Counselors’ Legal and Ethical Responsibilities

Ethical and Legal Standards of Care in Counseling: What Should Mark Do? Mark Hopkins is a Licensed Clinical Professional Counselor who works with a private Christian counseling center. Mark’s particular religious philosophy and belief is that homosexuality should not be encouraged. A new client, Peter Hall, has come to his first counseling session with the stated intention of improving his relationship with his partner, Rick Johnson.

 Define the Problem/Dilemma  Identify Relevant Variables  Ascertain Law, Ethics Codes and Policy  Consider Personal Influences  Obtain Outside Perspective  Weigh Options and Consequences  Decide and Take Action  Document Decision-Making and Follow-up Dana Add Citation here: Wheeler and others

Mark Hopkins' values pose an ethical dilemma for counseling his client, Peter Hall, about his homosexual relationship with his partner. The core problem is the clinician's values are in conflict with the client's values, and this problem has legal, ethical, clinical, professional, and moral dimensions If Mark imposes his own values on his client, either actively or passively, he will not be able to meet the standards of care mandated by the law and the counseling profession.

It is unknown the extent to which Mark is aware of his values and how these values affect his clinical work. There is a risk that Mark could impose his values, either actively or passively, and in so doing, harm to his client. It is possible, however for counselors like Mark to engage in clinical practice with “nonjudgmental and accepting attitudes, regardless of [their] own value system.” (Fix this citation, including original source. Corey et al, p. 139).

Maryland law stipulates that “A counselor may not: (a) Place or participate in placing clients in positions that may result in damaging the interests and the welfare of clients… (b) Condone or engage in discrimination based on …sexual orientation…”. (COMAR, )

"Ethics represents aspirational goals, or the maximum or ideal standards set by the profession, and they are enforced by professional associations, national certification boards, and government boards that regulate professions" (Incorrect citation style Corey et al, p. 14)

There are two central points in the ACA Code of Ethics that apply to Mark’s dilemma: Avoiding Harm “Counselors act to avoid harming their clients … and to minimize or to remedy unavoidable or unanticipated harm.” (ACA Code, A.4.a) Personal Values “Counselors are aware of their own values, attitudes, beliefs, and behaviors and avoid imposing values that are inconsistent with counseling goals. Counselors respect the diversity of clients….” (ACA Code, A.4.b.)

Mark Hopkins is employed by a private Christian counseling center. Hermann and Herlihy (2006) suggest that counselors “might choose to work in settings that are compatible with their values” (Corey et al, p. 140). It is not known if Mark’s religious philosophy and belief is “compatible with” the values of this counseling center.

(1) Advertising Counselors should “advertise [their] values to potential consumers of counseling services” (Corey et al, p. 140). (2) Informed Consent Further, Hermann and Herlihy (2006) state that counselors “have an ethical duty to avoid harm to clients by ensuring that counselors’ informed consent procedures provide potential clients with adequate information about counselors’ values” (Corey et al, p. 140).

"Morality is concerned with perspectives of right and proper conduct and involves an evaluation of actions on the basis of some broader... religious standard" (Corey et al page 14) Mark’s particular religious philosophy and belief is that homosexuality should not be encouraged. (MORE HERE??????)

The people involved in this dilemma include the counselor, Mark Hopkins, LCPC; his gay client, Peter Hall and, indirectly, Peter’s partner, Rick Johnson. Ramifications of good or bad decisions and outcomes will also have an effect on the broader community. Treatment Goals: Peter's goal is to improve his relationship with his partner, Rick Johnson. Further treatment goals—either Mark’s or Peter’s—have not been specified.

Client Background/History/Dynamics: It is possible that Peter is Christian, as he has chosen to seek counseling at a private Christian counseling center. At this point, Peter’s social/psychological history is not known, including key information about his level of self-acceptance, his experiences as a gay man in a gay- unfriendly culture, etc. Mark's religious philosophy and belief is that homosexuality should not be encouraged, a fact which sets up a potentially harmful dynamic between the client and the counselor.

Multicultural Considerations: Peter may be Christian. It is possible Peter's religious philosophy and belief supports, or is neutral with respect to his sexual orientation. Given these value differences between Mark and Peter, it may be difficult for them to develop a trusting relationship. Further, it may be difficult for Mark to hold his religious views in tension with his mandate as a counselor to "avoid discriminating against... anyone on the basis of... sexual orientation." (AAPC Code, I.B.) Mark may need to examine his ability to offer counseling to Peter or any gay person.

"Working with lesbian, gay, and bisexual individuals presents a challenge to counselors who hold strong personal values regarding sexual orientation. Mental health professionals who have negative reactions to homosexuality are likely to impose their own values and attitudes, or at least to convey strong disapproval." (Multicultural Perspectives and Diversity Issues, p. 133) "Any therapist who may work with lesbian, gay or bisexual people has a responsibility to understand the special concerns of these individuals and is ethically obligated to develop the knowledge and skills to competently deliver services to them." (Multicultural Perspectives and Diversity Issues, p. 133)

The Case of Mark Hopkins bears strong resemblance to a 2001 case heard by the US Court of Appeals for the Fifth Circuit, Bruff v. North Mississippi Health Services, Inc. In this case, a counselor employed by North Mississippi Health Services refused to counsel a lesbian client on relationship issues because homosexuality was in conflict with her personal religious beliefs. After attempts were made to accommodate the counselor, she was eventually terminated. She subsequently sued her employer on the basis that her right not to act against her religious principles was protected by federal law. The court disagreed, and dismissed the case. Hermann and Herlihy, 2006

 “…An employer’s legal obligation to make reasonable accommodations for employees’ religious beliefs does not include accommodating a counselor’s request to refer homosexual clients who ask for assistance with relationship issues.” Hermann and Herlihy, 2006  The court found that refusing to counsel homosexual clients on specific issues constitutes discrimination. Hermann and Herlihy, 2006  Selectively refusing to work with a gay client on specific issues may cause emotional harm to the client. Hermann and Herlihy, 2006

The Equal Protection Clause of the 14 th Amendment specifically prohibits discrimination based on sexual orientation. (Supreme Court Romer v. Evans decision, 1996). Hermann and Herlihy, 2006 “Counselors cannot use their religious beliefs to justify discrimination based on sexual orientation. In addition, an employer can terminate the employment of a counselor who refuses to counsel clients on issues related to the client’s sexual orientation.” Hermann and Herlihy, p. 416

 Federal Law prohibits discrimination on the basis of sexual orientation.  The Supreme Court interprets selectively counseling homosexual clients as discrimination.  Maryland law prohibits discrimination based on sexual orientation. “From a legal perspective…refusing to counsel homosexual clients on relationship matters can result in the loss of a therapist’s job.” (Corey et al, 2007, p. 139).

Refusal to counsel a homosexual client is also grounds for malpractice “To prevail in a malpractice suit, a client must show that there was a duty owed to the client, that the counselor breached that duty, and that the client was injured (physically or emotionally) because the counselor breached his or her duty.” (Hermann and Herlihy, 2006 p. 416) Refusing to treat a homosexual client— or to selectively avoid counseling on certain issues—could result in a situation meeting the threshold of malpractice with gay clients.

Mr. Hopkins may be tempted to refuse to work with this client based only on his conflict with Peter Hall’s homosexuality. However, this “solution” to potential problems does not present a legal or ethical alternative to working with this client. Mr. Hopkins also cannot legally or ethically “selectively counsel” his client by refusing to discuss homosexual relationship issues.

According to the ACA Code of Ethics: “Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Counselors gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population.” ACA Code C.2.a. If Mark Hopkins is not currently competent to counsel Peter Hall because of a lack of training, education, or experience, he could ethically refer him to another counselor. Note: This analysis relies on the arguments of Hermann and Herlihy, 2006

“If counselors determine an inability to be of professional assistance to clients, they avoid entering or continuing counseling relationships. Counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. If clients decline the suggested referrals counselors should discontinue the relationship.” ACA Code A.11.b. It is suggested by court precedent that “an inability to be of professional assistance” is not the same as “values which conflict with the clients’.” Note: This analysis relies on the arguments of Hermann and Herlihy, 2006

 Mark's personal bias, "that homosexuality should not be encouraged," may affect his relationship with his client  It is possible that Peter would perceive Mark’s views, which could cause harm.  Duran, Firehammer, and Gonzales (2008, p. 288) in Corey et al "assert that culture [i.e. including sexual orientation] is part of the soul: 'When the soul or culture of some persons are oppressed, we are all oppressed and wounded in ways that require healing if we are to become liberated from such oppression." (Multicultural Perspectives and Diversity Issues, p ) Correct this citation

Obtaining an Outside Perspective Obtaining outside consultation and/or supervision is especially important for Mark Hopkins, who faces complex issues in his decisions about how to handle counseling a gay client, given his personal values. Consulting experts demonstrates a counselor's desire to provide the best possible care for clients (Corey, 2007), and is strongly supported by several aspects of the ACA ethics code.

"Counselors take reasonable steps to consult with other counselors or related professionals when they have questions regarding their ethical obligations or professional practice.“ (Section C.2.e ) "Counselors strive to resolve ethical dilemmas with direct and open communication among all parties involved and seek consultations with colleagues and supervisors when necessary" (Section H, Introduction ) "When uncertain as to whether a particular situation or course of action may be in violation of the ACA Code of Ethics, counselors consult with other counselors who are knowledgeable about ethics and the ACA Code of Ethics, with colleagues, or with appropriate authorities.“ (SectionH.2.d)

Mark can choose among several possible courses of action which are both legal and ethical. A) He can choose to counsel Peter on improving his relationship with his partner, Rick. If he chooses this pathway, he must do so with the intention of upholding his legal and ethical obligations to the client.

Mark can choose among several possible courses of action which are both legal and ethical. B) He can choose to refer Peter to another counselor who is more competent to provide the services requested. If he chooses this pathway, he must do so with the intention of upholding his legal and ethical obligations to the client. He cannot refer the client solely because his own values conflict with the values of the client.