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CHAPTER 2
ETHICAL AND LEGAL ASPECTS OF COUNSELING
CHAPTER OVERVIEW
This chapter focuses on the ethical standards and legal aspects of counseling. The reasons for,
benefits of, and the limitations of ethical codes and legal codes are examined. Ethical decision making is explored with a special look at certain principles and procedures that counselors can follow to help them make ethically sound decisions. Furthermore, special counseling situations where ethical crises may arise are discussed, e.g., in schools and with families. Ways of dealing with unethical counselors also are included. The interface between the legal system and the counseling profession is covered as well. The issues of counselor liability are discussed, especially regarding the questions of client rights and records. Finally, the issue of counselors in the courtroom is highlighted along with a look at the different cultures in which attorneys and counselors live.
KEY TERMS, CONCEPTS, AND PEOPLE
ACA Code of Ethics
Administrative liability
Association for Spiritual, Ethical, and Religious Values in Counseling (ASERVIC)
Autonomy
Beneficence
Bogust v. Iverson
Buckley Amendment
Certification
Civil liability
Codes of ethics
Confidentiality
Criminal liability
Cyber counseling or webcounseling
Developmental stages of ethical reasoning
Dual or multiple relationships
Ethical principles
Ethical reasoning
Ethics
Family Educational Rights and Privacy Act (Buckley Amendment)
Fidelity
Five-stage developmental continuum of reasoning
Individual orientation
Individualized education plan (IEP)
Inspection
Institutional orientation
Iowa Law Review Note
Jaffee v. Redmond
Justice
Law
Law liability
Liability
Licensure
Limited license
Malpractice
Morality
Moral traces
NBCC certification
Nonmaleficence
Principle (conscience) orientation
Privacy
Privileged communication
Professional ethics
Publicity
Punishment orientation
Registration
Slippery slope effect
Societal orientation
Tarasoff v. Board of Regents of the University of California
Tort
Unethical behavior
Universality
Veracity
Weldon v. Virginia State Board of Psychologists Examiners
CHAPTER 2 – ETHICAL AND LEGAL ASPECTS OF COUNSELING
Definitions: Ethics, Morality, and Law
• Ethics – the standard that governs relationships between individuals, such as between
a counselor and his/her clients.
• Morality – the judgment or evaluation of an action. (shoulds, oughts, rights, wrongs)
• Law – the precise codification of governing standards that are established to ensure
legal and moral justice. Created by legislation, court decisions, tradition, and English
common law. Law dictates what is legal, not what is ethical. (Therefore, a behavior
may be unethical but still legal.)
Ethics and Counseling
• Professional counselors are concerned with ethics and values. Many treat ethical
complaints with the same degree of seriousness as lawsuits.
• Unethical behaviors in counseling include:
o Violation of confidentiality
o Exceeding one’s level of professional competence
o Negligent practice
o Claiming expertise one does not possess
o Imposing one’s values on a client
o Creating dependency in a client
o Sexual activity with a client
o Certain conflicts of interest, such as dual relationships (ex., being a counselor
to a client and serving as his/her tennis partner)
o Questionable financial arrangements, such as charging excessive fees
o Improper advertising
o Plagiarism
• Association for Spiritual, Ethical, and Religious Values in Counseling (ASERVIC)
under the ACA publish guideless for leaders in professional counseling organization
and publish a journal, Counseling and Values, containing articles on ethical situations.
Professional Codes of Ethics and Standards
• Reasons for Codes of Ethics
o Protect the profession from government
o Help control internal disagreements
o Protect practitioners from the public
• Development of Codes of Ethics for Counselors
o The first code of ethics was developed by ACA formally known as APGA
based on the APA code of ethics initiated by Donald Super and approved in
1961. The codes have been revised many times since.
o ACA’s latest ethics code is comprehensive in nature and a major sign that
counseling has developed into a mature discipline.
o ACA 2014 proposed six purposes for its code of ethics:
▪ Set for ethical obligations and provide guidance to help inform ethical
practice.
▪ Identify ethical considerations relevant to counselors and counselors-
in-training.
▪ Describe the principles that members of the association have in
common
▪ To provide an ethical guide to assist counselors in developing a proper
course of action that serves clients and establishes expectations of
conduct regarding the professional counselor
▪ Support the mission of ACA
▪ Serve as the foundation for processing inquiries and ethical complaints.
o ACA’s ethical standards are arranged under nine topical headings containing
material similar to other ethical codes. These codes are unique to the
counseling profession:
▪ Section A: counseling relationship
▪ Section B: confidentiality and privacy in counseling
▪ Section C: Professional responsibility
▪ Section D: Relationships with colleagues, employers, and employees
▪ Section E: Evaluation, assessment, and interpretation
▪ Section F: Supervision, training, and teaching
▪ Section G: Research and publications
▪ Section H: Distance counseling, technology, and social media
▪ Section I: Resolving ethical issues
• Limitations of Ethical Codes
o Codes are only guidelines based on experience and values of how counselors
should behave. They do not address probable professional dilemmas.
o Some of the limitations of any code of ethics include:
▪ Some issues cannot be resolved by a code of ethics
▪ Enforcing ethical codes is difficult.
▪ There may be conflicts within the standards delineated by the code.
▪ Some legal and ethical issues are not covered in codes.
▪ Ethical codes are historical documents. Therefore, what may be
acceptable practice at one time may be considered unethical later.
▪ Sometimes conflicts arise between ethical and legal codes.
▪ Ethical codes do not address cross-cultural issues.
▪ Ethical codes do not address every possible situation.
▪ There is often difficulty in bringing the interest of all parties involved
in an ethical dispute together systematically.
▪ Ethical codes are not proactive documents for helping counselors
decide what to do in new situations.
• Conflicts Within and Among Ethical Codes
o Potential dilemmas of standards
▪ Be able to differentiate ethical dilemmas from other types of dilemmas.
▪ Different ethical principles in a code may offer conflicting guidelines
about what to do in a given situation. For instance, confidentiality and
acting in the client’s best interest if s/he is going to harm someone else
or him/herself.
▪ Codes of ethics differ from one organization to another, such as APA
and ACA.
Making Ethical Decisions
• Sometimes counselors operate from personal ethical standards without consulting the
ethical guidelines. When faced with a dilemma, they may make a decision that may
unintentionally turn out to be unethical.
• A study conducted in New York found five types of ethical dilemmas most prevalent
among university counselors surveyed:
o Confidentiality (most difficult to resolve)
o Role conflict
o Counselor competence (most difficult to resolve)
o Conflicts with employer or institution
o Degree of dangerousness (least difficult to resolve)
• Ethical reasoning is the process of determining which ethical principles are involved
and then prioritizing them based on the professional requirements and beliefs.
• Several ethical principles relate to the activities and ethical choices of counselors:
o Beneficence (doing good and preventing harm),
o Nonmaleficence (not inflicting harm – current or future)
o Autonomy (respecting freedom of choice and self-determination)
o Justice (fairness), and
o Fidelity (faithfulness or honoring commitments)
• Other Guidelines for Acting Ethically
o Guidelines for assessing whether counselors act in ethically responsible ways.
▪ Personal and professional honesty, such as dealing with hidden
agendas.
▪ Acting in the best interest of clients.
▪ Acting without malice or personal gain.
▪ Justifying an action based on the current state of the profession
Educating Counselors in Ethical Decision Making
• Ethical decision making can be promoted by – graduate programs and continuing
education credit.
• Counselors reason through their behaviors with clients in a five-stage developmental
scale of reasoning:
o Punishment orientation – external social standards are the basis for judging
behavior. Punishment should follow a behavior.
o Institutional orientation – at this stage counselors believe in and abide by the
rules of the institutions for which they work. They do not question the rules.
o Societal orientation – counselors at this stage base their decisions on standards
set by society. The needs of society are always given priority over individual
needs.
o Individual orientation – the individual’s needs are prioritized over society’s
needs, even though the counselor is aware of the law.
o Principle (conscience) orientation – concern for the individual is most
important. Ethical decisions are based on internalized ethical standards.
• Group workers may sharpen their ethics by using case studies and Carkhuff’s three
goals model of helping: self-exploration, self-understanding, and action.
• Kitchener uses an integrated model of goals and components for an ethics education
curriculum based on research on the psychological processes underlying moral
behavior and current thinking in applied ethics. Her curriculum includes: sensitization
to ethical issues, improving ethical judgments, encouraging responsible ethical
actions, and tolerating decision making ambiguity
Ethics in Specific Counseling Situations
Ethical behavior is influenced by the attitudes in the setting in which one works, by
colleagues, and by the counselor’s task at hand. If practices in an institution are unethical the
counselor must either try to change the institution through educational or persuasive means or
find another job.
• School Counseling and Ethics
o The counselor should always show priority for the client first and the school
second. This may be difficulty when a school counselor is put into an
administrative position. School counselor should be familiar with the ethical
standards of the American School Counseling Association.
• Computers, Counseling, and Ethics
o Breech of client information is a possibility with transactions on a computer.
Ethical dilemmas are issues with cyber counseling or Webcounseling.
• Couple and Family Counseling and Ethics
o Because individuals in a family have different goals at times Thomas has
developed a framework for counselors, clients, and the counseling process: 1)
responsibility, 2) integrity, 3) commitment, 4) freedom of choice, 5)
empowerment, and 6) right to grieve.
• Other Counseling Settings and Ethics
o Counseling older adults – counselors must make ethical decisions regarding
the unique needs of the cognitive impairments, terminal illness, or victims of
abuse. Principle ethics may be used that focus on socially and historically
appropriate answers to: What shall I do? or, Is this action ethical? Virtue ethics
might be used which focus on the character traits of the counselor and
nonobligatory ideals to which professionals aspire.
o Multicultural counseling
o Managed care
o Diagnosis of client
o Counseling research – four main ethical issues must be resolved: 1) informed
consent, 2) coercion and deception, 3) confidentiality and privacy, and 4)
reporting the results.
Multiple Relationships
• From the debates in the 1970s on the ethical nature of counselor-client sexual
relations which concluded that this relation was unethical came the discussion about
nonsexual dual relationships. The conclusion of these discussions is that nonsexual
dual relationships should be avoided. No matter how harmless a dual relationship
seems, a conflict of interest almost always exists, and any professional counselor’s
judgment is likely to be affected. Counselor may lose their objectivity and clients may
be placed in a situation in which they cannot be assertive.
• As a basis of ethical behavior, counselors should remove themselves from socializing
or doing business with present or former clients, accepting gifts from them, or
entering into a counseling relationship with a close friend, family member, student,
lover, or employee.
• Although the principles underlying the ethics of multiple relationships seem clear,
implementing them is sometimes difficult and ins some situations even unavoidable.
Working with Counselors Who May Act Unethically
• “Slippery slope effect” – when working with someone who acts unethically, it is easy
to ignore a situation or condone the situation by rationalizing the behavior
• Barbara Herlihy suggests steps to take in working through potential ethical dilemmas:
o Identify the problem as objectively as possible and the counselor’s relationship
to it.
o Apply the current ACA Code of Ethics.
o Consider moral principles of the helping profession, such as beneficence,
justice, and autonomy; additionally, consultation with a colleague.
• Taking action: (be prepared for criticism from others)
o Confront the counselor in a caring context
o If confrontation does not work, file an ethical complaint with the ACA and/or
state licensure or national certification board. Complaint may be filed by
colleague or a client who believes s/he has been unethically treated.
o Counselors should use the following criteria for determining their comfort:
publicity, justice, moral traces (lingering doubt), and universality (Would you
recommend this course of actions to others?)
The Law and Counseling
• Legal refers to law or the state of being lawful.
• Law refers to a body of rules recognized by a state or community as binding on its
members.
• Counselors must rely on court decisions and statues that influence legal opinions
because there is no general body of law covering the helping professions.
o Duty to care – health providers’ legal obligation not to act negligently. The
legal opinion that determined the case of the 1993 Napa County, CA case
involving Gary Ramona who sued his daughter’s therapists, charging that by
implanting false memories of sexual abuse in her mind they had destroyed his
life. Ramona was awarded $475,000 after the jury found the therapists had
negligently reinforced false memories.
o In 1996 US Supreme Court decision Jaffe v. Redmond held that
communications between licensed psychotherapists and their patients are
privileged and do not have to be disclosed in cases held in federal court.
Precedence set regarding confidentiality between a master’s-level clinician
and her client.
o The Amicus Curiae Brief argued before the US Supreme Court in 1997 dealt
with mental health issues associated with “physician-assisted suicide.” ACA
joined with other mental health groups to protect the rights of counselors and
other helping specialties with aid-in-dying situations.
• The law is usually supportive of:
o Professional codes of ethics.
o Licensure or certification of counselors to ensure minimal standards of
practice.
o Allowing the counseling profession to police itself and govern counselors’
relations with their clients.
• The law overrides professional code of ethics when it is necessary to protect the
public and safety or welfare of others. Confidentiality must be breeched in these
situations in order to disclose information necessary to prevent harm. In these cases,
the counselor has the duty to warn potential victims about potential harm.
Legal Recognition of Counseling
• Counseling has gained professional recognition through legal situations.
• In 1960 a judge ruled in the case of Bogust v. Iverson that a counselor with a doctoral
degree could not be held liable for the suicide of one of his clients because counselors
were “mere teacher” who received training in a department of education. Therefore,
counseling was not legally recognized as a practicing profession.
• In 1971 in an Iowa Law Review Note, counselors were legally recognized as
professionals who provided personal, as well as, vocational educational counseling.
• In 1974 in Weldon v. Virginia State Board of Psychologists Examiners counseling
was rendered a profession distinct from psychology. The US House of Representative
refined the definition of counseling and recognized the profession in H. R. 3270 (94th
Congress, 1976) stating that counseling is “the process through which a trained
counselor assists an individual or group to make satisfactory and responsible decision
concerning personal, educational and career development.”
Legal Aspects of the Counseling Relationship
• Counselors must follow specific legal guidelines in working with certain populations.
o PL 94-142 (the Education of All Handicapped Children Act of 1975) provides
that schools must make provisions for the free, appropriate public education of
all children in the least restrictive environment possible.
▪ This law advocates that a child under this definition must be provided
an IEP (individual education plan) as well as the provision for due-
process procedures. Also disabled children must be identified and
record kept on each child’s progress.
o Child abuse laws provide legal obligation for counselors to report suspected
cases of abuse to proper authorities.
o Legal obligations are defined under the Family Educational Rights and
Privacy Act (FERPA) of 1974, known as the Buckley Amendment. This statute
gives students access to educational records kept by educational institutions.
The Buckley Amendment must be followed by higher educational institution.
For instance, students in college must give their permission to college advisors
and/or administrators to disclose any educational or judiciary information to
others including parents.
• Legal concerns about information sharing have been defined into groups:
confidentiality, privacy, and privileged communication.
o Confidentiality – a promise to clients that information revealed during
counseling will not be shared with others without their permission.
o Privacy – an individual’s right to choose the time, circumstances, and extent to
which s/he wishes to share or withhold personal information. If a client
believes s/he has been coerced into sharing information they would not
normally disclose may seek legal help against a counselor.
o Privileged communication – regulates privacy protection and confidentiality of
individuals in counseling (not groups or family) by protection of clients from
having their confidential communications disclosed in court without their
permission. Most states recognize and protect privileged communication
except in nine categories:
▪ In cases of dispute between counselor and client
▪ When a client raises the issue of mental condition in legal proceedings
(for instance, pleading temporary insanity)
▪ When a client’s condition poses a danger to self or others
▪ In cases of child abuse or neglect
▪ When the counselor has knowledge that the client is contemplating
commission of a crime
▪ During court ordered psychological evaluations
▪ For purposes of involuntary hospitalization
▪ When the counselor has knowledge that a client has been a victim of a
crime
▪ In cases of harm to vulnerable adults
• Laws vary from state to state. Know the laws of the state in which you are practicing.
• The landmark case of confidentiality is Tarasoff v. Board of Regents of the University
of California (1976):
o Prosenjit Poddar, a student at the Berkeley campus of the University of
California, was a voluntary outpatient at the student health services. He
informed the psychologist counseling him that he intended to kill his former
girlfriend, Tatiana Tarasoff, when she arrived by plane to the area of the
campus.
o The psychologist notified the campus police, who detained and questioned the
student about his threat. The student denied any intention, acted rationally, and
was released.
o Podder refused further treatment by the psychologist, and no additional steps
were taken to stop him from his intended action.
o Tarasoff was killed by Poddar two months later. Her parents sued the Regents
of the University of California for failing to notify the intended victim of a
threat against their daughter.
o The California Supreme court ruled in favor of Tarasoff’s parents, holding the
therapist responsible due to the therapist’s duty to protect the public that
overrides any obligation to maintain client confidentiality.
Civil and Criminal Liability
• Liability in counseling involves issues concerned with whether counselors have
caused harm to clients.
o Civil liability – a person can be sued for acting inappropriately toward another
person or for failing to act when there is a recognized duty to do so.
▪ Based on torts, “a wrong [against a person, property, or someone’s
reputation intentional or unintentional] that legal action is designed to
set right”.
▪ Civil liability with counselors is most prevalent:
• Malpractice in particular situations (birth control, abortion,
prescribing and administering drugs, treatment)
• Illegal search
• Defamation
• Invasion of privacy
• Breach of contract
o Criminal liability – when a counselor works with a client in a way the law
does not allow.
▪ Risk of criminal liability is most possible in three situations:
• Accessory to a crime
• Civil disobedience
• Contribution to the delinquency of a minor
• Malpractice in counseling is defined as harm to a client resulting from professional
negligence (carelessness).
• Negligence is defined as the inattention to acceptable professional standards.
• Counselor should protect themselves from malpractice:
o Follow professional codes of ethics
o Follow normal practice standards
o Carry liability insurance
o An excellent book of helps of malpractice is Avoiding Counselor Malpractice.
Legal Issues Involved When Counseling Minors
• Minors – children under the age of 18.
• Working with minors in non-school settings involves legal and ethical issues different
from those in an educational environment.
• Minors can enter into a contract for treatment in three ways
o By parental consent
o Involuntarily at a parent’s insistence – Requires parental consent.
o By the order of the juvenile court – Does not require parental consent, but
parents or guardians should be informed.
• Failure to obtain [custodial] parental consent puts the counselor at risk of being sued
for battery, failure to gain consent, and child enticement.
• Suggestions in working with minors:
o Be familiar with state statutes regarding privileged communication
o Clarify your policies about confidentiality with the child and parent(s) at the
beginning of the therapeutic relationship and ask for their cooperation. Provide
a written statement of these policies that everyone signs.
o Keep accurate and objective records of all contacts.
o Keep above the minimum professional liability coverage.
o When in doubt ask a colleague and have professional legal help available.
Client Rights and Records
• There are two main types of client rights:
o Implied rights are linked to substantive due process. When a rule is made that
limit a person’s constitutional rights, s/he has been denied substantive due
process.
o Explicit rights focus on procedural due process (the steps necessary to initiate
or complete an action when a rule is broken). When a rule is broken and the
person is not informed about how to remedy the matter.
• Clients have the right to know what to do when his/her rights have been violated.
• Client records are legally protected except under special circumstances.
o An individual has the right legally to inspect his/her record, such as with the
Buckley Amendment.
o Some cases permit third parties to have access to student information without
the consent of the student or parent.
o Counselors are legally required to protect clients of all ages by keeping
records under lock and key, separate from any required business records.
Disclosure of information may not be performed without a client’s written
permission.
▪ Use of a release-of-information form drawn up by an attorney is a good
practice.
▪ Information not obtained first-hand should not be released.
• Information contained in a client’s record includes all information about the client
necessary for his/her treatment. Six categories of documents are usually included:
o Identifying or intake information: name, address, telephone number(s), date of
birth, sex, occupation, etc.
o Assessment information: psychological evaluation(s), social/family history,
health history, etc.
o Treatment plan: presenting problem, plan of action, steps to be taken to reach
targeted behavior, etc.
o Case notes: such as, the documentation of individual sessions progress toward
goals.
o Termination summary: outcome of treatment, final diagnosis (if any), after-
care plan, etc.
o Other data; client’s signed consent for treatment, copies of correspondence,
notation about rationale for any unusual client interventions, administrative
problems, etc.
• Check state legal codes for record keeping. Third-party reimbursement sometimes
requires progress in terms of a treatment plan and diagnosis.
• Never give confidential information about a client over the phone.
• Do not discuss counseling cases in public.
