Ethics Chapter 5 - Client Rights and Counselor Responsibilities
… starting on pg 227 of pdf
Advantages & Disadvantages of Online Counseling
debates over if online counseling can be considered traditional psychotherapy and benefits (if some are reluctant to get more traditional in-person treatment)
covid-19 made online counseling more common
benefits
potential for greater numbers of people to receive services
research is demonstrating the effectiveness of distance counseling with a variety of populations and conditions
capacity of digital technology to reach and enhance the delivery of services to vulnerable people
clients with certain disabilities or chronic illnesses that render them immobile
specific behavioral treatments tailored to individuals who may need to seek professional assistance from their own homes
access hard to reach populations, such as those in a rural or otherwise remote environment where a trip to a psychological clinic is difficult, unrealistic, or impossible
suggestions for counselors considering online counseling
Before offering distance counseling, acquire the appropriate competencies related to this evolving specialty
Learn how to adapt traditional methods for effective application to distance counseling]
Screen clients for suitability with respect to the specific distance services you are considering using
As a part of informed consent, educate your clients about the difficult situations that may occur during distance counseling
Familiarize yourself with the ethical guidelines that have been developed to inform your specific scope of practice
Be aware of the legal issues and state licensure board regulatory policies that govern your specific practices when delivering online counseling
disadvantages
Inaccurate diagnosis or ineffective treatment may be provided due to lack of behavioral clues and the lack of nonverbal information
Confidentiality and privacy cannot be guaranteed; digital technology expands the ways clients’ privacy and confidentiality can be breached (Reamer, 2017)
Therapists’ duty to warn or protect others is limited
Clients who are suicidal, suffering extreme anxiety or depression, or who are in crisis may not receive adequate immediate attention
Some online service providers may not be qualified to provide competent services and may misrepresent themselves and their qualifications
Clinicians’ use of digital technology introduces some complex challenges to therapeutic boundaries, especially multiple relationships (Reamer, 2017)
Anonymity enables minors to masquerade as adults seeking treatment and enables other clients to misrepresent themselves as well
It is possible for individuals other than the client to log on and engage in a session, as if they were the client
Transference and countertransference issues are difficult to address
It may be difficult to develop an effective therapeutic alliance with an individual who has never been seen in the traditional face-to-face counseling context
Distance counseling services may not be appropriate for clients with very complex or long-term psychological problems
barriers to accessing virtual counseling for some clients (socioeconomic status, rural areas, unfamiliarity with technology, young children focusing)
Legal Issues & Regulation of Online Counseling
whether it is legal for a mental health practitioner who is licensed in one state to treat a client in another state by telephone or over the Internet
a clinician’s license is intended for practice in the state in which the clinician is licensed to practice
some states have ruled that licensed mental health professionals cannot practice online counseling in states in which they are not licensed
a movement has been initiated to make clinical licensure for psychologists transferable and valid in all 50 states
the following situations that justify the use of remote services consistent with ethical practice and in keeping with regulatory standards
When service is provided in the context of an existing therapy relationship
When in-person treatment is either difficult or impossible to access due to client’s remote location
When remote services offer practical advantages over in-person treatment (such as clients’ busy schedule make remote sessions more efficient)
When the client desires remote sessions and the therapist has sufficient information about the client to determine that this is a rational and informed decision
Use of Smartphones
mental health providers and clinical programs are encouraging, or even requiring, clients to
download apps on their smartphones to record information about their clinical symptoms, moods, and behaviors
obtain psychoeducational information or automated messages from clinicians (e.g., supportive messages)
obtain links to local resources, such as the locations of nearby 12-step meetings
widely available technology that can individualize the nature of client care and can tailor assessment and treatment strategies to the needs and preferences of each client
crucial to remain flexible and creative as psychotherapists in order to ensure that our interventions and assessments are best suited to the clients we treat, and that we are not using a ‘one size fits all’ approach to client care
Competent Counseling Online
if complaints are filed, professionals who provide remote services will have to demonstrate competence in both the services they offer and the technology they are using to render services
Practitioners need to
determine what kinds of services they can and cannot appropriately offer
assess the benefits and risks of delivery of services remotely
acquire special training to become competent
must anticipate problems with technologically unsophisticated clients
informed consent process
address the limitations of confidentiality and discuss what actions might be taken in the event that confidentiality is compromised
discuss with the client, in advance, what to do during service disruptions, such as a technological failure
Working with Children and Adolescents
def of a minor varies by state (upper range 18-21, but some states authorize younger adolescents to consent to own health care in some circumstances)
therapists should clearly discuss the limits of confidentiality with minors as part of the informed consent process, even in cases when a parent or guardian consents to treatment
Legal and ethical questions
To what degree should minors be allowed to participate in setting the goals of therapy and in providing consent to undergo it?
What are the limits of confidentiality in counseling minors? Would you discuss these limits with minor clients even though a parent or guardian consents to treatment of the minor?
What does informed consent consist of in working with minors?
Parental Right to Info About a Minor’s Treatment
statutes & regulations vary by state, be aware of laws in your own state pertaining to minors
in most states - need informed parental/guardian consent (or counseling to be court-ordered) for minor to enter counseling relationship
parents or guardians generally have the legal right to know the contents of counseling sessions with their children
should emphasize the benefits of confidentiality, including strengthening the therapeutic relationship by fostering a sense of trust in the client
informed consent of parents or guardians may not be legally required when a minor is seeking counseling for
addictions to dangerous drugs or narcotics
sexually transmitted diseases
pregnancy and birth control
an examination following alleged sexual assault of a minor over 12 years of age
School Counseling and Parental Consent
must know the laws in their state or jurisdiction and understand the policies of the settings in which they work
school counselors do not have a legal obligation to obtain parental consent for counseling unless a state statute requires this
most schools have handbook - info about counseling services for students
often sent to parents at beginning of year - school rules, policies, services offered
typically a page at end of book that asks for signatures - consent for child to use services provide by school
some handbooks give examples of individual and group counseling activities
improving study habits, time management, making good choices, substance abuse prevention, anger management, career development, and other personal or social concerns
specific approval may be required if children want to participate in special counseling (such as a children of divorce group
Seeing Minors without Parental Consent
consider various factors
What is the competence level of the minor?
What are the potential risks and consequences if treatment is denied?
What are the chances that the minor will not seek help or will not be able to secure parental permission for needed help?
How serious is the problem?
What are the laws pertaining to providing therapy for minors without parental consent?
know relevant statutes in your state, consult with other professionals, consult with professional organizations
California - law in 2011, allows mental health practitioners to treat minors (12 years or older) if the practitioner determines the minors are mature enough to participate intelligently in outpatient treatment or mental health counseling & that involvement of parentals/guardians is inappropriate
protects the right to seek treatment of certain populations of youth, such as young people from immigrant families, homeless youth, people who are gay, and young people from cultural backgrounds that do not condone receiving mental health services
Informed Consent Process with Minors
minors are not always able to give informed consent
APA 2017 code - psychologists nevertheless
(1) provide an appropriate explanation
(2) seek the individual’s assent
(3) consider such persons’ preferences and best interests, and
(4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare
ACA (2014) Code of Ethics
counselors seek the assent of clients to services, and include them in decision-making as appropriate
recognize the need to balance the ethical rights of clients to make choices
their capacity to give consent or assent to receive services,
parental or familial legal rights and responsibilities to protect these clients and make decisions on their behalf
ethical responsibility of providing information that will help minor clients become active participants in their treatment
assent to treatment implies that counselors involve minors in decisions about their own care, and that to the greatest extent possible they agree to participate in the counseling process
therapeutic reasons for involving minors in their treatment
therapist demonstrates respect for them
therapeutic change is promoted by informing minors about the process and enlisting their involvement in it
in general, the older and more mature a child is, the more the person can be included in the process of ongoing informed consent
Involving Parents in the Counseling Process with Minors
often necessary to involve the parents or guardians in the treatment process
good practice for counselors to involve the parents or guardians in the initial meeting with their child to arrive at a clear, mutual agreement regarding the nature and extent of information that will be provided to them (gives the therapist an opportunity to see how they behave with e/o)
possible to create clear boundaries for sharing information and establishes a three-way bond of trust
Ethical & Legal Challenges Pertaining to Confidentiality with Minors
clinicians often experience difficulty when applying ethics codes guidelines in their work with children and adolescents
counselors who work with minors are frequently challenged to balance the minor’s need for confidentiality and the parents’ requests for information about the minor’s counseling
wise policy for practitioners to make it clear to parents of minors that effective counseling requires a sense of trust in the therapist
what will or will not be disclosed to parents or guardians must be discussed at the outset of therapy with both child & parent/guardian
cannot guarantee blanket confidentiality to minors
if parents or guardians request information about the progress of the counseling, the therapist may be expected to provide some feedback
if a counselor had relevant information and did not take appropriate action to prevent a minor client from self-injury, or if the minor client harmed another person, the counselor may be held legally accountable
seek supervision and consultation when necessary so that they are working within the boundaries of their competence
counselors need to understand the distinction between self-injury and suicidal behavior - high correlation between the two
assessment instruments can be used to screen for self-injury and suicide and to address the functions self-injury serves for clients
disclosure of a minor’s personal information can result in the child losing trust in the therapist due to fears that this personal information will be disclosed to parents - this should be explained to parents or guardians during the informed consent process
Addressing Bullying and Cyberbullying in Schools
prevalent and damaging forms of aggression with serious immediate and long-term negative consequences for victims and perpetrators
school counselors provide leadership to ensure that all school personnel have current and comprehensive training in prevention of bullying and effective methods of identifying and responding to bullying when it occurs
Counseling Reluctant Children & Adolescents
some young people resent not having a choice about entering a therapeutic relationship
often resist therapy because they become the “identified patient” and the focus is on changing them
frequently aware that they are only part of the problem in the family unit
many want to participate in treatment decisions but few are given the opportunity
Specialized Training for Counseling Children & Adolescents
unethical to practice in areas for which one has not been trained
it is important not to begin counseling with minors without requisite coursework and supervision by a specialist in this area
practitioners who want to counsel children may have to acquire supervised clinical experience in play therapy, art and music therapy, and recreational therapy
must understand the developmental issues pertaining to the population with which they intend to work
become familiar with laws relating to minors, to be aware of the limits of their competence, and to know when and how to make appropriate referrals
know about community referral resources (e.g., CPS)
Dealing with Suspected Unethical Behavior of Colleagues
if safe, the first step would be to approach the colleague with curiosity to explore the situation or talk with supervisor, former professors
making a report to the ethics board governing the profession of the colleague or reporting to the state licensing board is necessary in cases in which extreme harm could come to clients
if you are working at an agency or practice that is actively engaging in unprofessional conduct, you are culpable - when you cannot change the system, the next step would be to terminate with clients and leave that agency or practice
professionals admit they might not directly approach a colleague they believe is functioning below thresholds for competence or behaving unethically, even though they have an ethical duty
supervisees are particularly vulnerable because supervisors engaging in unethical behavior have the power to cease signing their supervisees’ hours log
ignoring evidence of peer misconduct is an ethical violation in itself
informal peer monitoring provides an opportunity for corrective interventions to ethically questionable acts
confront colleague directly or advising clients on how to proceed when they have concerns about another professional’s actions
the best way to proceed when you have concerns about the behavior of a colleague is to deal directly with the colleague, unless doing so would compromise a client’s confidentiality (unless its an egregious offense)
Malpractice Liability in the Helping Profession
What is Malpractice?
“bad practice” - failure to render professional services or to exercise the degree of skill that is ordinarily expected of other professionals in a similar situation
legal concept - alleged negligence that results in injury or loss to the client
professional negligence can result from unjustified departure from usual practice or from failing to exercise proper care in fulfilling one’s responsibilities
practitioners are expected to abide by legal standards and adhere to the ethics code of their profession
may be liable in a civil lawsuit for failing to do their duty as provided by law
plaintiff may claim that a practitioner’s actions (or lack of actions) deviated from the acceptable standard of care and directly caused harm to the client
focus of a negligence suit lies in determining what standard of care to apply in deciding whether a breach of duty to a client has taken place
judged according to the standards that are commonly accepted by the profession
no matter how ethical and careful you try to be, you can still be accused of malpractice - the more careful and ethical you try to be, the less likely you are to be successfully sued
thorough documentation of practices and consultations are key to prevailing in a lawsuit
level of vulnerability for having a complaint filed against you can also be linked to the population with which you work (e.g., working with children)
to succeed in a malpractice claim, these four elements of malpractice must be present:
(1) a professional relationship between the therapist and the client must have existed
(2) the legal duty based on this relationship must have been breached
therapist acted in negligent/improper manner, deviated from standard of care
(3) the client must have suffered harm or injury, such as emotional distress or physical harm, which must be verified
(4) there must be a legally demonstrated causal relationship between the practitioner’s negligence or breach of duty and the damage or injury claimed by the client
in the case of suicide - 2 factors to determine practitioner’s liability
foreseeability - assessing level of risk and documenting, if can’t → referral
reasonable care - appropriate precautions taken to prevent a client’s suicide
Reasons for Malpractice Suits
situations:
(1) the procedure used by the practitioner was not within the realm of accepted professional practice
(2) the practitioner employed a technique that the person was not trained to use
(3) the professional did not follow standard counseling procedures, which resulted in harm to the client
(4) the therapist failed to warn others about and protect them from a violent client
(5) informed consent to treatment was not obtained or not documented
(6) the professional did not explain the possible consequences of the treatment
common complaints lodged against counselors and other mental health providers by the state licensure board include boundary violations:
sexual/romantic interactions with current clients, client’s partners, or client’s family members
failure to practice within the boundaries of competence
improper sharing of confidential material without client consent or legal justification
failing to make fees and charges clear to clients
misrepresenting credentials
altering records
using false advertising
practicing while impaired
common sources of complaints lodged against psychologists include:
multiple relationships (both sexual and nonsexual)
incompetence in diagnosis and treatment
disputes arising out of child custody evaluations
premature termination
fee disputes
inadequate supervision
inadequate record keeping
impairment
breach of confidentiality
failure to obtain or document informed consent
refusal to counsel clients due to value differences
client abandonment & premature termination
termination - “the ethically and clinically appropriate process by which a professional relationship is ended”
abandonment - “the failure of the psychologist to take the clinically indicated and ethically appropriate steps to terminate a professional relationship”
useful to document the nature of a client’s termination, including who initiated the termination, how this was handled, the degree to which initial goals were met, and referrals provided when appropriate
under managed care programs, termination typically is not the result of a collaborative process but of company policy - like allocated number of sessions → responsibility to inform clients that request for more sessions may/may not be granted by managed care provider, work with client to explore alternatives
practitioners who work on a fee-for-service basis can usually terminate treatment when they are not receiving payment for their services because the original remuneration contract is not being honored - no legal duty to provide free psychological services
at the very least the client should be given referral options and appropriate notice of termination
sexual misconduct with a client
marked departures from established therapeutic practices
employ unusual therapy procedures → burden of demonstrating a rationale for their techniques
practicing beyond the scope of competency
if the client follows the treatment suggested by a professional and suffers damages as a result, the client can initiate a civil action
accepting a case beyond the scope of a counselor’s education and training is not only a breach of ethics but can result in a malpractice suit
negligent assessment & misdiagnosis
repressed or false memory
basic clinical and ethical principles:
Be attentive to the kinds of questions you ask clients
Remain nonjudgmental and demonstrate empathy as you talk to a client about possible memories of abuse
Avoid prejudging the truth of the client’s reports
If a client reports a memory, explore it with the person
Make use of established assessment and treatment techniques.
Avoid pressuring the client to believe events that may not have actually occurred
Do not minimize a client’s reported memories
Do not suggest to clients that they terminate the allegedly abusive relationship precipitously, unless there are signs of current danger
If you are not specifically trained in child abuse assessment and treatment, consult with a supervisor or a professional with expertise in this area, or refer the client for a clinical assessment
unhealthy responses to transference relationships
if a therapist’s personal reactions to a client cannot be managed effectively, an abuse of power is likely, and this can have both ethical and legal consequences
allegations have included sexual involvement with clients, inappropriate socialization with clients, getting involved with clients in a business situation, and burdening clients with a counselor’s personal problems
failure to assess and manage a dangerous client
Risk Management Strategies
practice of focusing on the identification, evaluation, and treatment of problems that may injure clients and lead to filing an ethics complaint to a licensing board or a malpractice action
best precaution - personal and professional honesty and openness with clients
know your limitations and remain open to seeking consultation in difficult cases
misunderstandings between therapist and client can result in a stronger therapist–client working relationship if the client and the therapist talk through it
Some recommendations for improving risk management include the following:
Become aware of local and state laws that pertain to your practice, stay current
Make use of treatment contracts that present clients with written information on confidentiality issues, reasons for contacting clients at home, fee structures and payment plans, a policy on termination, and suicide provisions
Present information to your clients in clear language and be sure they understand the information
Contemporaneously engage in assessment and document your decisions
Explain your diagnosis, the treatment plan, and its risks and benefits in sufficient detail to be sure the client understands it, and document this as well
Inform clients that they have the right to terminate treatment any time they choose
Restrict your practice to clients for whom you are qualified to provide mental health services by virtue of your education, training, and experience
Document what you do and why, but also what you decided not to do in certain cases
Maintain good financial and clinical records, and recognize your ethical, professional, and legal responsibility to preserve the confidentiality of client records
Be aware that insufficient information in a client’s record may be problematic when your professional conduct is being evaluated
Develop clear and consistent policies and procedures for creating, maintaining, transferring, and destroying client records
Report any case of suspected child, elder, or dependent abuse as required by law
Evaluate how well you keep boundaries in your personal life
Before engaging in any multiple relationship, seek consultation and talk with your client about the possible repercussions of such a relationship
Be thorough about informed consent, documentation, and consultation when crossing boundaries or engaging in multiple relationships with high-risk clients
In deciding whether or not to accept a gift or to engage in bartering, consider the relevant cultural and clinical issues
Do not engage in sexual relationships with current or former clients or with current supervisees or students
Not keeping your appointments may feel like abandonment to a client. If you have to miss a session, be sure to call the client. Provide coverage for emergencies when you are not available
When in doubt, consult with colleagues and document the discussions. Before consulting with others about a specific client, obtain consent from the client for the release of information
Develop a network of consultants who can assist you in considering options without necessarily telling you what to do
Get training in the assessment of clients who pose a danger to themselves or others, or have an experienced and competent therapist to whom you can refer
If you are working with a suicidal client, consult and document the nature of the consultation
If you make a professional determination that a client is dangerous, take the necessary steps to protect the client or others from harm
Recognize that a mental health professional is a potential target for a client’s anger or transference feelings. Be attentive to how you react to your clients and monitor your countertransference
Treat your clients with respect by attending carefully to your language and your behavior.
Foster the therapeutic alliance and assess and discuss treatment progress and satisfaction throughout the course of therapy
The best protection against malpractice liability is to be concerned first and foremost with providing quality care and secondly to strive for ways to reduce risk
Have a theoretical orientation that justifies the techniques you employ
Support your practice, whenever possible, with evidence-based procedures
Engage in regular self-care strategies, including community care, adequate sleeping, healthy eating, and exercising. Get your own therapy from time to time
Build a mental health practitioner community and attend meetings and conferences to avoid burnout.
Course of Action in a Malpractice Suit
malpractice claims are not reserved exclusively for the irresponsible practitioner
clients may make allegations of unethical conduct or file a legal claim due to negligence, even though the counselor may have acted ethically and appropriately
consider recommendations
Treat the lawsuit seriously, even if it represents a client’s attempt to punish or control you
Do not attempt to resolve the matter with the client directly because anything you do might be used against you in the litigation
Contact the ethics and risk management services of your professional associations, if applicable. If you consult with an attorney, prepare summaries of any pertinent events about the case that you can use
Become familiar with your liability policy, including the limits of coverage, and contact your insurance company immediately
Never destroy or alter files or reports pertinent to the client’s case
Do not discuss the case with anyone other than your attorney. Avoid making self-incriminating statements to the client, to the client’s attorney, or to the press
Determine the nature of support available to you from professional associations to which you belong
Do not continue a professional relationship with a client who is bringing a suit against you. Terminate appropriately
Legal Liability in an Ethical Perspective
legal liability and ethical practice are not identical, but they do overlap in many cases
legal issues give substance and direction to the evolution of ethical issues
although you are not expected to be perfect, it is beneficial to evaluate what you are doing and why you are practicing as you are
engaging in self-reflection and dialogue with colleagues can go a long way toward reducing your legal liability and increasing your efforts to be an ethical practitioner