Counseling Today, Ethics Update

The end of ‘clear and imminent danger’

David Kaplan January 1, 2006

Editor’s note: American Counseling Association members received the 2005 ACA Code of Ethics bundled with the December 2005 issue of Counseling Today. (It is also available online at www.counseling.org/ethics.) Completed over a three-year period, this revision of the ethical code is the first in a decade and includes major updates in areas such as confidentiality, dual relationships, the use of technology in counseling, selecting interventions, record keeping, end-of-life issues and cultural sensitivity. 

All ACA members are required to abide by the ACA Code of Ethics, and 22 state licensing boards use it as the basis for adjudicating complaints of ethical violations. As a service to members, Counseling Today is publishing a monthly column focused on new or updated aspects of the ACA Code of Ethics. ACA Chief Professional Officer David Kaplan conducted the following interview with ACA Code Revision Task Force Chair Michael Kocet.

David Kaplan: For many, many years the Code of Ethics stated that confidentiality was to be broken if there was “clear and imminent danger.” The 2005 code now states in Section B.2.a. that confidentiality is broken when there is “serious and foreseeable harm.” Could you tell ACA members why the task force changed the wording from “clear and imminent danger” to “serious and foreseeable harm”?

Michael Kocet: The task force felt that there were broader circumstances that needed to be brought into account. Also, the legal language of the Tarasoff ruling had an impact in terms of duty to warn and duty to protect and who is the foreseeable victim or if foreseeable harm can be identified.

DK: So the word “foreseeable” actually came from the Tarasoff case?

MK: That is my understanding.

DK: How would you suggest that professional counselors think differently and make the shift from “clear and imminent danger” to “serious and foreseeable harm” when considering the need to break confidentiality? 

MK: I still see the essence of breaking confidentiality revolving around “clear and imminent danger,” but what “serious and foreseeable harm” does is to allow a broader scope of other circumstances where counselors need to seek consultation and seek ethical advice when considering the breaking of confidentiality.

DK: So “serious and foreseeable harm” is broader than “clear and imminent danger”?

MK: I think so. It recognizes that in some cultural and contextual situations clients may not have the need to maintain traditional confidentiality. For example, the client may ask that you automatically consult a member of his or her spiritual or religious community. I’ve also used the example of a counselor who is seeing a client who has a terminal illness, has exhausted all medical options, is psychologically healthy and lucid and rational with no substance abuse or major depression, and says, “I want to explore ending my life. I want your counseling and support through this process.” Since “serious and foreseeable harm” can be contextual, the counselor has the option of working with this client.

DK: Is “serious and foreseeable harm” always contextual?

MK: No. As an example, if a client says, “I am going to go home and shoot my partner,” that is objectively foreseeable harm.

DK: If we can focus on the word “foreseeable” for a moment, under the old 1995 code a client who told us that a crime was committed in the past had that information kept confidential because it occurred in the past and there wasn’t any clear danger in the present. Does this also apply under the 2005 code? 

MK: I would agree. There is no foreseeable harm to an event that occurred in the past. 

DK: A focus of the 2005 code seems to be an emphasis on consulting with other professional counselors if you are considering breaking confidentiality.

MK: The task force supported a team approach. Consulting with other professionals when faced with an ethical situation is always a good step and helps you to think about different options. The bottom line is that two (or three or four) heads are better than one. Of course, you still have an obligation to only reveal information germane to the consultation.

DK: The focus of the 2005 code on the importance of consulting with colleagues is in keeping with court rulings that have come out since 1995 indicating that in order to maintain minimal standards of care, a reasonable counselor will consult with other professional counselors when breaking confidentiality.

MK: Sure, and it also matches most, if not all, of the ethical decision-making models that are in texts and the literature. And in my opinion, consultation can be an ethics textbook, a journal article or a telephone conversation in addition to a face-to-face office visit.

DK: That is really interesting. I hadn’t thought of that. Being a baby boomer, I usually think of face-to face consultation. Section B.2.a of the new Code of Ethics specifies that counselors consult with other professionals when in doubt as to the validity of an exception. Does that mean that if a counselor does not consult when breaking confidentiality that they have been unethical? In other words, are we at the point in the profession where we are saying that if you are about to break confidentiality, we know you have to consult and it is unethical not to do so?

MK: The key phrase is “when in doubt.” Let’s go back to the example of the client who says, “I have a gun, and I’m going to go home and shoot my partner.” To me, in that moment, that does not raise doubt about breaking confidentiality. But, for example, when we talk about something like HIV and AIDS, it does become grayer. For example, a client who says they just found out that they are HIV positive, are angry and upset, and are going to have unprotected sex with their partner and neighbor is a situation that I would run by a colleague to get some consultation and feedback.

Next month: Updates involving romantic/sexual relationships

Letters to the editor: ct@counseling.org

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