chapter 1
Because this text is intended primarily for prospective counselors, most readers are likely to be graduate students in counselor education programs. However, many counselors who are already practicing use this text as a resource to help them address legal and ethical issues. As you digest and discuss the material, we hope you will develop a thoughtful understanding of ethical, legal, and professional issues in counseling. These issues, collectively, make up the professional orientation content area of your graduate studies.
A fundamental part of your professional development as a counselor is to acquire a firm grounding in the area of professional orientation. This content area includes three main components:
Developing a professional identity as a counselor. This includes understanding the history and development of counseling and related professions, knowing the professional roles and functions of counselors and how these are similar to and different from other professions, learning about and becoming involved in professional organizations, gaining awareness of counselor preparation standards and credentialing, knowing how to advocate for your clients and your profession, and developing pride in your profession. Professional identity is discussed in detail in Chapter 2.
Learning about ethics. This involves becoming familiar with ethical standards for counselors, understanding the ethical issues that counselors encounter, developing ethical reasoning and decision-making skills, and being able to use an ethical decision-making model to apply your knowledge and skills in your day-to-day professional activities.
Learning about the law as it applies to counseling. This includes being able to distinguish among legal, ethical, and clinical issues; acquiring a basic knowledge of legal issues in counseling and laws that affect the practice of counseling; and knowing what to do when you are faced with a legal problem.
The importance of professional orientation is evident in standards for preparation and credentialing of counselors. The Council for Accreditation of Counseling and Related Educational Programs (CACREP) sets standards for counselor preparation and accredits training programs that meet these standards. A primary purpose of the CACREP Standards (2016) is to ensure that students graduate with a strong professional identity. CACREP requires the curriculum for counselors in training to include studies that provide an understanding of professional functioning. Required studies include, but are not limited to, the history and philosophy of the profession, counselor roles and functions, professional organizations, professional credentialing, advocacy to address social justice issues on behalf of clients and the counseling profession, ethical standards, and applications of ethical and legal considerations (CACREP, 2018).
The National Board for Certified Counselors (NBCC), a voluntary organization that credentials counselors, also requires the counselors it certifies to complete course work in the area of professional orientation to counseling (NBCC, 2018). If you plan to become licensed as a professional counselor, you should be aware that state counselor licensure boards mandate that licensees demonstrate knowledge of professional orientation issues, which include ethical and legal issues.
Beyond external requirements, it is essential that you develop a strong professional identity as a counselor during this time when our profession is facing both new and ongoing challenges from other mental health professions. Counseling is a relatively young profession, and recent evidence indicates that the general public is not as aware of professional counselors’ identity compared to psychologists, social workers, and psychiatrists (MacLeod, McMullen, Teague-Palmieri, & Veach, 2016). You may be asked, “What kind of counselor are you?” or “Is being a counselor like being a psychologist?” or “How are counselors different from social workers?” These are legitimate questions, and you must be prepared to clearly explain who you are as a member of a professional group, what you believe, how you are similar to other mental health professionals, and, more important, how you are different. You must also be prepared to practice in ways that are ethically and legally sound and that promote the welfare of your clients. Information throughout this text will provide you with an understanding of your chosen profession of counseling and will prepare you to practice in an ethical and legal manner.
We hope that seasoned practitioners, as well as counselors in training, will read this text and find it useful. Professional, ethical, and legal standards are constantly changing, and it is important to keep up to date. Also, as Corey, Corey, and Corey (2019) have pointed out, issues that students and beginning practitioners encounter resurface and take on new meanings at different stages of one’s professional development.
Morals, Values, and Ethics
The terms morals, values, and ethics are sometimes used interchangeably, and they do have overlapping meanings. All three terms involve judgments about what is good and bad, or right and wrong, and all pertain to the study of human conduct and relationships. Nonetheless, distinctions must be drawn when these terms are applied to the behaviors of professional counselors.
The term moral is derived from the Latin word mores, which means customs or norms. Moral actions are determined within a broad cultural context or religious standard. Although some moral principles, such as “Do no harm to others,” are shared by most civilized groups of people, how these moral principles are interpreted and acted on will vary from culture to culture and from individual to individual within a culture. Thus, conduct that you evaluate as moral might be judged as immoral by another person or by people in another society. It is important to remember that what you view as moral behavior is based on your values. In this text, when we refer to moral conduct, we ask you to think in terms of your personal belief system and how this affects your interactions with others in all aspects of your life.
Although values are very similar to morals in that they serve as a guide to determining what is good or right behavior, we use the term values to apply more broadly to both the personal and professional functioning of counselors. Our personal values guide our choices and behaviors, and each of us holds some values more strongly than other values (Strom-Gottfried, 2007). Although your value system is unique to you, it has been influenced by your upbringing, the culture in which you live, and quite possibly your religious beliefs. What is important about your personal values as they relate to professional practice is that you have a high level of self-awareness of your values, and that you learn to bracket (Kocet & Herlihy, 2014), or set aside, your personal values within the counseling relationship. One of the hardest lessons counselors must learn is to respect values that are different from their own and to avoid imposing their own personal values on their clients. It is particularly difficult to avoid imposing your values when an implicit bias (a bias of which you are not aware) is at work, or when a client holds values that are very different from yours. For example, if you believe deeply that a fetus is a human being and that abortion is morally wrong, then it will be challenging for you to keep your values in check as you counsel a woman who is considering having an abortion (Millner & Hanks, 2002). Similarly, it may be difficult for you to counsel clients who are seeking divorce if you believe strongly in the sanctity of marriage. A series of court cases have involved counselors with strong religious beliefs who declined to counsel lesbian, gay, bisexual, and transgender (LGBT) clients. Partly because of the controversy generated by these court cases, the recently revised Code of Ethics of the American Counseling Association (2014) includes several standards that make it quite clear that counselors must avoid imposing their own personal values on their clients.
Members of the counseling profession share certain professional values. These include enhancing human development across the life span, honoring diversity and embracing a multicultural approach, promoting social justice, safeguarding the integrity of the counselor–client relationship, and practicing competently and ethically (ACA, 2014, Code of Ethics Preamble). These core values are articulated in the code of ethics to help acculturate students to the expectations of the profession (Francis, 2015). If a counseling student’s personal values were so strong that he or she could not learn to counsel clients who held differing beliefs, or if a student could not embrace the professional values of the profession as articulated in the ethics code, we would be concerned that the student is not well suited for the counseling profession.
1-1 The Case of Carole
Carole is a master’s student in counseling who is enrolled in her practicum course and has begun to work under supervision with her first clients. Carole self-identifies as mixed-race Hispanic; her father is White, and her mother emigrated from a country in Central America. Carole grew up hearing stories of the oppression and violence her mother had experienced in her home country before coming to the United States, and she has been saddened and angered to see the prejudice that her mother continues to encounter as a Hispanic American.
Now in her sixth week of practicum, Carole has received positive feedback about her work with clients. Today, however, she had a new client named Frank who sought counseling for depression that he believes is caused by his inability to find a job. During the session, Frank spoke at length and with bitterness about immigrants from Mexico and Central American countries who “have taken all the jobs that rightfully belong to real Americans.” He used a number of racial slurs as he was speaking. Carole found herself feeling angry with Frank, and she struggled through the session.
During her feedback session regarding her work with the client, Carole acknowledged that she had performed poorly in the counseling session and insisted that she would never be able to work with clients like Frank who were prejudiced against people who share her heritage. She asked to be reassigned to a different client.
What do you think of Carole’s request to be reassigned so that she will not have to continue working with Frank?
If you were Carole’s supervisor, what would you tell her?
Discussion: Although Carole’s emotional reaction to the client’s prejudice toward people who share her heritage is understandable, she must learn to bracket or set aside her personal values within her counseling sessions. Her supervisor will work with her to help her process her reaction and learn to effectively counsel clients who “push her personal buttons.” Actually, Carole is fortunate to have encountered a client like Frank while she is in her practicum and can receive the assistance she needs to become competent to work with such clients. Her supervisor will make it clear that referring Frank to a different counselor is not the solution to her difficulties and that Carole is expected to develop the competence to work with clients who evoke uncomfortable personal reactions.
Ethics is a discipline within philosophy that is concerned with human conduct and moral decision making. Certainly, you have developed your own individual ethical stance that guides you in the ways you treat others, expect them to treat you, and make decisions about what behaviors are good or right for you. In this text, however, we think of ethics as it relates to the profession of counseling; that is, ethics refers to conduct judged as good or right for counselors as a professional group. When your fellow professionals have come to sufficient consensus about right behaviors, these behaviors have been codified and have become the ethical standards to which you are expected to adhere in your professional life (ACA, 2014). Therefore, think about ethics as referring to your professional behavior and interactions. Keep in mind that ethics must prevail over your personal values when value conflicts arise within a counseling relationship. Because the counseling relationship exists to benefit the client, you must avoid imposing your own values on your clients.
Legal, Ethical, and Professional Behavior
Law is different from morality or ethics, even though law, like morality, is created by a society, and like ethics, it is codified. Laws are the agreed-upon rules of a society that set forth the basic principles for living together as a group. Laws can be general or specific regarding both what is required and what is allowed of individuals who form a governmental entity. Criminal laws hold individuals accountable for violating principles of coexistence and are enforced by the government. Civil laws allow members of society to enforce rules of living with each other.
Our view is that there are few conflicts between law and ethics in professional counseling. Keep in mind, though, that there are important differences. Laws are created by elected officials, enforced by police, and interpreted by judges. Ethics are created by members of the counseling profession and are interpreted and enforced by ethics committees and licensure and certification boards. Laws dictate the minimum standards of behavior that society will tolerate, whereas ethics pertain to a wider range of professional functioning. Some ethical standards prescribe the minimum that other counselors will tolerate from fellow professionals (for example, sexual or romantic relationships with clients are prohibited), and some standards describe ideal practices to which counselors should aspire (for example, counselors aspire to foster meaningful and respectful professional relationships).
Rowley and MacDonald (2001) discussed the differences between law and ethics using concepts of culture and cross-culture. They argued that “law and ethics are based on different understandings of how the world operates” (p. 422). These authors advise you to learn the different culture of law, seek to understand how law operates, and develop collaborative partnerships with attorneys. We agree with the perspective that the cultures of counseling and law are different and that seeking legal advice is often an important step in the practice of counseling.
Where does the notion of professionalism fit into the picture? Many factors—including the newness of the counseling profession, the interpersonal nature and complexity of the counseling process, and the wide variety of types of counselors and their work settings—make it essential for counselors to conduct themselves in a professional manner. It is not easy to define what it means to be professional, and we discuss this in more detail in Chapter 2. Legal standards are the minimum that society will tolerate from a professional. Ethical standards occupy a middle ground, describing both the minimal behaviors expected of counselors and the ideal standards to which counselors aspire. Although professionalism is related to ethics, it is possible to be unprofessional without being unethical. For instance, a counselor might frequently run a bit late for counselling sessions, which might be considered unprofessional but would not be unethical. By contrast, if a counselor were to enter into an intimate relationship with a client, this behavior would be immoral, unethical, illegal, and unprofessional, and would violate the professional values that counselors strive to uphold.
Professionalism is closely related to the concept in a profession of best practice, and perhaps the concepts of law, ethics, and best practice in the field of counseling are on a continuum. Best practice is the very best a counselor could be expected to do. Best practice guidelines are intended to provide counselors with goals to which they can aspire, and they are motivational, as distinguished from ethical standards, which are enforceable (Marotta & Watts, 2007).
Although there is no consensus among counseling professionals about what constitutes best practice (Marotta, 2000; Marotta & Watts, 2007), you will want to strive to practice in the best possible manner and provide the most competent services to your clients throughout your career. Meeting minimum legal standards or minimum ethical standards is not enough for the truly professional counselor. Professionalism demands that you be the best counselor for your clients that you are capable of being.
1-2 The Case of Alicia
Alicia will be seeing a 16-year-old minor for his first counseling session. Alicia knows that legally and ethically she must have one of his parents sign an agreement for her to disclose information regarding his sessions to his parent’s health insurance company so that the parent will be reimbursed partially for the cost of her counseling services. Alicia also is aware that, according to the ACA Code of Ethics (2014), she may include parents in the counseling process, as appropriate (§A.2.d.; §B.5.b). However, she realizes how important confidentiality is to adolescents, and she wants to provide services to this minor in a way that would meet best practice standards.
What are some of the things Alicia might do in this situation to go beyond what is minimally required by law or the code of ethics?
How will Alicia know if what she finally decides to do is best practice?
Discussion: You will have the information you need to answer these questions after you have read material on ethical decision making, informed consent, confidentiality, and counseling minor clients, all presented later in the text. For now, a brief answer is that Alicia would be well advised to hold a conversation with both the client and his parent(s) present, in which she discusses confidentiality and its limits (including the information she would share with the insurance company). Including the client in the decision-making process is good practice, and Alicia can ask the client to sign the agreement to signify his assent, in addition to having the parents sign to give legal consent. Best practice for Alicia will mean keeping a careful balance, honoring both her minor client’s right to privacy and his parents’ rights to information about their son, and working to establish and maintain a cooperative relationship with all parties.
A Model for Professional Practice
One source of very real frustration for prospective and beginning counselors is that there are so few absolute, right answers to ethical, legal, or best practice questions. Throughout your career, you will encounter dilemmas for which there are no cookbook solutions or universally agreed-upon answers. We visualize professional practice as entailing a rather precarious balance that requires constant vigilance. We also see counseling practice as being built from within the self but balanced by outside forces, as shown in Figure 1-1.
Figure 1-1 Professional practice—built from within and balanced from outside the self
Figure 1-1 Full Alternative Text
In this model of professional practice, the internal building blocks are inside the triangle. The most fundamental element, at the base, is intentionality. Being an effective practitioner must start with good intentions, or wanting to do the right thing. The overwhelming majority of counselors have the best intentions; they want to be helpful to those they serve.
The second building block contains principles and virtues. Principles and virtues represent two philosophies that provide the underpinnings for ethical reasoning. Moral principles are a set of shared beliefs or agreed-upon assumptions that guide the ethical thinking of helping professionals (including physicians, nurses and other medical specialists, teachers, and mental health professionals). Basic moral principles include respect for autonomy (honoring freedom of choice), nonmaleficence (doing no harm), beneficence (being helpful), justice (fairness), fidelity (being faithful), and veracity (being honest). Virtue ethics focuses on the traits of character or dispositions that promote the human good. We discuss these in more detail later in this chapter.
The third element is knowledge of ethical, legal, and professional standards. You will find that a wealth of resources is available to you as you work to gain, maintain, and expand your knowledge base. Texts such as this one, casebooks, professional journals, codes of ethics, workshops and seminars, professional conferences, some Internet sites, and your supervisors and colleagues are all excellent resources that can help to increase your knowledge.
The fourth element is self-awareness. As discussed earlier in this chapter, counselors must maintain a high level of self-awareness so that they do not inadvertently impose their own values, beliefs, and needs onto their clients. Knowledge of ethical, legal, and professional standards is not sufficient; best practice is achieved through constant self-reflection and personal dedication, rather than through mandatory requirements of external organizations (Francis, 2015).
Even after you have developed a solid knowledge base and the habit of self-reflection, you must have skills for applying your knowledge and reasoning through the questions and dilemmas that will arise in your practice. You are expected to have a model that will serve as a road map to guide your ethical decision making and bring some consistency to the process.
The final internal element is the courage of your convictions. This element can challenge even the most conscientious counselors who have the best intentions. As a counselor, you will face ethical quandaries. It can take courage to do what you believe is right, especially when there is a high cost to yourself, when your personal needs are involved, when you know that others may not agree with or approve of your actions, or when (as is the case in ethical dilemmas) there is no single, clear, right answer to the problem.
The following are some examples of ethical quandaries that take courage and that involve the behavior of other counseling professionals: What if you know that one of your professors has published, under her or his own name only, an article based largely on a paper you wrote? What if your supervisor at your internship site is engaging in a behavior that you strongly believe is unethical? What if you know that one of your fellow interns, who is also your friend, is engaging in inappropriate relationships with clients? In such instances, it can be easier to turn a blind eye than to confront the individual involved and run the risk of retaliatory action by the professor, a poor evaluation from your supervisor, or the loss of a friend. Chapter 8 discusses important points you must consider if you suspect another professional is behaving in an unethical manner and actions you might take.
Examples of ethical dilemmas that involve your own behavior include the following: What if you know that you are supposed to maintain personal boundaries between you and your clients, but just once you agree to allow a client to buy you a cup of coffee and have a social conversation after a session has ended? What if you know you are supposed to render diagnoses of mental and emotional disorders for your clients based on criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013), yet you generally render the same diagnosis of adjustment disorder for most clients because you think this diagnosis is the least stigmatizing? What if you report to a counselor certification board that you attended a continuing education workshop you paid for, even though you did not actually attend it? In these situations, it might be tempting to make some minor compromises to your usual ethical behavior, especially when you feel that no harm comes to a client or to anyone else as a result.
Nonetheless, if you do nothing when you know the behavior of other professionals is unethical, or if you compromise your own ethical behavior, you may be setting foot on an ethical slippery slope. The slippery slope phenomenon is a term used by moral philosophers to describe what happens when one begins to compromise one’s principles—it becomes easier and easier to slide down the slope, diminishing one’s sense of moral selfhood along the way.
The diagram of the model also includes external forces that can support counselors in their efforts to maintain sound, professional practice. External sources of guidance and support include consulting with colleagues, seeking supervision, and increasing your knowledge and skills through continuing education activities. Your code of ethics is certainly a major source of guidance. Some laws support counselors in fulfilling ethical obligations; for example, privileged communication statutes can help you to uphold your clients’ confidentiality when called to testify in court or produce records. The system (school, agency, or institution) in which you are employed may also have policies on which you can rely when confronted with a challenge or a request to compromise your ethics.
The first belief that counselors share is that the wellness model of mental health is the best perspective for helping people resolve their personal and emotional issues and problems (Leppma & Young, 2014; Ey, Moffit, Kinzie, & Brunett, 2016; Williams & Ramsey, 2017). Myers, Sweeney, and Witmer (2000) developed a comprehensive model of wellness specific to counseling. Historically, the primary model used by other mental health professionals in the United States to address emotional problems was the medical or illness model, an approach created by physicians in caring for persons with physical illnesses.
In the medical model, the helper identifies the illness presented by the person asking for assistance. The diagnosis of the illness is always the first step in helping. This perspective assumes that the client is diminished in some significant way. The goal of the professional helper is to return the help seeker to the level of functioning enjoyed before the illness occurred. Once the illness has been isolated, the helper applies scientific principles in curing the illness. If the helper is successful and the illness is cured, the client then goes on about life. If another illness negatively affects the client’s well-being, the client returns to the helper to be cured again.
Psychiatrists, who are physicians, are educated to approach mental health issues utilizing the medical model. Other mental health professions, including clinical psychology, psychiatric nursing, and clinical social work, came into existence when the medical model was prevalent, and these mental health professionals have their roots in this tradition as well.
Counselors, on the other hand, belong to a newer profession with a different tradition. Counselors have adopted the wellness model of mental health as their perspective for helping people, and there is evidence that counseling from a wellness perspective is an effective method of helping clients (Myers & Sweeney, 2004; Tanigoshi, Kontos, & Remley, 2008). In the wellness model, the goal is for each person to achieve positive mental health to the degree possible. From a wellness perspective, mental health is seen as occurring on a continuum (Smith, 2001). At one end of the scale are individuals who are very mentally healthy. Maslow (1968) described people who are fully functioning mentally and emotionally as self-actualizing. At the other extreme are persons who are dysfunctional because of mental problems. Such people might include persons who do not have the capacity to respond to any kind of mental health treatment or intervention.
In addition to this general continuum of mental health, the wellness orientation also views mental health as including a number of scales of mental and emotional functioning (see Figure 2-1). These scales represent an individual’s mental and emotional wellness in important areas of living. Counselors assess a client’s functioning in each of these areas to determine where attention within counseling might best be focused to increase wellness. These areas include family relationships, friendships, other relationships (work, community, church, etc.), career/job, spirituality, leisure activities, physical health, living environment, financial status, and sexuality.
Figure 2-1 The wellness orientation to mental health
Figure 2-1 Full Alternative Text
Counselors assess clients’ current life situations and help determine which factors are interfering with the goal of reaching their maximum potential. Many persons are limited by physical disabilities or environmental conditions that cannot be changed. Keeping such limitations in mind, counselors assist their clients in becoming as autonomous and successful in their lives as possible.
Although the distinctions between the medical model and the wellness model can be clearly articulated, there is considerable overlap when they are put into practice. Many individual practitioners within the other mental health professions deviate from the illness model. In fact, evidence that the medical profession has adopted many elements of the wellness model can be seen in current trends toward preventive medicine, consumer education, and patient rights. Increasingly, medical practitioners are coming to view patients as partners in their own health care, and this trend is also evident in the approaches of many psychiatrists, psychologists, and other mental health professionals. At the same time, today’s counselors are educated to use the medical model of diagnosing mental disorders (the DSM system) and often render such diagnoses as a component of the services they provide.
Within the counseling profession there is an increasing recognition of the importance of advocating for clients who face societal and institutional barriers that inhibit their access or growth and development (Hunt, Matthews, Milsom, & Lammel, 2006; Ingersoll, Bauer, & Burns, 2004; Myers & Sweeney, 2004). Client advocacy has long been a tradition in social work practice, but until recently it has not been emphasized in the training of counselors, other than rehabilitation counselors. Mental health professionals who operate from the illness model might treat patients or clients in ways that appear similar to the way they would be treated by mental health professionals who embrace the wellness model. For example, mental health professionals who espouse either model would most likely provide individual or group counseling services, spend time talking with clients, take clinical notes, and render a diagnosis of any mental disorders the person may have. Perhaps the primary differences between the two are in the attitude of the professional toward the client and the focus of the professional’s clinical attention. Counselors see the client as having both the potential and the desire for autonomy and success in living rather than having an illness that needs to be remediated. In addition, the goal of counseling is to help the person accomplish wellness rather than cure an illness. Hansen (2003; 2005; 2006; 2007; 2012) and Hansen, Speciale, and Lemberger (2014) have written a series of articles that question many of the current practices and language used by counselors, suggesting that the counseling profession may be moving away from its foundational beliefs by classifying itself as a health care profession.
A Developmental Perspective
A second belief that counselors share is that many personal and emotional issues can be understood within a developmental perspective. As people progress through the life span, they meet and must successfully address many personal challenges. Counselors believe that most of the problems people encounter are developmental in nature and therefore are natural and normal. Problems that some other mental health professionals might view as pathological, and that counselors would see as developmental, include the following:
A 5-year-old crying as if in terror when his mother drops him off for the first time at his kindergarten class
An 11-year-old girl who seems to be obsessed with boys
A teenager vigorously defying his parents’ directives
A 19-year-old boy becoming seriously depressed after breaking up with his girlfriend
A young mother becoming despondent soon after the birth of a child
A 35-year-old man beginning to drink so much he is getting into trouble after 15 years of social drinking
A 40-year-old woman feeling worthless after her youngest child leaves home for college
A 46-year-old man having an affair with a younger woman after 23 years of a committed marriage
A 65-year-old woman feeling very depressed as her retirement approaches
An 80-year-old man concerned that he is losing his mind because he is forgetting so much
By studying the developmental stages in life and understanding tasks that all individuals face during their lives, counselors can put many problems that clients experience into a perspective that views these problems as natural and normal. Even problems viewed as psychopathological by other mental health professionals, such as severe depression, substance addiction, or debilitating anxiety, could be seen as transitory issues that often plague people and that must be dealt with effectively if individuals are to continue living in a successful fashion.
Prevention and Early Intervention
A third philosophical assumption of counselors is our preference for prevention rather than remediation of mental and emotional problems (McCormac, 2014; Nelson & Tarabochia, 2017; Wester & McKibben, 2016). When prevention is impossible, counselors strive toward early intervention instead of waiting until a problem has reached serious proportions.
A primary tool that counselors use to prevent emotional and mental problems is education. Counselors often practice their profession in the role of teacher, using psychoeducation as a tool. By alerting clients to potential future areas that might cause personal and emotional distress and preparing them to meet such challenges successfully, counselors prevent problems before they arise. Just a few examples of prevention activities are parenting education programs, assertiveness training seminars, career exploration groups, and pre-marriage counseling.
When the time for prevention has already passed and a client is experiencing personal or emotional problems, counselors prefer seeing clients early in the process. Counselors believe that counseling is for everyone, not just for individuals who have mental illnesses or emotional disorders. By providing services to individuals when they begin to experience potentially distressing events in their lives, counselors hope to intervene early and thereby prevent problems from escalating. For instance, counselors would prefer to see a client who is beginning to have feelings of depression rather than someone who could be diagnosed as having an episode of severe depression, and counselors would encourage couples who are beginning to experience problems in their relationship to seek counseling rather than wait for their problems to escalate into serious marital discord.
Empowerment of Clients
The fourth belief that counselors share regarding the helping process is that the goal of counseling is to empower clients to problem-solve independently (Chronister & McWhirter, 2003; Dailey, Gill, Karl, & Barrio Minton, 2014a; Savage, Harley, & Nowak, 2005). Through teaching clients appropriate problem-solving strategies and increasing their self-understanding, counselors hope that clients will not need assistance in living their lives in the future. Realizing that individuals often need only transitory help, counselors also try to communicate to clients that asking for and receiving help is not a sign of mental or emotional weakness but, instead, is often a healthy response to life’s problems.
Malpractice involves professional misconduct or unreasonable lack of skill and has been defined as the failure to render professional services to the level expected in a particular community by a prudent member of the profession with the result that a recipient of services is harmed (Garner, 2014).
Malpractice includes intentional wrongdoing, incompetency, or unintentional wrongdoing of the professional involved. The concept of competency might be extended so that a counselor guilty of professional misconduct, evil practice, or illegal or immoral conduct also could be defined as incompetent.
Malpractice is also a type of civil lawsuit that can be filed against professionals for practicing in a manner that leads to injury to a recipient of their services. Professionals have a legal obligation not to harm individuals who come to them for professional services. Although the law cannot restore injured people to their former state of existence, it can require the person who harmed them to compensate them financially for their damages. If clients believe they have been harmed by their counselors, they can file a malpractice lawsuit against the counselors. Counselors who are sued must then defend themselves against the lawsuit before a judge or jury. In order for a client plaintiff to prevail in a malpractice lawsuit against a counselor, the plaintiff must prove the following elements (Schwartz, Kelly, & Partlett, 2010):
The counselor had a duty to the client to use reasonable care in providing counseling services.
The counselor failed to conform to the required duty of care.
The client was injured.
There was a reasonably close causal connection between the conduct of the counselor and the resulting injury (known as proximate cause).
The client suffered an actual loss or was damaged.
Proximate cause is a difficult legal concept to understand. Actual cause means that a person actually caused the injury of another person. Proximate cause has to do with whether the individual would not have been injured had it not been for the action or inaction of the other person. Cohen and Mariano (1982) explained that “an intervening cause which is independent of the negligence absolves the defending negligent actor of liability” (p. 121). In other words, just because professionals are negligent does not make them responsible for an injury. It must be proven that some intervening event (other than the counselor’s negligence) did not, in fact, cause the injury. Foreseeability is important in determinations of proximate cause (Cohen & Mariano, 1982). Foreseeability has to do with whether the professional knew or should have known that the professional’s actions would result in a specific outcome.
Counselors have become increasingly concerned about being sued for malpractice. For example, because counselors are concerned about whether they should ever touch clients, Calmes, Piazza, and Laux (2013) have provided guidelines related to when touching between counselors and clients is appropriate or inappropriate. Although malpractice lawsuits against mental health professionals have increased dramatically over the past decade, the total number of these lawsuits is relatively small. Hogan (1979) concluded that few malpractice lawsuits are filed against counselors because it is difficult for plaintiffs to establish an adequate case. It is not easy to prove that a counselor deviated from accepted practices and that the counselor’s act or negligence caused the harm that a client suffered.
The Healthcare Providers Service Organization (HPSO, 2014) issued a report, covering the 10-year period between 2003 and 2012, that summarized legal actions taken against counselors for whom they provided professional liability insurance. This report concluded that the most frequent professional liability claims against counselors and the most complaints made to licensure boards involved inappropriate sexual or romantic relationships with clients or the partners or family members of clients. The second and third most common licensure board complaints against counselors were breach of confidentiality and scope of practice issues (practicing outside the area of a counselor’s expertise or authority under licensure laws).
This report provided other interesting information about claims made against counselors. Almost 67% of complaints were based on face-to-face counseling of an individual client. Even though only about 8% of professional liability claims involved minor clients, payouts from these claims were almost three times higher than payouts related to claims involving adult clients. More than 41% of claims against counselors were made by clients who had sought counseling related to marriage or family discord. Almost 40% of the claims against counselors were based on allegations of an inappropriate sexual or romantic relationship with clients or the spouse, partner, or family member of clients. More than 10% of claims against counselors were accusations that counselors had acted outside their state-defined scope of practice.
According to the 2014 report of the Healthcare Providers Service Organization, one of the biggest payouts to individuals who sued counselors was a case in which a male counselor engaged in a sexual relationship with an adult female client while she was in active treatment. The client videotaped a counseling session without the counselor’s knowledge in which he could clearly be seen striking her. The client filed a complaint with the police, and the police videotaped the counselor stealing from the client’s bank account. The claim filed by the client was settled in the $500,000 range.
Although all professional counselors know that it is unethical to have sexual relationships with clients, this case and others demonstrate that some counselors do engage in sex with their clients. For each reported case, there probably are many that are not reported. It is essential that counselors know themselves and practice self-care so that they do not allow human weakness to lead them into sexual relationships with clients.
Insurance companies that provide professional liability insurance for counselors and attorneys who sue and defend counselors in malpractice cases have provided guidelines for avoiding being accused of wrongdoing. An insurance company that provides professional liability to counselors, Insureon (2014), has provided advice for avoiding malpractice claims:
Always maintain strong personal boundaries.
Educate yourself on standards of care for counselors set by your state licensure board and make sure you always follow them.
Make sure your clients have realistic expectations for the services you are providing them and get an agreement in writing.
Keep notes and records that are thorough and accurate.
Terminate services to clients who attempt to initiate any inappropriate relationship with you, and facilitate their transfer to another counselor.
Refer clients to specialists when they have issues outside your areas of expertise.
It appears that mental health professionals continue to be sued most often because of sexual relationships with their clients. However, it is likely that the next leading cause of malpractice lawsuits against counselors revolves around situations in which clients attempt or complete suicide (McAdams & Foster, 2000; Roberts, Monferrari, & Yeager, 2008). Whether to have sex with clients is certainly under the control of a mental health professional. Predicting whether a client will attempt suicide, however, is scientifically impossible. Yet, counselors will be held accountable in courts if they fail to follow procedures endorsed by the profession when a client is at risk. Suicidal clients, potentially violent clients, and the duty to warn intended victims of client violence are discussed in the following sections, and guidelines for practice in these areas are offered.
Suicidal Clients
When a client threatens to commit suicide, an ethical duty arises to protect the client from harm to self. The ethical standard that applies to clients who pose a danger to others applies to suicidal clients as well, in that confidentiality requirements are waived when disclosure is necessary to protect clients or others from serious and foreseeable harm (American Counseling Association [ACA], 2014, Code of Ethics, §B.2.a.). Evaluating and managing suicide risk is one of the most stressful situations that you will encounter in your work (Corey et al., 2019; Miller, McGlothlin, & West, 2013). Suicide prevention programs are an important responsibility for counselors (Gallo, 2017). Suicide prevention measures begin with a thorough risk assessment and then, depending on the level of danger, might include involving the client’s family or significant others, working with the client to arrange for voluntary hospitalization, or even initiating the process that leads to an involuntary commitment of the client. All of these interventions are disruptive and compromise the client’s confidentiality. Ethically (ACA, 2014, §B.2.e.), and legally under the Health Insurance Portability and Accounting Act (HIPAA), it is important to disclose only information you consider essential in order for someone else to help prevent a suicide attempt.
Similar to situations in which clients threaten harm to others, the counselor’s first responsibility is to determine that a particular client is in danger of attempting suicide. There is no sure way to predict whether a particular client will attempt suicide, but experts agree that individuals who commit suicide generally give cues to those around them (Capuzzi, 2002; Jacobs, Brewer, & Klein-Benheim, 1999; Laux, 2002; Myer, 2001; Rogers, 2001; Rogers, Lewis, & Subich, 2002; Schwartz, 2000; Schwartz & Cohen, 2001; Stanard, 2000). Day-Vines (2007) has alerted counselors to the soaring rates of suicide among African Americans in the United States, and information such as this must guide the day-to-day work of counselors when they assess clients for suicide potential. In most circumstances, a counselor’s determination of a client’s level of risk must be based on clinical observations, not on test results. If counselors were not prepared in their graduate programs to handle crises (Allen et al., 2002), they must overcome this deficit through independent reading, workshop attendance, post-master’s degree course completion, and supervised practice (McGlothlin, Rainey, & Kindsvatter, 2005; Morris & Minton, 2012; Shannonhouse, Lin, Shaw, & Porter, 2017).
As noted, determining that a client is at risk of committing suicide leads to actions that can be exceptionally disruptive to the client’s life. Just as counselors can be accused of malpractice for neglecting to take action to prevent harm when a client is determined to be suicidal, counselors also can be accused of wrongdoing if they overreact and precipitously take actions that violate a client’s privacy or freedom when there is no basis for doing so (Hermann, Remley, & Huey, 2011). As a result, counselors have a legal duty to evaluate accurately a client’s potential for suicide. Counselors can be held liable for overreacting and for underreacting. So, how should a determination be made as to whether a client is suicidal?
First, no matter where you work as a counselor, you are likely to provide services to individuals who might express suicidal thoughts (Hermann, 2001; O’Dwyer, 2012). Therefore, it is necessary for all counselors to know the warning signs that a particular person is at risk for committing suicide. A legal case from the 1960s (Bogust v. Iverson, 1960) held that a college counselor was not a mental health professional and therefore had no duty to assess a client’s risk of suicide. Since then, however, counselors have established themselves as mental health professionals, and the law imposes on counselors practicing in all settings the responsibility of knowing how to accurately determine a client’s risk of suicide (Bursztajn, Gutheil, Hamm, & Brodsky, 1983; Drukteinis, 1985; Howell, 1988; Knuth, 1979; Perr, 1985). Because the act is done by the client without the counselor being a party to it, courts generally have been reluctant to hold counselors accountable for harm that results from clients who attempt or complete suicide. Lake and Tribbensee (2002), however, in their discussion of liability of colleges and universities for the suicides of adult students, cautioned that current legal trends suggest that mental health professionals on college and university campuses may be held accountable more often in the future for adult student suicides.
Much help is available in the professional literature, including research studies and articles that provide information about warning signs of future suicidal behavior (Daniel & Goldston, 2012; Meneese & Yutrzenka, 1990; Sapyta et al., 2012). Today’s counselors must know how to make assessments of a client’s risk for suicide and must be able to defend their decisions at a later time (Linehan, Comtois, & Ward-Ciesielski, 2012).
In recent years, the professional counseling literature has introduced considerable discussion regarding self-injury and the term nonsuicidal self-injury is often used, which might be a bit misleading. Ross and Heath (2002) defined nonsuicidal self-injury as behaviors that involve intentional bodily harm that cause tissue damage without an individual having the intent to die, and the International Society for the Study of Self-Injury (2018) added to that definition “and for purposes that are not socially sanctioned” (Zetterqvist, 2015). Self-injury includes such activities as cutting, burning, self-bruising, breaking bones (The International Society of the Study of Self-Injury, 2018), carving of the skin, subdermal tissue scratching, banging or punching objects or oneself, embedding objects under the skin (Self-Injury and Recovery Research and Resources, 2018), and excoriation (also known as skin picking) (Jagger & Sterner, 2016). The literature has explored the question of whether self-injury is associated with suicide (Whisenhunt et al., 2014), suggestions for providing counseling to clients who are engaged in self-injury (Rutt, Buser, & Buser, 2016; Nelson & Piccin, 2016; Stargell, Zoldan, Kress, Walker-Andrews, & Whisenhunt, 2017-2018), nonsuicidal self-injury prevention programs (Stargell et al., 2017-2018; Wester, Morris, & Williams, 2017), and detailed information regarding various forms of self-injury (Jagger & Sterner, 2016).
The prevailing belief among mental health professionals is that self-injury is not automatically a predictor of suicide attempts (Walsh, 2006), although certainly some people who self-injure might also be suicidal, and the risk of suicide is heightened among clients who self-injure (Brausch & Gutierrez, 2010; Toprak, Cetin, Guven, Can, & Demircan, 2011). Kakhnovets et al. (2010) found that the rate of suicidal ideation increased from 31.8% for those who reported one episode of self-injury to 60% for those who reported more than one episode of self-injury. Wester, Ivers, Villalba, Trepal, and Henson (2016), after a review of the literature, reported that 10% to 37% of those who engaged in nonsuicidal self-injury also attempted suicide at some point in their lives. Nock, Holmberg, Photos, and Michel (2007) and Nock, Prinstein, and Sterba (2010) found that suicidal thoughts generally do not accompany self-injurious behavior. It seems that self-injury and suicidal ideation are two separate behaviors and therefore should be assessed separately (Wester & McKibben, 2016).
8-1 The Case of Monica
Monica is a new counselor at a community mental health center. She has taken this position as her first job after completing her master’s degree in counseling. Ashley is a 15-year-old client with whom Monica has had two counseling sessions. Ashley’s mother drives her to counseling sessions and waits for her until the sessions are over and then drives her home. Ashley told Monica in their first session that she sometimes cuts herself with small incisions above her ankle and below her knee. Ashley assured Monica that the cuts were never deep, rarely produced any blood, and were not in any way dangerous. In that first session, Monica talked with Ashley about self-injury and what is known about such behaviors. She ask
Instructions
In this assignment, you will be selecting and researching one or two topics related to the essential professional practice areas in social work: poverty, child welfare, older adults, health, and mental health. Based on your chosen topic, you will focus on the appropriate chapter(s) in the textbook Practicing Rights: Human Rights-Based Approaches to Social Work Practice (David Androff).
The following chapters are included in the book:
- Chapter 1: The Relevance of Human Rights to Social Work
- Chapter 2: A Framework for Rights-Based Practice
- Chapter 3: Human Rights-Based Approaches to Poverty
- Chapter 4: Human Rights-Based Approaches to Child Welfare
- Chapter 5: Human Rights-Based Approaches With Older Adults
- Chapter 6: Human Rights-Based Approaches to Health
- Chapter 7: Human Rights-Based Approaches to Mental Health
- Chapter 8: Perils and Prospects of Human Rights-Based Approaches to Social Work
First, you will want to read and review Chapters 1, 2, and 8 in the book to gain a broader understanding of human rights-based approaches to social work. Next, read and review the chapter(s) associated with the topic you are interested in researching (poverty, child welfare, older adults, health, or mental health).
You will address the following questions in your research paper:
- How are human rights and human rights-based approaches relevant to social work? Explain their significance.
- Which social work topic are you researching for this paper, and why did you select this topic or practice?
- What are some key concerns, social, and ethical issues related to your chosen research topic, and how could a human rights-based framework be applied to help address some of these concerns?
- How can human services professionals adapt their helping strategies and interventions for diverse individuals using a human rights-based framework?
- What are some of the potential implications of using a human rights-based approach?
In addition to using this textbook as your primary source of information, you will incorporate peer-reviewed journal articles and other sources to give you a better overview of your topic area.
You will need to use the following sources to explore your topic in greater detail:
- a minimum of three peer-reviewed journal articles
- two current and credible news articles that discuss relevant research related to your topic
- both of your textbooks
Your paper should:
- be approximately five pages, double-spaced.
- include a title page and a reference page (in addition to the five pages).
Brainfuse (Optional)
Once you have completed your paper, you can choose to submit it to Brainfuse, Tutoring Services: Online Tutoring, so that a tutor can evaluate your work and offer suggestions to enhance your writing. Submitting your paper to Brainfuse is optional; however, getting feedback from someone trained to provide this kind of detailed advice will be helpful!
- Choose Brainfuse Online Tutoring from the left navigation.
- Select Launch Brainfuse.
- Select the Submit Paper button in the Writing Lab section.
- Choose Research Paper, then the Select button.
- Complete the information and upload your document.
- Be sure to check your Message Center for their response (usually within one business day).
- Revise your paper based on the feedback and submit your assignment.
You can find further information and assistance using FSCJ Library resources.
Be sure to follow all APA style guidelines and include a title page, in-text citations, and a reference page in your paper. Students will receive feedback in the comments section in Canvas. The feedback will be based on the grading rubric for this assignment.