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Ethics Chp. 3 - Ethical and Legal Issues in Counseling
Terms in this set (33)
Based on generally accepted norms, beliefs, customs, and values. Developed by professional associations to guide the behavior of a specific group of professionals. Serve 3 purposes:
1. To educate members a/t sound ethical conduct
2. To provide a mechanism for accountability
3. To serve as a means for improving professional practice
The Code of Ethics (ACA) is based on:
Six Moral Principles of:
Laws in Counseling
Based on the same generally accepted norms, beliefs, customs and values as ethics, but are more prescriptive, incorporated into code, and carry greater sanctions or penalties for failure to comply.
Professional counselors must make their clients aware of conflicts and their ethical standards
When no harm will come to clients, professional counselors will often follow the legal course of action because:
There are greater penalties associated with laws
not ethics per se, but recommend practice standards that professional counselors should strive to uphold; parallel ACA Code of Ethics but speak more directly to their specialty areas
How do you know which code takes precedence when you hold multiple credentials with their own codes of ethics?
1. What is the setting in which one is practicing, and is there a particular code that applies specifically to that setting?
2. In what capacity is the professional operating?
How often does the ACA revise its Code of Ethics?
About every 10 years. The 2014 ACA Code of Ethics added a new section that specifically addresses distance counseling, social media, and technology issues.
The ACA Code of Ethics serves six main purposes:
1. The Code sets forth the ethical obligations of ACA members and provides guidance intended to inform the ethical practice of professional counselors;
2. The Code identifies ethical considerations relevant to professional counselors and counselors-in-training;
3. The Code enables the association to clarify for current and prospective members, and for those served by members, the nature of the ethical responsibilities held in common by its members;
4. The Code serves as an ethical guide designed to assist members in constructing a course of action that best serves those utilizing counseling services and establishes expectations of conduct with a primary emphasis on the role of the professional counselor;
5. The Code helps support the mission of ACA;
6. The standards contained in this Code serve as the basis for processing inquiries and ethical complaints concerning ACA members. (p. 3)
All professional counselors are held to the ACA Code of Ethics by the mental health community, regardless of
whether they are members of the ACA
The ACA Code of Ethics is divided into nine areas:
(A) the Counseling Relationship; (B) Confidentiality and Privacy; (C) Professional Responsibility; (D) Relationships with Other Professionals; (E) Evaluation, Assessment, and Interpretation; (F) Supervision, Training, and Teaching; (G) Research and Publication; (H) Distance Counseling, Technology, and Social Media; and (I) Resolving Ethical Issues.
The ACA Code of Ethics (2014a) Section A additions:
- adds language to section A to make it clear that counselors must avoid imposing their personal values and may not refer a client based on any of the counselor's personally held beliefs, values, or behaviors.
- extending counseling boundaries" to replace the terminology previously used of "harmful and beneficial relationships"
- prohibits a counselor from having a personal virtual relationship with current clients
The ACA Code of Ethics (2014a) Section B additions:
The term "records kept in any medium" is used to be inclusive of whatever records are kept and includes such things as artwork, music, and all other records from counseling.
The ACA Code of Ethics (2014a) Section C additions:
C.6.e, Contributing to the Public Good. Counselors are expected to provide services to the public for which there is little or no financial benefit for the counselor.
Suicide: Eisel v. Board of Education
- The Eisel case in Maryland changed the standard for many professional school counselors. In that case, two middle school students became involved in Satanism and became obsessed with death and self-destruction. Friends of Nicole Eisel went to their school counselor and told the school counselor that Nicole was thinking about killing herself.
- The case concluded eight years after it began and found that the school and professional school counselors had acted appropriately given the circumstances, their training, and the policies in place at the time.
- School counselors in Maryland (and as a standard in other states) must always tell the parent whenever there is any indication from a child or someone else that the child is thinking about suicide, regardless of the seriousness of the threat. They must also inform the principal or the principal's designee.
Keeping Children and Families Safe Act of 2003 defines child abuse as
physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child younger than age 18 years or the age specified by the child-protection law of the state in question by a person who is responsible for the child's welfare within circumstances that indicate the child's health or welfare is harmed or threatened.
- Every health practitioner, educator, human-services worker, and law enforcement officer must report suspected abuse or neglect, generally within 24 to 72 hours of first "having reason to suspect"
- Parents or guardians have no rights to information during this process. The agency, school, or other entity making the report should not inform the parents that a report is being made.
The Health Insurance Portability and Accountability Act (HIPAA) of 1996
The Privacy Rule set national standards for the privacy and security of protected health information. The rule specifically excludes any individually identifiable health information that is covered by FERPA. Health records in schools that are under FERPA are specifically excluded from HIPAA.
- As HIPAA continues to affect the sharing of health information, agencies and school systems must develop policies and procedures to address any potential conflicts between FERPA and HIPAA. Professional counselors must be aware of these issues and any additional policies, regardless of whether they are employed at schools, universities, agencies, or in private practice.
Educational records include all records of a student's achievement, attendance, behavior, testing and assessment, school activities, and other information the school collects and maintains.
Family Educational Rights and Privacy Act (FERPA) of 1974
- This law, often referred to as the Buckley Amendment, applies to all school districts, Pre-K-12 schools, and postsecondary institutions (colleges) that receive federal funding through the U.S. Department of Education (FERPA, 2008). Nonpublic schools that do not accept federal funding are exempt from this law.
1. first provision requires that schools or systems annually send a notice to parents or guardians regarding their right to review their children's records and to file complaints if they disagree with anything in the records.
2. the law limits who may access the records and specifies what personally identifiable information can be disclosed without informed consent—that is, what constitutes directory information, or public information.
3. The major exception relates to law enforcement; the school must comply with a judicial order or lawfully executed subpoena. The school must also make whatever information is needed available to the school's law enforcement unit.
*If a student is a dependent under Internal Revenue Service (IRS) rules, information can be given to the parent. Noncustodial parents have the same rights as custodial parents, unless their rights have been terminated or limited by the courts.
Protection of Pupil Rights Amendment (PPRA) of 1978, often called the Hatch Amendment, gives parents additional rights
- It established certain requirements when surveys are given to students in Pre-K-12 schools; it does not apply to postsecondary schools because students can consent on their own.
- It also requires informed parental consent before a student undergoes any psychological, psychiatric, or medical examination, testing, or treatment or any school program designed to affect the personal values or behavior of the student.
- gives parents the right to review instructional materials in experimental programs.
No Child Left Behind Act (NCLB) of 2001 included several changes to FERPA and the PPRA and continued to increase parents' rights.
- The PPRA now includes the following requirements:
- Schools and contractors must make instructional materials available for review by the parents of participating students if those materials will be used in any Department of Education-funded survey, analysis, or evaluation.
- Schools and contractors obtain written, informed parental consent before students' participation in any Department of Education-funded survey, analysis, or evaluation if information in any of the following areas would be revealed:
- Political affiliations or beliefs of the parent or student
- Mental and psychological problems of the family or student
- Sex behavior or attitudes
- Illegal, antisocial, self-incriminating, or demeaning behavior
- Critical appraisals of other individuals with whom the student has close family relationships
- Legally recognized privileged or analogous relationships such as those of lawyers, ministers, and physicians
- Religious practices, affiliations, or beliefs of the student or parent/guardian (newly added)
- Income other than such information required to determine eligibility or participation in a program (NCLB, 2001)
*does not apply to any survey that is administered as part of the Individuals with Disabilities Education Improvement Act (2004).
the relative has physical custody 24 hours a day, 7 days a week, but no legal custody of the child. Legally, this person has no educational decision-making rights for the child and cannot access the child's records or give consent.
Outside agencies may not access the records of any student without the signed consent of the parent or legal guardian
Local policies dictate whether signed informed consent is needed to share information at school team meetings, such as student assistance programs, individualized education programs (IEP), or student-services meetings, when the agency personnel are regular members of the team.
Personal notes are notes written by professional counselors to serve as an extension of their memories; they are an impression of the client or session. These notes must remain in the sole possession of the maker and cannot be shared with anyone except a substitute maker.
A substitute maker
A substitute maker is someone who takes over for a counselor in the counselor's position, in the same way a substitute teacher takes over for a regular teacher.
Where should counselors keep personal notes?
Personal notes must remain separate from the educational or clinical record. When any information in the personal notes is shared, it is no longer confidential.
When can information be shared from personal notes?
Information from the notes can be shared only in cases in which there is a clear duty to warn or when a judge requires that confidentiality be broken and the information be shared, such as in court-ordered testimony.
Each state has a minor-consent law that allows certain minors to seek treatment for certain conditions, usually involving substance abuse, mental health, and some reproductive-health areas.
- The problem this law presents for many professional counselors is that it allows them to assist adolescent clients legally but might conflict with their personal beliefs.
Confidentiality is the cornerstone of counseling and is what separates the counseling relationship from other relationships in which information is shared. Confidentiality belongs to the client, not to the counselor. The client always has the right to waive confidentiality or to allow information to be shared with a third party.
- Minors have an ethical right to confidentiality, but the legal rights belong to their parents or guardians (Remley & Herlihy, 2016). Most states protect counselor-client confidentiality. Approximately 20 states protect professional-school-counselor-student confidentiality through statutes (Cottone & Tarvydas, 2007), but many include significant restrictions.
Confidentiality Dilemma with Minors
Remley and Herlihy (2016) suggested the counselor first discuss the issue with the child to determine if the child is willing to disclose the information to his or her parents. If the child does not want to disclose the information, the counselor should try to help the parents understand that the best interests of the child are not served by disclosure. If this does not work, the counselor should schedule a joint meeting with the parents and child to discuss the issue. If the parents are still not satisfied, the counselor might have to disclose the information without the child's consent.
is the legal term used to describe the privacy of counselor-client communication.
- exists by statute and applies only to testifying in a court of law. When it exists, the privilege belongs to the client, who always has the right to waive the privilege and allow the counselor to testify. In other words, if the client holds privilege and orders the counselor to testify on the client's behalf, the counselor cannot refuse to testify on the basis of privileged information.
How is privileged communication determined?
federal, state, and local mandates determine its parameters. It is essential that counselors become familiar with their local mandates and policies to determine the extent to which privileged communication applies to their situations.
Limits to Confidentiality - duty to warn
When a professional counselor becomes aware that a client is in danger of being harmed, such as in instances of abuse or suicide, or when the client is likely to harm someone else, the counselor may break confidentiality to tell an appropriate person.
- Basis: 1974 Tarasoff case in California (Tarasoff v. Regents of the University of California, 1976): This case established the legal duty to warn and protect an identifiable victim from a client's potential or intended violence and has formed the basis of many other court decisions across the United States. Texas does not require duty to warn
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