1. Ethical and Legal Issues in Counseling Practice COUN 540: Foundations Spring 2009

2. Tonight’s Goals Discuss how ethics and law guide and govern our professional behavior– similarities and differences Introduce ethical codes - ACA Code of Ethics Major ethical/legal issues we encounter in practice informed consent confidentiality duty to warn To introduce the concept of the Ethical Decision Making Model and explore its use

3. Ethics and Law Governing our Professional Practice LawEthics Created by legislature and courts Govern citizens (federal, county, state) Represent minimal standards Penalty  fines, jail Rooted in philosophy, created by professional associations Govern members of profession – guide practice Represent ideal standards Penalty  loss of license, professional sanctions

4. Criminal vs Civil Law Criminal  Go to Jail, associated professional sanctions Example: Sexual contact with client is a Felony 4 th Degree Felony 4 th Degree Civil  Monetary consequences, associated professional sanctions Malpractice door opens when it can be proven that the counselor had: Malpractice door opens when it can be proven that the counselor had: 1) A duty 2) That duty was breeched 3) The client experienced damage 4) It was the breech of duty that 4) It was the breech of duty that caused the damage caused the damage

5. When Questions of Law Arise Consider it to be a legal issue if… *lawyers are involved *the matter has come to court, *the counselor may be in danger of being accused of misconduct Avoid being impulsive take time to think before reacting (e.g. receipt of subpoena) Talk to a lawyer (American Counseling Association) when it is, or might be a legal issue to determine your next appropriate action

6. When Ethics and Law Collide H.1.b. Conflicts Between Ethics and Laws If ethical responsibilities conflict with law, regulations, or other governing legal authority, counselors make known their commitment to the ACA Code of Ethics and take steps to resolve the conflict. If the conflict cannot be resolved by such means, counselors may adhere to the requirements of law, regulations, or other governing legal authority. ACA Code of Ethics (2005)

7. ACA Code of Ethics Revised in 2005 Section A: The Counseling Relationship Section B: Confidentiality, Privileged Communication, Privacy Communication, Privacy Section C: Professional Responsibility Section D:Relationship with Other Professionals Section E:Evaluation, Assessment and Interpretation Interpretation Section F:Supervision, Training and Teaching Section G: Research and Publication Section H: Resolving Ethical Issues

8. Functions of Ethical Code First and most important – to safeguard welfare of client and society Define ethical conduct in a profession – to inform and educate members Define Standards of Practice – important in legal actions Create a means by which members are held accountable for actions – protecting public Offer a way to promote professional growth, best practice

9. Commonalities in Mental Health Ethical Codes *Priority placed on welfare of clients & society *Competency *Personal awareness of own values, biases *Prohibition on sexual involvement with clients *Research criteria to protect subject/client rights *Responsibility to protect confidentiality *Helping clients reach self-determined goals *Ongoing professional development *Obligation to confront colleagues demonstrating unethical, illegal, incompetent practice *High personal standards of integrity Kotter & Brown (1992)

10. Limitations of Ethical Codes Broad - The mental health field is so diverse, with counselors and client populations varying broadly in terms of role played…this leads to creations of codes that must be broad in scope to accommodate application in many different situations Changeable - Codes must adapt and change as new issues arise (e.g. HIV; technology) Clarity of Guidance - Guidelines provided by codes are not always clear and call for a systematic manner of decision making – they are not “cookbooks” for perfect decisions in every situation Conflicts between Codes - in some cases, conflicts between professional associations

11. Ethical and Legal Concerns: Major Areas of Focus Informed Consent Confidentiality Duty to Warn/Duty to Protect Record Keeping Technology Managed Care

12. Informed Consent An opportunity for building foundations for a truly collaborative and effective counseling relationship - defines the relationship Promotes idea of clients as informed partners in the counseling process – they know the rules and participate willingly As important with children as with adults Beginning and throughout the relationship – written and discussed

13. Confidentiality/Privacy The trusting foundation on which the counseling relationship is build Confidentiality versus Privilege Confidentiality versus Privilege Duty to protect private communication in the therapeutic relationship HIPPA rules have important impact Place where law and ethics may collide (e.g. mandatory reporting of child abuse)

14. Challenges in Confidentiality Subpoenas Counseling Minors Substance abuse Group/Family Counseling Offenders After Death of Client Technology

15. Duty to Warn Societal interest in protection may over-ride confidentiality duty to client Concept of vulnerable population Domestic violence laws vary from state to state re mandatory reporting – but when child/elder involved – line is crossed Past crimes usually not a duty though a client’s risk to others may trigger duty to warn AIDS/HIV ACA Code B.2.b.

16. Duty to Protect Threat of harm to self and threat of suicide raise affirmative duty Risk Assessment essential Children especially concerning. Case of Nicole Eisel brings duty to school setting - minor Other threats of self harm (e.g. cutting) End of life issues

17. Record Keeping Good record keeping part of Standard of Practice …know law and regulations inc. Health Information Protection and Portability Act (HIPPA) Wheeler and Bertrham (2008) identify four Purposes of Client Records *Clinical management *Legal implications for client *Protection of health info *Risk management

18. Technology Technological advances are changing how we define and go about the business of counseling…and introduce a new plate of potential challenges e.g. on-line counseling services electronic media electronic media

19. Managed Care Presents a number of issues relating to counseling practice which relate to potential for ethical challenges… *diagnosis dependent *session numbers limited *confidentiality concerns

20. Ethical Decision Making Counselors must have a systematic model which can be utilized to reach decisions Not just following the rules…real ethical decision making takes… Reflection & evaluation Consultation with colleagues Courage Best when client can be involved in the process

21. The Ethical Decision Making Model Seven Steps 1. Identify and describe the problem (legal, ethical, and professional) and potential issues involved 2. Refer to the ACA Code of Ethics – is there a fit? Consider law and regulation that may apply 3. Determine the nature and dimensions of the dilemma – consult with colleagues, literature review4. Identify possible courses of action 5. Consider potential consequences of each course of action and choose the best one course of action and choose the best one 6. Evaluate the selected course of action 7. Implement the course of action

22. Ethics vs Morality Morality is associated with a “personal belief system” – the basis by which we decide what is right and what is wrong Grounded in culture - arising from a social context, from the values we learn, the beliefs we have about living Differences within and between a reality – look out for those broad brushes Historical forces influence the moral judgments of the time e.g. perception of children and discipline

23. Ethical Reasoning The Five Moral Principles The Five Moral Principles…function as a true cornerstone of ethical reasoning and serve as guides when counselors face difficult questions regarding a course of action: of ethical reasoning and serve as guides when counselors face difficult questions regarding a course of action:AutonomyNonmaleficenceBeneficenceJusticeFidelity Used to evaluate the course of action we should take – note not unusual for there to be conflict between moral principles

24. Autonomy Respecting Clients’ Right to Independence Client’s right to drive her/his own bus…make own decisions Client’s independence, freedom to choose & direct one’s own actions – we avoid fostering dependency in counseling relationships Centered in respect for client’s values and culture Considerations of competence - decisions that are rational and solid –safe for self/others, throws a wrench Decision making involves consideration of impact of actions on others

25. Nonmaleficence To Cause No Harm A major concern in ethical decision making and a long held belief as the most important of the ethical principles – thank you Hippocrates Nonmaleficence = not causing harm to others. Avoid practices that have potential to harm Includes the concept of not harming self or acting in ways that would cause harm to others

26. Beneficence To Do Good Counselor's responsibility – duty - to promote and to contribute to the welfare of the client. Counselor's responsibility – duty - to promote and to contribute to the welfare of the client. Means to do good, to be proactive and also to prevent harm when possible (Forester-Miller & Rubenstein, 1992). First priority, do no harm, second priority is to do good – client should be better at end of relationship than at the beginning

27. Justice Fair and Nondiscriminatory Fair is not synonymous with the same… Quality of services; matters of access to service; fees; time allocation Involves examining the interests and needs of both the client and those involved and impacted by her/his actions Client needs considered in context to those of others The presence of stereotypes suggests absence of justice

28. Fidelity Loyalty & Honor to Commitments Made Creating a therapeutic climate in which trust can flourish makes client growth and progress possible Promises made in good faith and kept Obligations met