1. When Law and Ethics Collide: Navigating Legal and Ethical Responsibilities Mary A. Hermann, J.D., Ph.D. Virginia Commonwealth University

2. Mary A. Hermann, J.D., Ph.D. Ph.D. in Counselor Education from the University of New Orleans Ph.D. in Counselor Education from the University of New Orleans J.D. from Loyola School of Law J.D. from Loyola School of Law 15 Years as a Counselor Educator (VCU, MSU) 15 Years as a Counselor Educator (VCU, MSU) 15 Years Teaching/Counseling Experience in Middle/High Schools in New Orleans 15 Years Teaching/Counseling Experience in Middle/High Schools in New Orleans LPC, NCC, Certified School Counselor LPC, NCC, Certified School Counselor Licensed Attorney (inactive status) Licensed Attorney (inactive status)

3. Mary A. Hermann, J.D., Ph.D. Member, 2016 ASCA Ethical Standards Revision Committee Member, 2016 ASCA Ethical Standards Revision Committee Member, ACA Ethics Revision Task Force (2014 ACA Code) Member, ACA Ethics Revision Task Force (2014 ACA Code) Former Member, ACA Ethics Committee Former Member, ACA Ethics Committee Former Co-chair, ASCA Ethics Committee Former Co-chair, ASCA Ethics Committee

4. Ethics and Law Ethics Ethics Standards established by professions Standards established by professions Enforced by professional organizations and licensure boards Enforced by professional organizations and licensure boards Law Law Established by legislatures and courts Established by legislatures and courts Enforced by courts Enforced by courts

5. Legal and Ethical Responsibilities Guiding Principles Legal Responsibility Legal Responsibility Act reasonably. Act reasonably. In loco parentis doctrine (schools) In loco parentis doctrine (schools) Follow policies (or change them) Follow policies (or change them) Follow legal guidelines. Follow legal guidelines. Statutes (e.g., child abuse reporting) Statutes (e.g., child abuse reporting) Case law Case law Binding case law Binding case law Persuasive case law (Tarasoff, Eisel) Persuasive case law (Tarasoff, Eisel) Ethical Responsibility Ethical Responsibility Do what is in the best interest of your client. Do what is in the best interest of your client.

6. Managing Legal and Ethical Obligations 2014 ACA Ethics Revision Task Force addressed the interplay between law and ethics 2014 ACA Ethics Revision Task Force addressed the interplay between law and ethics “A breach of the standards and principles provided herein does not necessarily constitute legal liability or violation of the law; such action is established in legal or judicial proceedings” (ACA Code, 2014, Preamble). “A breach of the standards and principles provided herein does not necessarily constitute legal liability or violation of the law; such action is established in legal or judicial proceedings” (ACA Code, 2014, Preamble). Counselors are expected to engage in an ethical decision-making process. Counselors are expected to engage in an ethical decision-making process.

7. Ethical Decision-Making Models Apply ethical codes Apply ethical codes Apply core professional values Apply core professional values Apply moral principles Apply moral principles Honor spirit of the code as well as standards Honor spirit of the code as well as standards Risks and benefits of potential actions Risks and benefits of potential actions Consult Consult Consider legal standards Consider legal standards Consider best interest of the client Consider best interest of the client

8. Ethical Decision-Making Models Core professional values of counseling profession included in the ACA Code (2014) Preamble: Core professional values of counseling profession included in the ACA Code (2014) Preamble: Enhancing human development throughout the lifespan Enhancing human development throughout the lifespan Honoring diversity/embracing a multicultural approach Honoring diversity/embracing a multicultural approach Promoting social justice Promoting social justice Protecting the integrity of the client-counselor relationship Protecting the integrity of the client-counselor relationship Practicing in a competent and ethical manner Practicing in a competent and ethical manner

9. Ethical Decision-Making Models Moral principles in the ACA Code (2014, Preamble): Moral principles in the ACA Code (2014, Preamble): Autonomy: Fostering the right to control the direction of ones’ life. Autonomy: Fostering the right to control the direction of ones’ life. Nonmaleficence: Avoiding actions that cause harm. Nonmaleficence: Avoiding actions that cause harm. Beneficence: Working for the good of the individual and society by promoting mental health and wellbeing. Beneficence: Working for the good of the individual and society by promoting mental health and wellbeing. Justice: Treating individuals equitably and fostering fairness and equality. Justice: Treating individuals equitably and fostering fairness and equality. Fidelity: Honoring commitments and keeping promises, including fulfilling one’s responsibilities of trust in professional relationships. Fidelity: Honoring commitments and keeping promises, including fulfilling one’s responsibilities of trust in professional relationships. Veracity: Dealing truthfully with individuals with whom counselors come into professional contact. Veracity: Dealing truthfully with individuals with whom counselors come into professional contact. Sometimes principles conflict. Sometimes principles conflict.

10. Ethical Decision-Making Models “No specific ethical decision-making model is always most effective, so counselors are expected to use a credible model of decision making that can bear public scrutiny of its application” (ACA Code, 2014, Preamble). “No specific ethical decision-making model is always most effective, so counselors are expected to use a credible model of decision making that can bear public scrutiny of its application” (ACA Code, 2014, Preamble). “Through a chosen ethical decision-making process and evaluation of the context of the situation, counselors work collaboratively with clients to make decisions that promote clients’ growth and development” (ACA Code, 2014, Preamble). “Through a chosen ethical decision-making process and evaluation of the context of the situation, counselors work collaboratively with clients to make decisions that promote clients’ growth and development” (ACA Code, 2014, Preamble).

11. Model in ASCA Standards (2010) Solutions to Ethical Problems in Schools (STEPS) (Stone, 2001) Solutions to Ethical Problems in Schools (STEPS) (Stone, 2001) 1. Define the problem emotionally and intellectually. 1. Define the problem emotionally and intellectually. 2. Apply the ASCA Ethical Standards and the law. 2. Apply the ASCA Ethical Standards and the law. 3. Consider the student’s chronological and developmental levels. 3. Consider the student’s chronological and developmental levels. 4. Consider the setting, parental rights and minors’ rights. 4. Consider the setting, parental rights and minors’ rights. 5. Apply the moral principles. 5. Apply the moral principles. 6. Determine your potential courses of action and their consequences. 6. Determine your potential courses of action and their consequences.

12. Model in ASCA Standards (2010) Solutions to Ethical Problems in Schools (STEPS) (Stone, 2001) (cont.) Solutions to Ethical Problems in Schools (STEPS) (Stone, 2001) (cont.) 7. Evaluate the selected action. 7. Evaluate the selected action. 8. Consult. 8. Consult. 9. Implement the course of action. 9. Implement the course of action. Other considerations may include Other considerations may include Consider the spirit of the code(s). Consider the spirit of the code(s). Do what is in the best interest of the client. Do what is in the best interest of the client.

13. Confidentiality Most collisions of law and ethics involve confidentiality. Most collisions of law and ethics involve confidentiality. “Trust is the cornerstone of the counseling relationship, and counselors have the responsibility to respect and safeguard the client’s right to privacy and confidentiality” “Trust is the cornerstone of the counseling relationship, and counselors have the responsibility to respect and safeguard the client’s right to privacy and confidentiality” (ACA Code, 2014, Section A Introduction). (ACA Code, 2014, Section A Introduction). Courts recognize this (e.g., Jaffee case). Courts recognize this (e.g., Jaffee case). Privileged Communication statutes support this. Privileged Communication statutes support this.

14. Confidentiality Ethics Revision Task Force Took Steps to minimize conflicts between law and ethics Ethics Revision Task Force Took Steps to minimize conflicts between law and ethics Contagious, life-threatening diseases -- counselors “may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease” (ACA Code, 2014, §B.2.c., emphasis added). Contagious, life-threatening diseases -- counselors “may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease” (ACA Code, 2014, §B.2.c., emphasis added). Assess intent of clients to engage in harmful behavior and inform third parties. Assess intent of clients to engage in harmful behavior and inform third parties. Adhere to relevant state laws. Adhere to relevant state laws.

15. Confidentiality Ethics Revision Task Force Took Steps to minimize conflicts between law and ethics (cont.) Ethics Revision Task Force Took Steps to minimize conflicts between law and ethics (cont.) End-of-life decisions – Counselors “have the option to maintain confidentiality, depending on applicable laws and specific circumstances” (ACA Code, 2014, §B.2.b.). End-of-life decisions – Counselors “have the option to maintain confidentiality, depending on applicable laws and specific circumstances” (ACA Code, 2014, §B.2.b.). Consult counseling professionals and/or lawyers. Consult counseling professionals and/or lawyers.

16. Confidentiality The ACA Code (2014) reflects laws and acknowledges the legal system. The ACA Code (2014) reflects laws and acknowledges the legal system. Confidentiality does not apply in instances of serious and foreseeable harm to self or others. Confidentiality does not apply in instances of serious and foreseeable harm to self or others. Consult if in doubt. Consult if in doubt. Legal requirements may demand information be revealed. Legal requirements may demand information be revealed. Consult if in doubt. Consult if in doubt. Take steps to prohibit or limit disclosure. Take steps to prohibit or limit disclosure.

17. Confidentiality Right to confidentiality belongs to client. Right to confidentiality belongs to client. If the client is a minor, as a general rule, legally this right belongs to the parent. If the client is a minor, as a general rule, legally this right belongs to the parent. Conflict between law and ethics Conflict between law and ethics Primary ethical obligation is to the minor client. Primary ethical obligation is to the minor client. Legally, parents have rights. Legally, parents have rights. You can’t guarantee child confidentiality. You can’t guarantee child confidentiality.

18. Confidentiality and Minors Key Points Key Points Young children may not be too concerned about confidentiality. Young children may not be too concerned about confidentiality. Adolescents may be very concerned about confidentiality. Adolescents may be very concerned about confidentiality. Minor clients might share information hoping you will tell parents or help them in other ways. Minor clients might share information hoping you will tell parents or help them in other ways.

19. Confidentiality and Minors The ACA Code (2014) recognizes Support Network Involvement. The ACA Code (2014) recognizes Support Network Involvement. “Counselors recognize that support networks hold various meanings in the lives of clients and consider enlisting the support, understanding, and involvement of others (e.g., religious/spiritual/ community leaders, family members, friends) as positive resources, when appropriate, with client consent” (§A.1.d.). “Counselors recognize that support networks hold various meanings in the lives of clients and consider enlisting the support, understanding, and involvement of others (e.g., religious/spiritual/ community leaders, family members, friends) as positive resources, when appropriate, with client consent” (§A.1.d.).

20. Confidentiality and Minors in Schools 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” (ASCA Ethical Standards, 2010, §A.2.d.). 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” (ASCA Ethical Standards, 2010, §A.2.d.).

21. Confidentiality and Minors in Schools School counselors explain limits to confidentiality to students, parents, teachers, administrators through classroom lessons, student handbook, school counseling brochures, school website and communication with individual students (ASCA, 2010, §A.2.b.). School counselors explain limits to confidentiality to students, parents, teachers, administrators through classroom lessons, student handbook, school counseling brochures, school website and communication with individual students (ASCA, 2010, §A.2.b.).

22. Confidentiality and Minors in Schools In terms of group counseling, school counselors “recognize that best practice is to notify the parents/guardians of children participating in small groups” (ASCA, 2010, §A.6.b.). In terms of group counseling, school counselors “recognize that best practice is to notify the parents/guardians of children participating in small groups” (ASCA, 2010, §A.6.b.).

23. Confidentiality and Minors in Schools “Keep information confidential unless legal requirements demand that confidential information be revealed or breach is required to prevent serious and foreseeable harm to the student” (ASCA, 2010, §A.2.c.). “Keep information confidential unless legal requirements demand that confidential information be revealed or breach is required to prevent serious and foreseeable harm to the student” (ASCA, 2010, §A.2.c.). Serious and foreseeable harm is further defined by “students’ developmental and chronological age, the setting, parental rights and the nature of the danger” (§A.2.c.). Serious and foreseeable harm is further defined by “students’ developmental and chronological age, the setting, parental rights and the nature of the danger” (§A.2.c.). Consult. Consult.

24. Confidentiality and Minors in Schools School counselors collaborate with faculty and administration and “carefully filter confidential information to give these allies what they ‘need to know’ in order to advantage the student” School counselors collaborate with faculty and administration and “carefully filter confidential information to give these allies what they ‘need to know’ in order to advantage the student” (ASCA, 2010, §C.2.e.). (ASCA, 2010, §C.2.e.). Consult regarding ‘need to know’. Consult regarding ‘need to know’.

25. Confidentiality and Minors Best to establish before counseling Best to establish before counseling If a parent wants to know information gained in counseling sessions If a parent wants to know information gained in counseling sessions Talk to the client Talk to the client If the client says no, talk to the parent about implications of breaching confidentiality If the client says no, talk to the parent about implications of breaching confidentiality Assure parent that if danger exists, the parent will be told immediately Assure parent that if danger exists, the parent will be told immediately Joint session/Disclose/Refuse to Disclose Joint session/Disclose/Refuse to Disclose

26. Confidentiality and Minors Pregnant minor Pregnant minor Danger? Danger? Parent’s right to know? Parent’s right to know? Abortion Abortion School Counselor case example School Counselor case example How do you plan to take care of a baby? (Construed by teen as encouraging abortion) How do you plan to take care of a baby? (Construed by teen as encouraging abortion)

27. When Law and Ethics Collide Conflicts between law and ethics (ACA Code, 2014, §I.1.c) Conflicts between law and ethics (ACA Code, 2014, §I.1.c) Counselors make known their commitment to the ACA Code of Ethics. Counselors make known their commitment to the ACA Code of Ethics. Take steps to resolve the conflict. Take steps to resolve the conflict. Act in the best interest of the client. Act in the best interest of the client. Code also provides that counselors may adhere to the law or regulations. Code also provides that counselors may adhere to the law or regulations.

28. Managing Legal and Ethical Issues Consult colleagues and supervisors on clinical issues. Consult colleagues and supervisors on clinical issues. Obtain legal advice on legal issues. Obtain legal advice on legal issues. Keep current on legal and ethical issues (e.g., read professional literature and attend workshops on legal, ethical, and clinical issues). Keep current on legal and ethical issues (e.g., read professional literature and attend workshops on legal, ethical, and clinical issues). Child abuse reporting statute Child abuse reporting statute Danger to self or others legislation/court cases Danger to self or others legislation/court cases Always maintain professional liability insurance. Always maintain professional liability insurance.