Counselling and the Law Week 8 (part two)

Session Objectives Explore the relationship between counselling and the law Explain what ‘duty of care’ means and how it might impact in a counselling setting Discuss and record questions for next week’s visiting speaker

Counselling and the Law

Legal framework: Criminal and civil cases Criminal cases – brought by ‘the Crown’ against the accused. Guilt has to be proven ‘beyond reasonable doubt’ Civil cases – brought by an individual or organisation against another ‘somebody against somebody’. Proof can be on the balance of probability.

What kind of criminal activity might a counsellor become aware of?

What should I do? Confidentiality LAWS Ethical framework Duty of care Do I have to report? Crime Have I been negligent?

If a client tells me something criminal they have done, must I report it? In some cases, certain criminal offences MUST be reported. Criminal offences where the law requires compulsory disclosure include: Terrorism and terrorist activities. Section 38B of the Terrorism Act 2000 – it is a legal duty to disclose information about terrorist activities Drug trafficking and drug money laundering. Section 52 of the Drug Trafficking Act 1994, Proceeds of Crime Act It is an offence to fail to disclose information acquired about drug money laundering and it is an offence to ‘tip off’ a person that a drug money laundering investigation is being made.

What about client confidentiality?

Balancing legal obligations and client confidentiality ‘Defensible disclosure’ - “any therapist acting in good faith may, at their discretion, notify the relevant authorities about serious crime, with a degree of legal protection in the event of a civil case being brought against the therapist in respect of the disclosure” (Mitchels and Bond, 2010) There is no definition of a ‘serious crime’ but the Department of Health guidance is that murder, manslaughter, rape, treason, kidnapping,child abuse or other cases of serious harm may warrant breaching confidentiality.

Examples A client tells you they Murdered someone Have a clear plan to beat someone up Are planning a bank robbery Committed a rape Abused a child

Other offences Other offences may be reported at the therapist’s discretion, but he/she will have to deal with any legal consequences of doing so, e.g. claims for breach of confidentiality Therapists working with government agencies and organisations, e.g. the NHS or social services, must comply with statutory duties and agency policies Consider what to do in the light of the ethical framework – no easy decisions Seek legal advice

Dilemmas - Legal checklist Is this a criminal offence? Does compulsory disclosure apply? If yes, then comply with the law Is disclosure discretionary in law but a defensible disclosure? If yes, consider: nature, seriousness, risk, consequences, is disclosure necessary/advisable? If no, consider public interest, ethical issues, possible consequences of disclosure From Mitchels and Bond, 2010

Duty of Care and legal liability Relates to the ‘law of tort’ (civil liability) – negligence, recklessness. What is it? “persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused....” (House of Lords, 2000) What kind of harm? Negligence, battery (assault), trespass.

Actions which could result in legal challenges relating to Duty of Care and negligence Professional incompetence Inappropriate sexual contact Emotional or financial exploitation Bullying or disrespect Offers of friendship Inappropriate touch Inappropriate encounters with others at place of therapy Inappropriate self disclosures by therapists Giving and receiving gifts

What are the possible legal implications/necessary actions/consequences in the following situations (which law and/or concept would apply to each?): Your client tells you they are involved in a plan to bomb a Government Building next week Your client tells you they committed a murder a year ago Your client tells you they use illegal drugs regularly Your client tells you that they regularly shoplift small items from Asda You (the counsellor) have an affair with your client's partner Remember: compulsory disclosure, defensible disclosure, therapist's discretion, duty of care/negligence – consider which of these apply

Other relevant legal issues Notes and records – may be requested by courts in some circumstances Data Protection Act Professional indemnity insurance Public liability insurance (health and safety legislation) Business issues – premises, VAT, tax Contracts of employment Criminal Records Bureau checks Discrimination and equal opportunities. For example, Race Relations Act 1976, Disability Discrimination Acts 1995 and 2005 – e.g. service providers must make “reasonable provisions”.

BACP professional conduct procedure Many grievances from clients are dealt with this way rather than through legal procedures Complaints are heard through a Professional Conduct Hearing Covers professional Misconduct, Malpractice and Bringing the Profession into Disrepute Examples of recent cases include issues arising from counsellors suddenly ending their work with clients, dual relationships, professional boundaries, use of alcohol at work.

The importance of contracts and communications. A clear and concise written contract between the client and counsellor can: Protect the counsellor from legal challenges Make the client aware of boundaries and limitations e.g. to confidentiality Protect the relationship between counsellor and client – by maintaining trust

Questions for our visiting practitioner Individually (or in small groups), write down questions which you would like to ask our visiting speaker. It will be useful to include questions which can help you with the unit 2 assessment. Helen is senior counsellor at Lancaster and Morecambe college. I will e mail questions to Helen before her visit.