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Ethical and Legal Aspects in Counseling



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    Ethical decision making while necessary, can at times be challenging. This is particularly true when working with clients that have different values and worldviews. Ethical issues seldom have an easy answer, and often counselors must seek help from more experienced and knowledgeable professionals, but this is not a guarantee that the desired outcome will be achieved. The ethical aspects of counseling are based on a system of rules which have been created for a specific group of people or field of work, and were developed for the purpose of setting the standards of conduct and behavior that is to be used by these professionals.

    Moral principles and virtue are the root foundations on which the ethics codes were formed, and they are for the protection of both the counselor and the client. The legal aspects in counseling are usually the result of unethical behavior, or a perceived misconduct, and counselors can find themselves on trial for malpractice, or unethical behavior practice. There may be times when there are legal issues between the ethics codes and federal and/or state statutes, and even with one’s employer’s policies; and counselors are sometimes required to appear in court as witnesses in litigation cases.

    This paper will examine both ethical and legal issues that can affect both counselors and their clients, both in general and specialized areas of counseling. Ethical and Legal Aspects in Counseling The first standard in the ACA’s (1995) Code of Ethics reads “the primary responsibility of counselors is to respect the dignity and promote the welfare of clients [italics added]” (p. 2). This is also the same in the current and revised version of the ACA code of ethics (2005).

    The AACC code of ethics first standard ES1-100 reads “First, Do No Harm [italics added]” (p. 6). This is the first ethical standard in each code of ethics because it is the principle framework around which all others are built, valuing and respecting the client(s) at all times. When facing ethical dilemmas, counselors should utilize a carefully developed decision-making process, in order to maintain the highest professional standards for the client and for the counseling profession.

    Because there are boundaries and limitations to a counselor’s expertise and knowledge, it is often necessary to seek the help and/or advice of other professionals with experience and competence in areas of ethical dilemma and challenge. Counselors are however, individually accountable for their actions, as they relate to their ethical, moral, legal, and professional responsibility to their clients. This being said, it never hurts to bring several opinions and/or outcome options to the decision making process in a dilemma.

    Christian counselors can face challenges in ethical matters when they impose their personal views and beliefs on their clients, or are unable to accept certain behaviors in them. Homosexuality, promiscuity, abortion, extra-marital affairs, spirituality and theological or denominational differences are a few areas that can present challenges for the counselor. Spirituality in Counseling Research indicates that approximately 75% of Americans claim that religion and spirituality are important to them (University of Pennsylvania, 2003), and that 95% believe in God or a Higher Power (Gallup & Lindsay, 1999).

    So there can be no surprise that clients are seeking to address spiritual concerns and issues in their counseling; and clients expect their counselor to address and treat their spiritual concerns (Sperry, 2003). Spirituality is the inward activity of growth and maturation that happens in each of us (Artress, 1995. p. 15). However, many counselors avoid the area of spirituality because of the ethics risks and considerations.

    Stifoss-Hanssen (1999) argued that counselors and psychotherapists risk violating the limits of their professional competence when attempting to deal with spirituality, because matters of God fall into the realm of religion, and matters of religion should remain with clergy and theologians, not therapists. Richards and Bergin (1997) also discussed potential ethical concerns including religious and professional dual relationships, shifting religious authority, imposing religious values on clients, violating professional boundaries, practicing utside the boundaries of professional competence, becoming caught up in superstition, and trivializing the sacred. Tan (1994) further warned of the ethical risks of neglecting to provide the client with adequate information regarding therapy, focusing largely on religious goals rather than therapeutic goals, and thus obtaining third-party reimbursement inappropriately, quarrelling over doctrinal issues rather than clarifying them, and using only spiritual interventions for problems that may require medicinal or psychological treatments.

    The ethics of spirituality in counseling primarily lie with the counselor’s openness to discussions regarding values and beliefs different than one’s own, and counselors who have rigid ideas about spirituality may hinder counseling progress (Steen, Engels & Thweatt, 2006). Counselors are expected to empathize, attempt to understand the client’s perspective, accept differences between the counselor and client in beliefs and values, and facilitate the personal development of the client’s spirituality and growth, regardless of the counselor’s personal views (Corey et al. 2003; Guinee & Tracey, 1997; Holden, 1996; Miller, 1999; Walsh, 1999; Watts, 2001; Zinnbauer & Pargament, 2000), and to the extent that a client’s spiritual and religious beliefs and values are pertinent to the client’s issues, they deserve the same respectful, ethical, and skillful attention as any other personal belief or value (Kelly, 1995). Prayer in Counseling Prayer is the simple act of turning our mind and heart to the sacred (Ameling, 2000, p. 42). It is an act of will in which we focus our concentration and open up to our inner depths (Artress, 1995).

    The growing interest and research on the relationship between religion, spirituality and health has encouraged some counselors to consider how and when to include religious and spiritual resources, like prayer, in counseling (Richards & Bergin, 1997). After reviewing research and polls, Weld and Ericksen (2007), concluded that both mental health counselors and the general population place high value on spirituality and prayer, and further conceptualize them as an important part of multicultural sensitivity. They further believe that a thorough assessment should be onducted in order to understand the importance of these issues to the client, as well as to determine if they are knowledgeable enough to be effective in helping the client to grow in these areas. Because prayer can be used as a therapy intervention, Weld and Eriksen emphasize the importance of exploring the ethical implications, as well as the need for the counselor to explore their own values in order to prevent imposing them onto their clients, and to help them understand the normative and harmful aspects of spirituality as they relate to the client personally.

    In the mainstream psychotherapeutic world, the use of prayer in counseling and psychotherapy, have been viewed with suspicion and wariness, rather than being embraced as an agent of change and support (Gubi, 2002). The use of prayer in counseling can produce ethical tensions and confusion that the counselor needs to be aware of, primarily relating to the effects that prayer might have on the counseling process or the dynamics within the process.

    Recent research, however, is pointing to the value of religion, particularly prayer, in the role of healing and supporting mental health (Rossiter-Thornton, 2002). There are many ways to incorporate prayer into the counseling session, but one must be respectful of boundaries and guidelines. The important first step is to see this approach as a significant activity in the healing process and to work with it in whatever way seems most appropriate (LaTorre, 2004).

    A wise healer uses what works (Dossey, 1993), and there can be no denying the power of prayer. Working with Minors There are many ethical and legal aspects when working with minors. In addition to counselor competence, there are ethical issues that consistently emerge when one considers children as clients: * A minors’ ability to give informed consent to treatment * their legal ability to enter into the contractual relationship * confidentiality * Child-abuse reporting (DeKraai & Sales, 1991; Myers, 1982).

    The recognition of basic rights for children has created a dilemma that involves a complex balancing act between three major social systems: * the state, with its interest in maintaining social stability and protecting the safety and rights of its citizens, including children * the parent or family, whose interest has been the maintenance of family autonomy and freedom to raise children without interference from the state * the minor child, whose vested interest has been self protection from perceived harm, preservation of privacy, and maintenance of personal dignity (Croxton, Churchill, & Fellin, 1988).

    The fact that a counselor is effective in working with adults in no way insures that they will be effective when working with minors, or vise versa. Counselors need to acquire and develop the unique knowledge and skills of specialized areas that can make them proficient in working with children. Some good examples of these areas with children could include attention deficit disorder (ADD), attention deficit/hyperactivity disorder (ADHD), reactive attachment disorder (RAD), and separation anxiety disorders (SAD).

    Therefore, education in child psychopathology and child counseling is essential for those who desire to work with children. Age is also a major consideration when working with minors, as this will also have a significant impact in determining how to work most effectively with that child, and as such it is extremely imperative that counselors have a thorough understanding of theories in child and adolescent development (Darden, Gazda, & Ginter, 1996).

    Some examples of these theories include: * Erikson’s ego identity development * Freud’s psychosexual development * Kohlberg’s moral development, and * Piaget’s cognitive development. A good understanding of these developmental theories is critical to being effective when working with children. When determining their plan of action, a counselor must design their interventions around the child’s level of understanding and level of development.

    The ACA Code (1995) Preamble states that “members are dedicated to the enhancement of human development throughout the life span” and even though “developmental stages” are not specifically mentioned, any practicing child counselor that has not studied child and adolescent development is placing themselves in legal danger for being unethical. The ACA (1995) Code explicitly and consistently stresses that Counselors practice only within the boundaries of their competence, as determined by their education, training, experience and professional credentials.

    Counselors will demonstrate a commitment to gain knowledge, personal awareness, sensitivity and skills pertinent to working with a diverse client population (C. 2. a). Confidentiality Confidentiality is one of the most difficult ethical dilemmas for counselors that work with minors; primarily when determining what can and cannot be shared with parents or legal guardians, because parents have a legal right to all records obtained as a result of examination, evaluation, and treatment of a minor.

    There have been four positions identified regarding confidentiality with minors and these include: * complete confidentiality, with the counselor disclosing nothing of the treatment to the parents * limited confidentiality, which requires the minor to waive, in advance, the right to know what will be revealed to the parent or guardian * informed forced consent, which occurs when the child is informed before disclosure is made to the parents but the child has no say in what is disclosed * no guarantee of confidentiality is made to the child (Hendrix, 1991)

    Confidentiality issues with minors can place counselors in a difficult dsituation. On the one hand should the counselor choose to maintain complete confidentiality in a situation where parental consent is necessary, they risk facing legal reprisals from the parents, and on the other hand, any of the other positions might mean that the minor may not seek treatment when they need it, and/or may terminate it once they are informed about the information their parents have a right to know.

    Often there is no easy answer, and ethical guidelines can prove less than helpful, as potentially they can be at odds with the law, thus requiring the counselor to choose between doing what is ethically correct and/or doing what is legally correct. For example: should the counselor choose to inform the parent, the counselor obeys the law, but ethically betrays their professional responsibility to the client, and by withholding information from the parent, upholding the ethical responsibility to the client, the counselor may be breaking the law.

    A good policy whenever possible is to involve the parents in the initial meeting, and come to a clear and mutual agreement about what information will be provided to them, and have it written into a contract with all parties signatures attached. This sets the boundaries and establishes a bond of trust, and allows for the sharing of information without fear from the minor, and for the counselor offers an effective form of self protection.

    Duty to Warn Like confidentiality, duty to warn is an important ethical and legal responsibility. In most states, counselors are liable for failure to warn or protect a third party if a specific threat is made to a specific person with intent to carry out that threat (including those made by minors). This limitation should also be discussed in the first meeting, and part of the contract signed by all parties, including the minor.

    Minors need to know that they risk breaching confidentiality when they make threats of harm to themselves or someone else. Informed Consent Informed consent is a legal contractual agreement, and it signifies the formal permission of the client for treatment to be initiated. It must be given voluntarily although with minors, it can be at the parents’ insistence, although the minor is involuntary, so long as the parents consent. Juvenile courts can also order treatment where the minor remains involuntary.

    All parties must possess sufficient knowledge of the treatment, its consequences, expected outcomes, and any implications with regards to the choices that are being suggested. The ACA (1995) Code specifically addresses minors and consent and states that when counseling clients who are minors or individuals who are unable to give voluntary, informed consent, parents or guardians may be included in the counseling process as appropriate. Counselors must act in the best interests of the client and take measures to safeguard confidentiality. 13. 3, Minor or Incompetent Clients). Counselors place themselves at risk for being sued when parental informed consent is not obtained prior to beginning treatment with a minor (Myers, 1982), but there can be instances where parental consent is not required, one example being court ordered treatment.

    The American Bar Association (ABA, 1980) does recommend however, that parents be informed of court ordered treatment as soon as possible. Emancipation and life hreatening emergency situations can also be exceptions that may protect the counselor from being sued. An emancipated minor is a person under the age of 18 who “is living separately from parents and is managing his or her own financial affairs” (ABA, 1980, p. 66). Other exceptions in some states may include minors in treatment for dangerous drugs or narcotic use, sexually transmitted diseases, pregnancy and/or birth control counseling, and an examination following an alleged sexual assault when the minor is at least 12 years of age.

    When working with a minor whose parents are divorced parents, it is important to obtain the consent of the custodial parent, as malpractice suits have been brought against counselors that obtained the consent of the noncustodial parent rather than the custodial parent’s consent (Stein, 1990). It is important for counselors to know the rights of the divorced parents regarding informed consent and releasing information. In some states, noncustodial parents are not given the right to information concerning children in counseling, and releasing such information breaches confidentiality and places the counselor at risk for legal complications.

    Child Abuse Reporting In 1968, following the reported 1962 findings of Kempe and his colleagues of more than 700 battered children, all 50 states passed laws mandating that child abuse and neglect be reported by physicians and health care professionals. The two major reasons for reporting child neglect and abuse are (1) the child needs to be protected, and (2) the family needs help, and must be reported by anyone who is suspicious of or has reasonable cause or knowledge to believe that a child is being neglected or abused (ten Bensel, 1984).

    The problem of child abuse and neglect remains prevalent and critical. According to a 2010 study released by the U. S. Department of Health and Human Services’ Administration on Children, 772,000 children were reported as abused by the Youth and Families Children’s Bureau in 2008; and it is estimated that child abuse is underreported by 5:1. Today, all persons having responsibility for the care and treatment of children are required by law to immediately report abuse and/or the suspected abuse of a child, and failure to do so constitutes breaching the law and ethics standards. In ases of child abuse, counselors may find it useful to confer with professional colleagues and to gain expert legal advice when dealing in such difficult situations. Legal Aspects of Counseling There is a Standard of Care for professionals, and it describes the conditions and qualities that should be upheld by all practitioners in a specific field or service. The standard of care is subject to state laws and varies somewhat from state to state. In legal terms, the Standard is defined as “that degree of care which a reasonably prudent person would exercise in the same or similar circumstances” (Black, 1990, p. 1405).

    The standard is basically built around the decision-making process rather than on the outcome, and clients should never be guaranteed that their desired outcome will be attained. The standard of care is not a standard of perfection, and making a judgment error or careless mistake does not constitute departure from the standard of practice. Therapists are not expected to be perfect, but making several careless mistakes that would not have been made by reasonable therapists or practitioners can become gross negligence, which is unfortunately a key component of malpractice suits, and in licensing and board hearings.

    When ethics and law collide ~~ The ACA Code of Ethics (2005) H. 1. b. states that 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, and if the conflict cannot be resolved by such means, counselors may adhere to the requirements of law, regulations, or other governing legal authority. When questions about law present, it is imperative that counselors take time to think before reacting or overreacting, and not become impulsive.

    Upon determining that it might be a serious legal matter, counselors should seek advice from colleagues, and if need be, get an attorney on board. It can be considered a serious legal issue when lawyers are involved and the matter has been brought to court, as the counselor may in fact be in danger of being accused of unethical behavior or misconduct. Counselors should continue working to develop the skills to solve ethical problems before they escalate into legal problems or cause harm to the client. Conclusion

    As professional counselors we will regularly be required to make ethical decisions which will affect our clients as well as ourselves, and every part of the therapy process; “do no harm” is the most important model of behavior when facing complex issues. Character is an important part of ethical decision making, often requiring honesty, integrity and courage. We have a professional responsibility to model the highest possible level of moral behavior. Counselors should be united in their professional code of ethics and decision making. “Education is the most powerful weapon which you can use to change the world. ” ? Nelson Mandela

    Ethical and Legal Aspects in Counseling. (2016, Nov 11). Retrieved from

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