification as the therapeutic interaction as a “special relationship” where one is perceived as the professional and the other dependent upon the other

Confidentiality Broad concept as a legal and ethical requirement placed on the counselor that restricts the volunteering of information obtained in a therapeutic relationship It’s a statutory law within the Business & Professional code

Confidentiality Maintains legal precedent in that counselors do not disclose: -crimes previously committed (unless against a protected class or against you as the counselor) -confidentiality survives the death of a client and must have a release of information by the deceased client’s representative

Examples of Breaches to Confidentiality Sending a thank you note for a referral Allowing client’s to overhear voice messages Allowing a view of an appointment schedule (including initials) Computer hacking that allows access to files Discussing a client in response to a phone call

Mandated Reporting Counselors are mandated reporters under the Child Abuse and Neglect Reporting Act (CARNA) www.leginfo.ca.gov Report child abuse, elder abuse and dependent adult abuse Alcohol and drug counselors in a private or stale licensed or certified drug, alcohol, or drug and alcohol treatment program are mandated reporters; however, substance use or misuse is NOT in and of itself a sufficient basis for reporting child abuse

Mandated Reporting Exceptions Tarasoff vs. Regents of Univ. of CA mandates mental health professionals to break confidentiality to protect a victim from violence. - Counselors have “Duty to Warn” and protect a potential and reasonably identifiable victim(s) from imminent risk of violence

Mandated Reporting: Tarasoff Mandate 2014 Must protect when the client or close family member of client or credible third party has communicated to counselor a serious and immanent threat of physical violence or a reasonably identifiable victim(s) and does not require to be verbal communication Must notify local (to the potential perpetrator) law enforcement within 24 hours of known imminent threat Also, therapist may warn potential victim (no mandate), hospitalizing client or establishing a “no violence plan”

Breaking Confidentiality due to Tarasoff Disclosure should be discreet as possible and limited to the prevention of the threatened violence. Least amount of necessary information to convey the seriousness of the threat or its credibility Credible information includes statements, current conduct, body language, pertinent history

Tarasoff Documentation Procedure Obtain name, badge number of person taking report (if denied ask for a superior or watch sergeant) Document the risk with a full assessment and conclusions Send follow-up certified letter to the police and intended victim stating concerns (calls generate no form, phone records may not be kept) Follow-up with aftercare and treatment needs

Tarasoff Case Review Paul comes to session very agitated and distressed because his best friend, a co-worker, just sent him a text message that he, the friend, was sitting outside their boss’ home with a gun and was going to get even for the way the boss humiliated him earlier today at a staff meeting. As a counselor, you should: A-take action under Tarasoff B-Encourage Paul to act but maintain confidentiality C-Break confidentiality, although not required D- Must carry out Tarasoff duty to protect since Paul is a credible 3rd party, the threat was imminent and the intended victim is identifiable.

Answer to Paul The correct answer is B A counselor has the responsibility to protect the public from the client’s dangerousness to others, Paul is not the party making threats in this case. Counselors have no responsibility for the conduct of other people who are not their clients (unless a minor, dependent adult or elderly 65 y/o or older)

Tarasoff Case Review Your client, Amanda, tells you that she just discovered her boyfriend cheated on her. She says that she has a gun and that she will kill him if he does not end the affair. Legally you would: A- Call the police and warn Amanda’s boyfriend B- Suggest a session with the boyfriend C- Maintain confidentiality D-Initiate a 5150 since Amanda is a danger to others

Answer to Amanda The correct answer is C Because the threat is conditional (“she will kill”) does not constitute imminent danger Having a session with the boyfriend does not address the issue of the counselor’s legal responsibility in this situation Maintaining confidentiality is what would be legally required of a therapist. There is NO mandate to break confidentiality because the threat is based on what may or may not take place and without further information about Amanda, it is not clear that she presents a danger to self or others.