Tag Archives: Ethics & Legal Issues

Ethics & Legal Issues

Ethics, religion and diversity

By Gregory K. Moffatt February 5, 2018

Tears streamed down her face. Kaylah (not her real name) was a 21-year-old woman struggling with a romance in trouble. I’d seen it many times, even though I’d only been in the field for a few years at this point. My heart broke for Kaylah as I saw the same old story played out in the same old way — only the names and a few of the details were new.

Kaylah had been psychologically mistreated and her relationship was in serious trouble. Her partner demonstrated what social psychologists call the principle of least interest. This principle teaches that the person in any relationship — work, friendship, marriage — who has the least interest in maintaining it possesses the most power. My client’s partner treated her well on occasion but at other times humiliated her in front of others, exploded at her or ignored her for days on end. Kaylah tolerated these behaviors because she was desperate to maintain the relationship.

Kaylah’s partner’s emotions ran hot and cold. One day, they were talking about starting a family; the next, Kaylah’s partner threatened to leave, causing Kaylah to feel confused, hurt, angry and torn. Like most abused women, at times Kaylah felt surges of confidence that she should leave the relationship and never look back. Then, as if someone had flipped a switch, she was overwhelmed with love, hope and compassion for her relationship. In this phase, Kaylah made excuses for the pitiful way she was treated and assumed all the responsibility for their relationship troubles. It was classic battered woman syndrome.

What readers also need to know about Kaylah is that she was a lesbian. She was also a staff member at a church. Her lover, a member of the pastoral staff, was also Kaylah’s boss, which created a serious power issue (and a significant ethical issue too). For obvious reasons, the relationship was a carefully guarded secret. Kaylah had no one to talk to because her family wasn’t receptive to her lesbian lifestyle and she didn’t feel she could confide in her friends in the religious community. She also worried that if anyone found out, her partner would terminate the relationship — the thing Kaylah feared most in the world. Exposure might also mean that Kaylah could lose her job, her family and the few friends she had. She was totally isolated. What a mess.

One last thing that I need to tell readers: I am a person of religious faith, and until I met Kaylah, I hadn’t been forced to clarify the place for my religious beliefs in the counseling profession. That day, the decision I faced became crystal clear to me.

No room for debate

It was around the time that Kaylah entered my world that I taught my first college course overseas. As I was preparing to teach a marriage and family course in India, it dawned on me that our two cultures were very different. I worried that my knowledge would be so based in American culture that it wouldn’t translate well into Indian culture. But without denying our vast differences, my host reassured me. “Dr. Moffatt,” he said, “problems are problems.”

How right he was. Hurting relationships are the same regardless of culture, age, religion or sexual orientation.

In some ways, I can’t believe that equity for LGBTQ clients even remains a topic for debate. I remember when the AIDS epidemic first became public in the 1980s. Some people of religious faith actually stated that AIDS victims deserved the outcome as punishment for their lifestyle. I hope that even the most cold-hearted person today wouldn’t utter such nonsense. Even in those uncertain times when we didn’t know much about the disease, doctors served these men and women because it was their professional duty to do so, regardless of their personal opinions on homosexuality, drug use, multiple partners or other factors. Today, many nonprofit counseling agencies are run by faith-based agencies specifically for those who have HIV/AIDS. Thank goodness.

How, then, could there still be any possibility of debate in the 21st century over whether we should discriminate against our clients? Our concept of human rights as counselors is that all people deserve the same treatment, regardless of worldview, religion, gender, age or creed. Our modern view of equality has been evolving for decades, yet even counselors have not yet perfected it in practice. Just in the past decade or less, there have been several highly publicized court cases in which graduate students have refused to work with gay clients and suffered academic consequences because of their beliefs. These include Julea Ward in 2009 at Eastern Michigan University, Jennifer Keeton in 2010 at Augusta State University and Andrew Cash in 2014 at Missouri State University.

Supporters of these students lauded their bravery and commitment to their religion. Even though I am a person of faith, I cannot see why this type of irresponsibility to clients should be lauded. Interestingly, Christian tradition teaches that Jesus spent most of his time with the outcasts of his culture, not with the religious upper echelon, and he didn’t abandon people simply because they behaved in ways that were contrary to Jewish teachings. Gandhi and Mother Teresa also demonstrated a seeming lack of interest in religious pedigree. Instead, they helped the people who came to them.

Sadly, the three lawsuits from academia that I noted are just the ones that made the news. I suspect that many more therapists are practicing discrimination without the public becoming aware. “I’m not culturally competent to work with those issues” is a common argument that I hear among some in the profession to justify their referral of LGBTQ clients. In fact, the real reason is often a personal belief system rather than a question of competence. There is no way to tell how much of this type of referral or redirecting of client goals happens in our profession, but if my anecdotal experiences as a clinician, supervisor, professor and public figure in the field are any measure, the answer is a lot.

This clearly violates our ACA Code of Ethics. Under Standard A.4.b., we are clearly called to “seek training in areas in which [we] are at risk of imposing [our] values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.” Notice that it says seek training, not refer. In fact, Standard A.11.b. specifically prohibits referring solely on the basis of a conflict between the counselor’s values and the client’s values.

This culture war hit home for the American Counseling Association in 2016 when the Tennessee Legislature passed a bill that the state’s governor subsequently signed into law making it legal for counselors and therapists to discriminate against their clients if the client’s “goals, outcomes or behaviors … conflict with the sincerely held principles of the counselor or therapist.” This legislation clearly contradicted the ACA Code of Ethics. Consequently, ACA moved its planned 2017 annual conference from Nashville to San Francisco.

It should be noted that before we even get to the standards in the ACA Code of Ethics, our association’s mission statement directs that we exist to “promote respect for human dignity and diversity” through the profession. The key word here is not diversity but rather promote. We are actively to promote diversity, not actively run away from it.

A common base for truth

For any reader who thinks that I am not sensitive to the importance of religion, please bear with me. Religion does indeed matter, and many religions have clear teachings on a variety of subjects — sex, marriage, work, the roles of men and women — that are central to people’s faith and shouldn’t be ignored. But we must also recognize that many discriminatory traditions have their roots in religious teachings. Even in my short lifetime, I can remember a relative of mine excusing the discriminatory practices of his all-white church, saying, “God didn’t intend for the races to mix.” He then proceeded to use Bible verses to justify that belief. He made similar comments about mixed-race marriage, again justifying them weakly through religious teachings. Refusing to see clients based simply on sexual orientation is no different.

Some religious therapists have defended discriminatory practice by arguing that equating racism with clinical treatment of gay couples is comparing apples and oranges. The argument goes that if a counselor’s religious views teach that, for example, the heart of a couple’s problems is directly related to homosexuality — something the counselor’s religion teaches is inappropriate — then helping these clients maintain the very relationship that is causing their grief would be problematic if not unethical/immoral. I’ll address this argument momentarily. But, first, a brief tangent.

It would be disingenuous to say that counselors never force a worldview on a client. Of course we do. For example, one of the goals we almost always have for clients who are addicted is that they stop doing their drug of choice, even if they don’t want to stop. The difference between this worldview and that of the anti-gay worldview, however, is that this worldview is based on objective research, not moral code or religious teaching. Using methamphetamine destroys tooth enamel, leads to degenerative behaviors and can eventually kill the user. Alcohol abuse changes brain structure, destroys the liver and leads to degenerative lifestyle and potentially death, not to mention a host of other social ills.

As for a religious argument against homosexuality, there is no scientific evidence that being gay, transsexual, bisexual, etc., is clearly linked to any social or physical issue that is not also present among the heterosexual population. We must have a common base for “truth,” and that base is research, not religion.

Many years ago, a religious group, knowing I am a person of faith, asked me to do a seminar addressing why homosexuals would not be good parents. I refused because there is absolutely no evidence that one’s sexual orientation has anything to do with quality of parenting. It would be unethical to promote such a baseless argument. Academic integrity demands that as professional counselors, we pursue what we know. We must be driven by facts, not opinions and preferences.

Make a choice

Empathizing and working with a diverse population does not mean that a counselor must sacrifice her or his own position. We are free to think what we want, engage in our own religious practices and beliefs, and live our lives as we choose.

For many years, I’ve spent part of my year in the United States and part of the year in Chile, my second home. During this time, I have also traveled the world. Whether I’m in a clinic in India, the Philippines, Peru or Mexico, I still think like an American/Chilean. But when I’m in those varied cultures, I try to see the world through the eyes and culture of the people I encounter. I can easily do that without making any value statement about the culture itself, and even though I have personally adopted many customs and preferences from around the world, I have done so voluntarily. I would still be a competent counselor in those cultures if I hadn’t. My preferences are irrelevant when working in another country.

Our professional ethic simply means that we will not thrust our belief systems upon our clients any more than we would try to sell our clients a car, recruit them into a political party or manage their retirement accounts. What we cannot do is make choices that are at odds with wanting to work as a counselor, such as simultaneously wanting to function as a missionary who proselytizes clients into our personal belief system.

I occasionally work with individuals who have been mandated to treatment. Some of them have drug issues. I’ve heard all the arguments:

“Why is weed illegal? It’s a dumb law.”

“Who cares what I do in my own home?”

“Smoking weed doesn’t affect my job or my personal life, so why should I have to go to addiction counseling?”

My response is always the same. You can do anything you want — but all behaviors have consequences. If you want to smoke weed, go ahead. But if you don’t want to risk arrest, being fired from your job or kicked off your athletic team, don’t smoke weed. You can’t have it both ways.

To our profession, I make the same suggestion. If you are a pastor or priest, be a pastor or priest. Nobody is trying to stop you. But do not attempt to be a pastor while you are a counselor. If your religion teaches that you must proselytize in the workplace, then the counseling profession is not the best fit for you. There is nothing wrong with being a pastoral counselor in which your focus is pastoring, not counseling. But don’t pretend to be a counselor who is religious when, in fact, you want to function as a pastor who is also a counselor.

As counselors, our job is to help the hurting. We cannot — we must not — attempt to evaluate who we think is worthy of our help. Whether our clients are gay or lesbian, battered women or batterers, abused children or abusers, we don’t pick and choose who we help. Our ethical standards determine when we refer or step away, but our personal feelings — whether driven by religion, morals or anything else — have no role in our decision to help. Pain is pain. The pain of Kaylah’s relationship was no different than the pain from any other relationship. The fact that she was a lesbian was, in some ways, irrelevant.

Diversity includes people of faith

History hasn’t always been friendly toward people of faith. We hardly need to be reminded of the many wars and episodes of genocide that have been perpetrated against various religious groups throughout history. Even today in different places around the world, including the U.S., Christians, Jews, Muslims and others are persecuted for their faith. Television mogul Ted Turner brashly claimed in 1990 that Christianity was a “religion for losers.” These were thoughtless words from one who knew nothing of the religion. Jewish men, women and children are still isolated in many parts of the world. And I can’t imagine how difficult it must be to live as a Muslim in the U.S. Sadly, the words “Muslim” and “terrorist” are sometimes used interchangeably these days.

The field of psychology has not always been friendly to people of faith either. Sigmund Freud proposed that neurosis and religion were closely related and that religious people were weak and in need of a dominant father figure. In the 1950s, Alfred Kinsey despised religion, claiming it repressed “healthy sexual desires.” And as a graduate student, I was taught that we should never talk about religion in session, even if our clients brought it up, because it would only distract from more important issues. Really? Faith can be a central part of a person’s existence, influencing almost everything, from food, dress and marriage to job choice and child rearing. Yet I was taught that this was somehow unimportant and distracting.

About 20 years ago, I was presenting an ethics seminar for professional counselors. One of the case studies the seminar participants were supposed to discuss involved religion. The concise version of the question I posed was, “If your client was a person of religious faith, would it be acceptable to include that person’s religion in your therapeutic process?” Every single one of the 75 or so participants said no. Apparently, they had the same training I had.

I have personally witnessed bias within the counseling profession against people of faith. At professional conferences, I have heard comments in hallways and elevators openly disrespecting people of various religions. One clinician, wearing her conference name badge, rolled her eyes as the elevator door closed and said to another attendee, “Oh, God, this hotel is crawling with Christians. Heaven help us!” To which her friend snickered and nodded consent, as if Christians, Jews or Muslims were some sort of infestation.

At a past ACA annual conference, I attended a workshop on gay and lesbian issues. In the workshop, the leader subtly condescended to people of faith — something Derald Wing Sue calls microaggressions — and the audience openly jeered, laughed and mocked Christians in their public comments. No one said a word about the overtly biased, thoughtless and hurtful commentary. Although I certainly didn’t fear for my safety, I didn’t feel comfortable confronting this bigotry. And even though I agreed with the position presented by the session leader, I have never felt more discriminated against in my life.

The heckling I witnessed was the same thing that those in the LGBTQ community have rightly fought against in times past. It was the same behavior — only the target had changed. People of faith should be as welcome as members of any other group in a professional meeting.

I might also argue that people of religious faith can make outstanding counselors. Many religions teach the inherent value of all humans, creating a natural empathy among the religious for a hurting world. Although there are individuals who have used religion to pursue their own selfish agendas, there is no scientific evidence that people of faith are less intelligent, weaker or any less capable of working in the helping professions than are nonreligious individuals.

Conclusion

In a public presentation many years ago, Albert Ellis, a man known widely for his aggressive approach to his clients, littered his address with profanity. Visibly upset, several participants in the room eventually made an overtly public statement by storming out. The only remark Ellis made about it was this: “Counselors should never be upset with what people say.”

I have never forgotten those words. Whether or not Ellis was right, the message I took away was that, as counselors, we treat those who need help. In that regard, our clients’ words, sexual orientation, religion, age, gender, race, criminal history and socioeconomic status have no relevance. We help. That is what we do.

Many people in the counseling profession are also, in their personal lives, deeply committed to their faith. These counselors see clients daily without issue and function at the highest level of ethical conduct. But the few who feel they are called to change the profession, rather than to accept the profession as it is or to move on to another line of work, give us a black eye. Even worse, these counselors leave clients hurting — and perhaps discourage them from ever seeking help from another counselor again. It is always about the client.

Counselors using their religion as an excuse to refer clients or to force their ideas about sexuality upon their clients can deceive themselves into thinking they have ethical grounds for doing so. You don’t. Period. You must seek training to work through this issue (Standard A.4.b.) rather than perpetually referring LBGTQ clients.

As a footnote, I saw Kaylah in counseling off and on for a little over a year. During that time, her relationship went through various ups and downs. When we terminated, her daily functioning had improved significantly, but she was still nursing her seriously troubled relationship.

Months after termination, I happened across Kaylah in a shopping center. She was with her mother. Meeting clients on the street always makes me nervous, but when our eyes met from a distance, she beamed and ran toward me, towing her mother along by the hand.

Kaylah introduced me to her mother and, in turn, her mother’s face brightened. She stepped forward and hugged me tightly. When she stepped away, she had tears in her eyes. “I don’t know what all you did, but I know you saved my daughter,” she said. “Thank you for helping my baby.”

These were the most sincere and heartfelt words of gratitude I have ever received. I’m positive I did the right thing by my client, and I can’t imagine a world in which my religion would have allowed me to tell Kaylah to move along because I don’t work with clients who are gay.

 

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Gregory K. Moffatt is a professor of counseling and human services at Point University in Georgia. He is a licensed professional counselor and certified professional counselor supervisor. Contact him at Greg.Moffatt@point.edu.

Letters to the editor: ct@counseling.org

Counseling Today reviews unsolicited articles written by American Counseling Association members. To access writing guidelines and tips for having an article accepted for publication, go to ct.counseling.org/feedback.

 

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Other pieces written by Gregory K. Moffatt, from the Counseling Today archives:

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Technology Tutor: Scams aimed at counselors

By Rob Reinhardt January 18, 2018

Unlike social media, scams aren’t something new brought on by the advent of technology and the internet. Con artists, swindlers, charlatans, grifters — whatever you might call them — have existed since the dawn of humanity. What is new, however, is that these purveyors of fraud can carry out their schemes with more reach, speed and efficiency because of technology. A number of these scams are even targeted directly at mental health professionals. I have heard about some of these scams often enough over the past few years that I thought it would be helpful to summarize a few of them here to help prevent counselors from getting ensnared.

This is by no means an exhaustive list because new scams are cropping up all the time. We can expect continued and probably increased attempts aimed at mental health professionals because medical data carry such high value. It probably doesn’t help that counselors are altruistic and potentially more prone to easily trusting others. This makes many of us ideal targets for scammers.

The overpayment scam

In my experience, the overpayment scam has been the most prevalent in recent years. It starts with the counselor receiving an email requesting services from someone. Typically, the prospective client suggests that they are out of town or out of the country but want to secure several appointments for when they return. They offer to send a check for payment upfront for multiple sessions.

Shortly after the check is received, the person contacts the counselor, saying either that they have “mistakenly overpaid” or suddenly realized that they won’t be in town for all of the sessions for which they have paid. The person then asks the counselor to send a refund for the difference, typically via wire transfer. The scam is that the check the person sent is fraudulent. The counselor sends the refund, only to find out later that the check has bounced or been identified as a forgery, so the counselor has no recourse.

There are slight variants to this scam, including the con artist stating upfront that they are going to overpay and request a refund. In another frequent variant, the con artist suggests that they want to pay for services for a child, relative or friend who lives in the counselor’s area. In one of the most convincing versions I have heard about, the scammer suggests that he or she is part of a couple seeking counseling. The person goes into great detail about their issues and their desire to get several counseling sessions in while they are “back in town.” Alternatively, they have a very convincing reason why they can’t attend counseling where they live and thus are seeking services elsewhere.

Sadly, counselors who fall victim to this scam can end up dealing with more trouble than a simple loss of funds. If they cash the fraudulent check, the bank and, potentially, federal investigators may investigate to ensure that the counselor is not a willing participant in the scheme.

HIPAA phishing email

Although I haven’t seen the HIPAA phishing email lately, it’s a good example of how convincing phishing scams can look. A phishing attack is when someone with less than good intentions attempts to get information from you, typically by posing as another entity.

At the end of 2016, many medical professionals received what appeared to be an official email from the federal Department of Health and Human Services (HHS) Office for Civil Rights (OCR), the folks responsible for enforcing the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The email came from OSOCRAudit@hhs-gov.us and directed people to a website:
www.hhs-gov.us.

The email was on mock HHS letterhead and suggested that the recipient might be included in the HIPAA Privacy, Security and Breach Rules Audit Program. The link led to a website that was marketing cybersecurity services. It was convincing, in part, because of how similar the addresses were to the legitimate HHS website, which exists at hhs.gov, and the HHS email address of OSOCRAudit@hhs.gov.

For more details on phishing scams and tips for recognizing and avoiding them, read my blog post at bit.ly/TYPphishing.

You too can be a radio host

The following scenario might be filed under “disingenuous” rather than full-blown scam. It starts with an email or phone call suggesting that you would be a great person to have their own radio show on a popular radio or podcasting network. You may or may not have heard of this network. The questionable part of this scheme is that they only tell you further along in the process that you actually have to pay for “radio time.”

In a variant to this, you are invited to interview on an existing show. After the recording and a producer raving about how you’re “a natural” for radio, they spell out what it will cost to have your own show.

Not a scam: Informational audits

Many counselors have been receiving requests from third-party vendors, purportedly on behalf of private insurance companies, requesting client documentation for purposes of a “chart audit.” These can actually be legitimate requests. Insurance companies use this information for internal purposes, such as Affordable Care Act reporting, justifying rate increases and more. The chart audit isn’t the same as an audit to gauge medical necessity. It is more about quantifying things such as the frequency of certain diagnoses and codes.

Interestingly, the letters, emails and phone calls from these third-party vendors tend to be vague and ask for complete charts when those aren’t always necessary. This makes these requests look like scams. It can be especially concerning when something resembles a scam, yet the vendor mentions specific clients and dates of birth within the communication.

If you are in network with the insurance company, some question exists about whether you need to participate in these audits. Review your contract and consult with an attorney if you are unsure. As a first step, ask the third-party vendor to provide official documentation from the insurance company proving that the vendor is carrying out official business on the insurance company’s behalf. It is also prudent to verify this directly with the insurance company. My understanding is that counselors who are out-of-network providers are under no obligation to respond.

 

Ways to avoid scams

Trust your instincts: If red flags are raised for you, stop and investigate. Seek consultation, ask colleagues about it and do an internet search to determine whether the situation you are encountering has been seen before by others. Typical warning signs include prospective clients stating how many sessions they want and when, providing false phone numbers and asking for very specific modalities of treatment without apparent justification or understanding. In addition, any request from an unknown entity made via email or over the phone for client information or sensitive clinician information should be met with a healthy dose of skepticism.

Take your time: As natural helpers, our instinct may be to respond to requests promptly. If a request makes you feel uneasy, however, it is important to slow down and ensure that it is legitimate.

Use caution with checks: Especially in this day and age when credit card payments are the norm, accept payment via check only from trusted parties and only for the correct amount. It is important to note that you are responsible for any funds deposited via check. You are not safe just because a check initially clears. If the check is later discovered to be fraudulent, you will have to refund that money to the bank.

Report it: Many government agencies are involved with battling fraud and crime. The following website can help you determine where to report a scam: usa.gov/stop-scams-frauds.

 

Have you received a communication that you’re unsure about? Do you think you may have identified a new scam? Drop me a line at rob@tameyourpractice.com so we can investigate.

 

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Related reading from the Counseling Today archives, on the overpayment scam: “Fraudster targets counselor’s innate empathy

 

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Rob Reinhardt, a licensed professional counselor supervisor, is a private practice and business consultant who helps counselors create and maintain efficient, successful private practices. Before becoming a professional counselor, he worked as a software developer and director of information technology. Contact him at rob@tameyourpractice.com.

Letters to the editorct@counseling.org

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Technology Tutor: Revisiting the ethics of discussing clients online

By Rob Reinhardt November 7, 2017

If you have given even a cursory observation to the advertisements that appear on Facebook, during Google searches or on many of the websites that you visit, you will have noticed that these advertisements are targeted at you. The ads might be related to web searches you have performed, the area you live in or something that is generally popular with your age group.

This is how companies such as Facebook and Google make almost all of their money. They gather information about you (and everyone else) and sell advertising to companies that want to target you. They make a lot of money doing this because they are very good at letting those companies get very specific with their targeting. (Google reported revenues of $26 billion in the fourth quarter of 2016 alone.) For a glimpse into the kinds of details that Facebook collects about people, check out the great infographic at bit.ly/FBTargetOptions. That list keeps growing and getting more refined. It is especially important to note this passage from Facebook’s overview of how to target ads: “Behaviors are constructed from both someone’s activity on Facebook and offline activity provided by data from Facebook’s trusted third-party partners.”

In other words, to target advertising to their users, Facebook is collecting data from many different sources about both online and offline activity. So, this is not restricted only to the activity on Facebook.

What does this have to do with our clients (and potential clients)?

I continue to witness counselors engaging in referrals and case consultation in online forums such as Listservs and Facebook groups. This is despite my previous article on this topic last year in Counseling Today (see bit.ly/discussingclients) in which I discussed the difficulty of maintaining confidentiality for clients and the PIT principle (permanence, identity, transferability), and even with American Counseling Association Chief Professional Officer David Kaplan clearly stating that discussing clients online is an ethics no-no. The existence of marketing databases curated by entities such as Facebook and Google adds yet another reason that we need to consider other ways of addressing client needs.

Take this example of a completely fictional situation that could quite easily refer to a real situation:

Johnny Client contacts Susie Counselor about an appointment. He provides some background, and Susie recognizes that she is not a great fit for him. She decides to reach out to her local mailing list or Facebook group of therapists to see if she can provide Johnny with a solid referral. She writes: “Looking for referral for 30-something male dealing with depression. Needs counselor in network with ABC Insurance.”

Although this may seem innocuous at first, it is likely more than enough information for Johnny to be identified. In my previous article, I pointed out the human reasons this is an issue. (For instance, what if someone who knows Johnny or even Johnny himself is in the group? What if someone copies and pastes or screenshots the information?)

Now let’s look at it from a targeted marketing standpoint. Johnny’s call to Susie didn’t happen in a vacuum. Prior to calling her, Johnny did a search for “Counselor MyTown” and visited Susie’s website. These are traceable behaviors tied directly to Johnny, and they likely will end up in the databases used by entities such as Google and Facebook to target advertising. Based on these behaviors, Johnny is likely to start seeing ads on his computer for mental health treatments, counselors in the area and self-help books.

It is important to note that Susie Counselor is now probably connected to Johnny in these databases because he visited her website and placed a call to her. So, when she posts about the 30-something male with depression shortly after receiving Johnny’s call, it’s not a huge leap for database algorithms to figure out that this is the same Johnny Client who recently visited her website and called her — the same Johnny Client whose address, birthday and many other pieces of information already exist in the databases. Except now, thanks to Susie, those databases have learned that Johnny is dealing with depression. They may well have already known what insurance Johnny has, but if not, that’s another bonus that Susie provided for them.

What you can do

I’d like to highlight one of my suggestions from the previous article as well as provide a couple of other suggestions:

  • Make it counselor-centric: When seeking someone to refer to, focus on the counselor’s skills, not the client’s issues. For example, you might say, “I’m looking for a counselor who helps clients dealing with depression.”
  • Keep it offline: Go old school! Keep your own notebook or database of people you can refer to. Note their strengths, location, the insurance they accept, etc. Network and get to know them to elevate the quality of your referrals.
  • Raise awareness: Sometimes, counselors need to be reminded of things that we often tell our clients. For instance, just because others are engaging in a behavior doesn’t make it OK. Make others in your online forums aware of the privacy issues surrounding discussing referrals and cases online. Point them to this article and to my previous article that I referenced earlier. Point them to the pertinent passages in the ACA Code of Ethics (noted below). Even if they aren’t counselors, the ethics codes for social workers, psychologists, marriage and family therapists and psychiatrists contain similar passages, so their concern for client privacy and confidentiality should be just as great. Above all, be kind and compassionate in your approach.

Pertinent standards in the ACA Code of Ethics

B.1.c. Respect for Confidentiality

“Counselors protect the confidential information of prospective and current clients. Counselors disclose information only with appropriate consent or with sound legal or ethical justification.”

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Note the inclusion of “prospective” clients. Do you have the person’s consent before disclosing anything about them online? Can you accomplish your goal without disclosing information about them online? If so, what is your legal or ethical justification for disclosing?

B.2.e. Minimal Disclosure

“To the extent possible, clients are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circumstances require the disclosure of confidential information, only essential information is revealed.”

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Do clients (or prospective clients) fully understand the ramifications of you disclosing information about them online? Do they understand how few details it might take for computer algorithms to identify them? Are they aware of all the options for accomplishing the goal, and do they approve of online disclosure?

B.3.c. Confidential Settings

“Counselors discuss confidential information only in settings in which they can reasonably ensure client privacy.”

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Is there any way that this standard doesn’t completely rule out using online forums for any disclosure? Based on my experience and expertise, there simply is no way that counselors can reasonably ensure client privacy if they share any details about clients in most online forums.

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For an interesting discussion of this topic, including an interview with social media policy expert Keely Kolmes, check out Episode 104 of the TherapyTech with Rob and Roy podcast.

 

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Rob Reinhardt, a licensed professional counselor supervisor, is a private practice and business consultant who helps counselors create and maintain efficient, successful private practices. Before becoming a professional counselor, he worked as a software developer and director of information technology. Contact him at rob@tameyourpractice.com.

Letters to the editor: ct@counseling.org

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Bringing counselor expertise to court

By Jean Peterson

As a counselor educator, I could have done more to prepare counseling students for involvement with the court system. Pertinent discussions were usually limited to child custody, records, privileged communication, subpoenas and counselors’ vulnerability in the courtroom. I had experienced depositions and had written clinical summaries, but I had never appeared in court. My own preparation had included nothing about being an external expert witness.

Then I had an experience that underscored the importance of teaching and learning about court involvement. Although attorneys might not think of counselor educators and school and mental health counselors first when needing an expert witness, a counseling perspective might be crucial to an outcome. Apparently, mine was.

A bit of history

During the 1980s and early 1990s, a number of articles and monographs addressed court involvement for helping professionals. During that era, psychologists were growing in number, assessment was valued and psychological witnesses were increasingly used. In addition, media outlets were discussing “recovered memory,” and a high-profile case led to criteria for admissible expert testimony. However, conceptual literature noted that attorneys did not always appreciate the expertise and objectivity of therapists in the courtroom, and, because expertise was not standardized, lawyers and experts with stronger credentials could challenge witnesses.

Roles and behaviors related to court processes were also being clarified for counselors. I paid attention to Ted Remley Jr., a helpful legal voice in the field. I learned that both general and expert witness roles are possible, with the former providing facts and the latter providing opinions. An expert witness educates judge and jury by reviewing and interpreting facts and records, making inferences and then informing in neutral, understandable language. School and mental health counselors are more likely to be general, or fact, witnesses, although experience and special training might make them desirable as expert witnesses.

Journal articles about counselors’ involvement have been rare since then, but thanks to contributors such as Carolyn Stone, school counselors can access guidelines related to subpoenas, court orders and privileged communication, for example. However, media interest in bullying and the growing number of states with pertinent statutes suggest that courts will increasingly be involved in cases related to school safety. In such cases, a school counselor or counselor educator may be asked to serve as an expert witness, examining counselors’ and others’ roles or perhaps providing an opinion about the climate or culture of a school.

A surprising request

Eventually, I was contacted from a distance by the attorney for Wendy (pseudonym), a bright 22-year-old, in a civil case against a school district. Alleged negligence in the wake of extreme harassment had contributed to two extended traumatic experiences for Wendy.

My purpose here, in describing my experience as an expert witness, is to provoke thought about counselor court involvement, roles and behaviors, institutional cultures, ethical behavior, systemic contributors to harassment, and potential developmental impact of harassment and retaliation after reporting. Details about the process and time involved might lessen counselors’ concerns if asked to be involved.

Traumatic experiences

I was told that, during ninth grade, Wendy was assaulted physically and harassed with graphic sexual language by a school bus driver almost daily for several months. Allegedly, he had groped her when she entered and exited the bus, jerked her clothing to expose her underwear and asked about her sexual behavior. Wendy observed another student’s similar experiences.

Wendy realized that her younger sister, beginning to mature physically, soon would be vulnerable. She talked with her sister, who talked with the elementary school counselor, who contacted Wendy’s mother, who in turn contacted the school principal, superintendent and sheriff.

The second traumatic experience occurred after Wendy’s parents filed a complaint. Allegedly, the bus driver began drug- and sex-related rumors about Wendy, which were then perpetuated by students who considered the driver an ally. Their unrestricted behavior on sports-team buses (e.g., beer, pornography) matched the driver’s voyeuristic interest in their social lives. He talked with them about Wendy’s parents’ complaint, and, according to an interview during the investigation, encouraged one student to lie on his behalf. At school, Wendy, who formerly had enjoyed social ease, was harassed and marginalized. At the end of her junior year, she transferred to another school.

During the criminal case, which took place after Wendy’s transfer, the bus driver was acquitted. According to Wendy’s new attorney, who contacted me, adolescent witnesses for the prosecution had not presented themselves well in court, even in how they were dressed. Wendy would tell me later that she herself was “not prepped.” This new attorney was now preparing a civil case, focusing on the school system.

Credentials

I was initially surprised to be contacted. Then I considered my professional background. I was knowledgeable about school culture. When the attorney met with me, I told him I had been a teacher, counselor or group specialist in schools for 25 years and a counselor educator for 15, supervising school- or agency-based field experiences. I had worked closely with school administrators in several schools.

In addition, principals-in-training at the university were required to enroll in my Introduction to School Counseling course, and they interacted with the school counseling students formally and informally about their respective professional roles. As a counselor educator, I had led a national study of bullying and was acquainted with trauma literature through a 15-year qualitative study of a survivor of trauma. Beyond that were coursework and clinical experiences in family therapy. I had licenses in school and mental health counseling. Thinking about these experiences gave me confidence. Still, I had anxiety: I would be a first-time expert witness.

An educational experience

What I was asked to do fit my expertise. Training and experience in school counseling were important for my first formal opinion, whereas experience in counselor education was important for my second. The attorney initially traveled to meet with me for two hours. He described what he had learned about the bus harassment and the responses of school personnel after Wendy’s parents filed the formal complaint.

We soon communicated again by phone. I explained relevant concepts, including the developmental lens I routinely used as a counselor, examining developmental tasks (e.g., identity, direction, relationships and autonomy), “stuckness” and task accomplishment. I described findings in my study of trauma and noted literature related to posttraumatic stress disorder (PTSD). We discussed the bullying study and my study with John Littrell of a school counselor who transformed a school culture from bloody fights to harmony. In the latter, the school culture was deemed to be malleable, and a strong counselor-principal partnership was essential to the positive change. I assumed that principal and counselor roles and relationship, school culture and climate, bullying and PTSD all would be important to this case.

At that point, I formally agreed to be involved and was asked to keep track of hours. I said I would ascertain whether bullying legislation existed in that state when the alleged harassment occurred, and the attorney agreed to locate student handbooks of the school from that time. I subsequently met with a faculty member in educational administration at the university and consulted by email with a superintendent who was a former middle school principal, asking how he would respond to an anonymous scenario resembling Wendy’s. His details were helpful as the attorney and I considered what administrators did and did not do in Wendy’s case. I also received university permission to engage in the court process. This permission included a formal admonition that I be clear, both in oral and written testimony, that I did not represent the university or its perspective.

The attorney later sent me a thick loose-leaf binder containing documents and resources for me to study, including:

  • The student handbooks and the school district’s anti-harassment policies
  • Depositions from the superintendent and a teacher for the earlier trial and Wendy’s affidavit
  • Wendy’s mother’s formal complaint
  • Summaries of student statements in the sheriff’s investigation report
  • Polygraph results for Wendy and the bus driver
  • A letter regarding the bus driver’s disciplinary record and his responses to two sets of interrogatories
  • Wendy’s school attendance, academic performance and psychological evaluation records

I studied these materials in preparation for my upcoming meeting with Wendy. The attorney’s assistant arranged for my in-person interview with Wendy and clarified my focus:

1) Wendy’s experiences during the harassment

2) How experiences with the bus driver, students and staff affected her mentally, emotionally and psychologically

3) How she was treated by school counselors

4) Whether permanent damage had occurred

I then developed an interview protocol. The interview lasted 3 1/2 hours.

As I asked about Wendy’s experiences, including during the criminal case, I included questions about development. I also assessed her morale, alert to possible depression, suicidal ideation and PTSD. As directed, I asked about contact with school counselors, whether and how much administrators were aware of her distress, the responses of teachers and peers, and attendance and classroom achievement. Subsequently, I submitted a report to the attorney. Over the next three months, we conferred four times by phone as I prepared to write an affidavit.

The affidavit

Writing the actual affidavit required about seven hours. I needed to peruse the binder materials and notes from my interview with Wendy, communicate once with her by phone to verify details and develop a carefully written, facts-based document. In it, I first presented my credentials and professional employment record as well as a list of the documents I had examined. I explained that I had conducted an interview of a specific length, and I asserted that the information I had gathered from Wendy was the kind counselors rely on during assessment of concerns. Then I presented two formal “opinions.”

First opinion

The first opinion was that the district failed to exercise reasonable care to protect Wendy from a backlash of ridicule and retaliation by faculty and students that was foreseeable under the circumstances. Both action and inaction were part of this neglect. I then discussed pertinent aspects of school administration, school counseling and school culture. I first described some differences in the roles and training of principals and counselors. Pertinent to this case, a head principal sets the tone and establishes the professional culture and climate, including expectations of ethical behavior from counselors and institutional tendencies to ignore or address conflict and other systemic concerns.

I explained that a school counselor can be an oasis for troubled individuals while also staying alert to general student morale. Trained to be nonjudgmental, objective, proactive, collaborative and not a disciplinarian, the counselor is skilled in listening and responding and helping students cope with stressors and live effectively. The American Counseling Association’s 2014 code of ethics, which makes respecting the dignity and promoting the welfare of clients the counselor’s primary responsibility, guides decision-making and behavior. The American School Counselor Association’s ethical standards state clearly that school counselors’ primary obligation is to the student and that they are to inform officials about conditions that are potentially disruptive or damaging to school mission or personnel. All of these aspects were pertinent to the case against the school.

Inaction: Administrators’ inaction suggested a school culture not geared to ensuring a safe environment for learning. School became a hostile and dangerous place for Wendy. Her parents were her only adult advocates.

1) Administrators did not take Wendy’s situation seriously, even though they were aware of the sheriff’s interviews at school and an earlier complaint about the bus driver. According to a deposition, a key administrator did not read students’ statements.

2) Administrators did not suggest that Wendy see a school counselor, who could have focused on her emotional health, and did not partner with school counselors to ensure her protection after the retaliation began.

3) Administrators ignored the bullying. According to Wendy, “About 15 [students] routinely harassed me.”

4) Administrators did not direct teachers to be alert for situations needing intervention, an action that might have given teachers permission to support Wendy. She sensed distance from formerly approachable teachers. Only two teachers, over the course of two years, offered a supportive comment (e.g., “Sorry to hear about everything”).

5) The harassment was visible to teachers. On one occasion, a clique of high-profile students interrupted a class, asked for Wendy and bullied her in the hall with threats of rape.

6) An administrator did not honor Wendy’s request to see a counselor after she was accosted by the girl whom Wendy had witnessed being assaulted. The girl would not acknowledge being assaulted and denied that Wendy had been assaulted. Only Wendy was sent home.

7) Administrators and teachers never asked why Wendy was often absent in the afternoons (“because I couldn’t take it anymore”), even when they had seen her earlier in the day. One of Wendy’s parents usually came to the office while she signed out, in full view of a principal.

8) The bus driver continued to drive his school route for several weeks after the complaint.

The inaction of the counselor Wendy consulted was also pertinent. Wendy’s well-being was at issue, and an alleged sexual abuser/harasser was under investigation prior to the first trial.

1) The counselor did not intervene with the bullies/harassers (e.g., talking with them individually) and was not active on behalf of a student in crisis, especially in a complex situation that involved threats and a distressed target.

2) When Wendy wanted to talk with the counselor after being accosted (“I’d done the right thing and gone to him”), he did not advocate for her when the principal sent her home.

3) Unlike her sister’s counselor, who appropriately called Wendy’s mother, Wendy’s counselor listened during their several meetings after the retaliation began (“I was often red-faced and crying”), but did not validate feelings or speak of reporting the situation to administrators. The collaborative aspect of addressing serious problems was missing.

4) The counselor did not contact child protective services or discuss that possibility with administrators. The situation involved a school employee with responsibilities for minors (“full power,” according to the student handbook), alleged sexual harassment of a student and implied danger for other students.

Actions: The superintendent was not receptive to Wendy’s parents’ complaint and was not respectful when they initially met with him. Administrator actions suggested a toxic school culture that gave permission to school personnel to treat Wendy and the situation inappropriately.

1) After Wendy’s mother complained about the incident in which harassers/bullies asked that Wendy come into the hallway, the teacher who had deferred to them said to Wendy, “I can no longer trust you.” The implicit school-culture message was that students should not tell parents about distressing incidents.

2) Wendy’s mother learned that one junior high teacher had commented to a neighbor that “[the bus driver] always liked the young girls. … I thought it was consensual.” This indicated that at least one teacher was aware of the bus driver’s behavior and normalized it.

3) In class, a teacher compared “the bus driver thing to the McDonald’s hot-coffee case.”

Second opinion

The second opinion was that Wendy suffered long-lasting psychological injury — PTSD, depression and developmental stuckness — as a result of the school district’s failure to protect her.

Scholars have theorized that bullying inherently involves a power differential. The bully or someone with more power than the bully is responsible for stopping bullying, not the person with relatively little power. Wendy said the bus driver had “total control.” She said, “I tried to sit in back. If called to the front … I tried to laugh it off, told myself that I was just being oversensitive.”

Wendy’s behaviors make sense in that context. In addition, many adolescents do not report harassment because much is at stake, and they are not likely to know how to handle that level of embarrassment, especially in front of peers. The lack of a supportive and protective response from school administrators during the bullying had an impact on Wendy’s well-being and development.

Emotional development: Stuck in sadness, anger. With her experiences invalidated, Wendy said, “I analyzed myself to death.” Reflecting feelings of hopelessness, she said, “I feel like it’s never going to end. Why can’t I be done with this?” She was “nervous about the future,” asking, “Will I ever be able to move on?”

I concluded that her symptoms of depression did not reflect a neurological predisposition: “Other than this, nothing in my life could be called ‘unhappy’ — boyfriend, family.” All of her sad language was related to the situation with the bus driver and the consequent bullying. She felt deep anger about the situation being “pushed aside” even by people who were supportive in public. When asked to elaborate on her statement about “the system,” she referred to the school failing her and the bus driver being acquitted. She then said, “I can understand why people … seek violence instead of authority.” 

PTSD: Stuck in reactivity. Wendy described symptoms associated with PTSD in my study of trauma: hypervigilance; extreme, confusing emotions; and high reactivity to contextual reminders. She was “afraid I’ll run into the principal at a public event.” She was “terrified” when she saw the bus driver in the lobby at her worksite: “I wanted to hide in the back.” When seeing a school bus, “my hands become sweaty.”

Social development: Stuck in not trusting. Workplace relationships and friendships had been affected. In the past, she had “friends all over the place.” Now it was “hard to let people get close.”

Physical/sexual development: Uncomfortable, self-conscious. Wendy’s responses to my questions about physical and sexual development fit the literature about sexual abuse: “My body image was fine. … I wore anything, happy with myself.” Now there was doubt: “Maybe I let too much show.” She said she currently wore T-shirts and jeans with “nothing showing.” She worried, “Will they see me as provocative?” The bus driver’s comments had led to reactivity to even playful sexual comments, which affected her relationship with her boyfriend: “I’m still uncomfortable with sexuality.”

Career development: Stuck. This former honor student said her vision of her future was “absent.” When I asked where she might be now without this experience, she said, “I’d be a teacher.” About higher education, she said, flatly, “I thought about college, but I don’t know what I could do forever [as a job] to make me happy.”

Outcome and implications

After the attorney studied the affidavit, we had two conversations. Eventually, he reported that the school district had refused to settle out of court and that the defense would probably want a deposition from me. However, three months later, he sent news that the case had been resolved. The terms would remain confidential, but he added, “I do believe this case will do some good down the road for similarly situated students.” He said I could reference the case in the future, and he approved the manuscript for this article. He indicated that he had learned from me.

Wendy’s parents’ persistence and the attorney’s investment and instincts about school-system culpability were advantageous. During several years of struggle, Wendy and her parents demonstrated courage, first at school and then during two court cases. This case is a reminder to counselors and counselor educators of the potential impact of receptivity and nonreceptivity of school personnel to frustrated parents and distressed students. It also underscores the potential impact of adult and peer aggression on development.

I encouraged the attorney, when a trial was expected, to incorporate the concept of school culture, not just climate, into his argument. Cultures have norms, protocols, actual and de facto leaders, and implicit and explicit rules. Behaviors at many levels here reflected well-established constraints, permissions and toxicity. Wendy’s experiences in her new school were in stark contrast to those in the school she had left.

Counselor educators can raise awareness in their teaching that institutional cultures differ, reflect leadership and affect students’ and clients’ well-being. A school counselor’s actions and inaction can affect school culture just as any other school leader’s behavior can. Counselors elsewhere can similarly contribute to and be affected by institutional culture.

More situations such as Wendy’s are likely to generate court cases. State laws now define bullying and require school districts to address bullying behavior, giving children and their parents leverage for complaints. However, counseling professionals’ knowledge and experience, especially related to development, ethical behavior and systems, can be applied beyond bullying cases. Their expertise is potentially valuable across a wide range of cases with similar overtones.

I am now an expert witness for the second time, for another case involving bullying. Regardless of whether it goes to trial, I am reminded that counselors and counselor educators can indeed be expert witnesses. I believe that discussing such court involvement during counselor preparation can help counseling professionals be confident in that role if asked, and I hope that first-person accounts such as this one might help counselors embrace the process.

 

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Jean Peterson, professor emerita at Purdue University, focused most of her clinical work and research on the social and emotional development of gifted youth, with special interest in those not fitting common stereotypes. She received 10 national awards related to research and 12 at Purdue for teaching, research or service. Among her several books is Talk With Teens About What Matters to Them. Contact her at jeanp@purdue.edu.

Letters to the editor: ct@counseling.org

Counseling Today reviews unsolicited articles written by American Counseling Association members. To access writing guidelines and tips for having an article accepted for publication, go to ct.counseling.org/feedback.

 

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Related reading, from the Counseling Today archives:

 

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Counselors in the courtroom

By Margaret Taylor May 10, 2017

Counselor educators are responsible for ensuring that students are sufficiently prepared for entry into the counseling profession. It is challenging for counselor educators to include all areas of preparation because numerous content and curriculum standards must be met. One topic that often gets neglected is preparing counselors for testifying in court. In a paper presented at the 25th International Play Therapy Conference in 2008, Marilyn Snow and Ruth Ouzts Moore found that counselors were increasingly being called on to testify in court, especially in child custody cases. But most counselors are not well prepared to serve as competent witnesses or represent the counseling profession adequately.

Inadequate knowledge about the judicial system and process regarding court testimony may place counselors at risk for ethical violations. Therefore, I believe it is crucial that counselor educators prioritize educating students about testifying in court. The first time that I testified in court as a beginning counselor, I found that I had been poorly prepared by educators and attorneys. The experience nearly traumatized me. I was not ready for the questions that were asked of me or the grueling process of cross-examination. As a result, the client’s case suffered and the counseling profession was misrepresented.

After this initial experience of testifying in court, I vowed never to be caught unprepared again. I also determined to use my negative experience to better equip counselors for testifying in court.

 

Legal and ethical responsibility

Counselor educators are expected to be knowledgeable about ethical and legal issues in the counseling profession and recent changes in the field of counseling. Standard F.7.a. of the American Counseling Association’s 2014 Code of Ethics states, “Counselor educators who are responsible for developing, implementing and supervising educational programs are skilled as teachers and practitioners. They are knowledgeable regarding the ethical, legal and regulatory aspects of the profession; are skilled in applying that knowledge; and make students and supervisees aware of their responsibilities.” This section of the ethics code applies to the fact that counselors are frequently subpoenaed to testify on behalf of their clients. Accordingly, counselor educators are ethically obligated to educate students about their ethical and legal responsibilities when testifying in court.

The Council for Accreditation of Counseling and Related Educational Programs (CACREP) Standards (2016) also address the ethical and legal responsibilities of counselor educators in preparing their students for practice. Two CACREP Standards apply to the issue of counselors testifying in court. Standard 2.F.1.b. states that programs must include, “the multiple professional roles and functions of counselors across specialty areas,” whereas Standard 2.F.1.i. specifies that training must be provided in “ethical standards of professional counseling organizations and credentialing bodies, and applications of ethical and legal considerations in professional counseling.”

Together, the ACA Code of Ethics and the CACREP Standards would appear to require that counselor education curricula incorporate training in the roles and responsibilities that come with testifying in court and otherwise acting in the best interests of clients.

 

Competence as a counselor educator

Counselor educators are not only responsible for providing students with material on courtroom testimony and other aspects of law pertaining to their clients; counselor educators are also to be knowledgeable about the topic themselves. Counselors and counselor educators should seek guidance from counseling professionals who have served as witnesses in court.

As reported in the Counseling Today article “Your witness” in 2011, George Cyphers, a counselor educator at Kent State University and owner of a consulting business, made this statement about testifying on behalf of clients: “I have learned over the years that this is a serious business because it involves a person’s life. You cannot afford to hold yourself out as an expert unless you are willing to invest time and effort to prepare thoroughly for the challenge of cross-examination.”

Experience from practicing counselors reiterates the importance of preparing students for courtroom testimony. Time and effort should be placed into designing a curriculum that includes education about testifying in court on behalf of counseling clients. Students who are well-educated and prepared in this area are able to represent themselves, their clients and the profession effectively.

If we agree that counselor education programs need to prepare students for court testimony, the question becomes what should counselor educators include in the curriculum, and how are these competencies best attained? Various expert witnesses, attorneys and counselors have provided suggestions on what is important to know prior to entering the courtroom. Writing for the Journal of Counseling & Development in 1990, Jan La Forge and Phyllis Henderson suggested four categories: the role of the counselor in the courtroom, pre-court preparation, courtroom etiquette and strategies for answering questions.

 

Role of the counselor in the courtroom

The role of the counselor while in the courtroom is that of a witness. Forge and Henderson asserted that the counselor serves as an educator to the jury and the judge, providing factual and neutral information. It is important that counselor educators distinguish between an “expert witness” and a “witness of fact.”

To testify as expert witnesses, counselors must first be qualified as such by the judge. Demonstration of knowledge and experience may include publications, presentations and specific training in the area of expertise. The prosecuting attorney will ask counselors questions about their qualifications. Counselors answer these questions by demonstrating their knowledge and expertise. After presenting their qualifications, it is possible that the opposing attorney will call those credentials into question. Counselors should be prepared for this possibility. If they are not challenged, it is likely that the judge will qualify them as expert witnesses, meaning these counselors can offer an opinion on the case.

Valuable witnesses are typically well-educated, intellectual individuals who are able to educate a jury about their expertise as it relates to the case. Expert witnesses should be skilled at teaching a jury, using short statements rather than long uninterrupted assertions.

Conversely, “fact witnesses” provide testimony about what has been observed, heard or known as true events during the course of counseling. Michael Puhl of Puhl Law Group explained (2014) that fact witnesses do not have a particular expertise; therefore, they are not permitted to offer opinions about the facts of the case. Counselors working with children are often called to testify as fact witnesses because of disclosure statements made by children during session. As fact witnesses, counselors may repeat statements made by the child but not offer an opinion about the truthfulness of the statement.

Various resources exist for counselor educators and counseling professionals when preparing to be called as expert witnesses. The following is a list of books and articles on testifying as an expert witness:

  • “The Ten Commandments of Testifying at Trial” by David Benjamin
  • “Expert Witnesses, Courts and the Law” by Elizabeth Butler-Sloss and Ananda Hall
  • “Working as an Expert — Tips for Expert Witnesses” by Aaron Larson
  • “May It Please the Court: Testifying Tips for Expert Witnesses” by Laurence Miller
  • “Courtroom Survival Guide” by Patrick J. Walsh
  • Feder’s Succeeding as an Expert Witness, fourth edition, by Harold A. Feder and Max M. Houk
  • The Portable Guide to Testifying in Court for Mental Health Professionals: An A-Z Guide to Being an Effective Witness by Barton E. Bernstein and Thomas L. Hartsell Jr.
  • Clinicians in Court: A Guide to Subpoenas, Depositions, Testifying and Everything Else You Need To Know by Allan E. Barsky and Jonathan W. Gould

This list is not exhaustive, but it serves as a good starting point for counselor educators to incorporate material into a course for counseling students. Material on courtroom testimony can be infused into different courses of a master’s counseling program for clinical mental health or school counseling. Orientation classes on the counseling profession or for clinical mental health counseling or school counseling would also be appropriate courses to include material on expert testimony. In a counselor education and supervision doctoral program, a course on contemporary issues in counseling would be a fitting place for information on counselors serving as expert witnesses.

Counselor educators can also provide opportunities during practicum classes for students to meet with counselors who serve as expert witnesses. These expert counselors could answer students’ questions and concerns. Counselor educators can also arrange for an attorney or expert witness to attend class to demonstrate various court proceedings that counselors may encounter, including depositions, cross-examination, criminal trial and custody hearings. Role-plays of legal proceedings can also serve as an excellent method for educating counselors about what to expect in the courtroom.

Likewise, educators may arrange for students to observe a court hearing or attend a mock hearing or trial. A study conducted by Carol R. Colby and Lynn Landis Long in 1994 found mock trials to be a useful teaching method for graduate counseling students who are learning about ethics and legal proceedings. Legal and counseling ideas are integrated in a mock trial, providing students experiential learning and practical application. A mock trial helps students understand the functions of all people involved in the law, including judges, attorneys, mental heal professionals, jury members and court reporters. Educators can best prepare students for possible legal proceedings by pairing knowledge from lectures with experiential learning, such as roles-plays and mock trials.

 

Pre-court preparation: Documentation

Proper documentation is one of the many important tasks in preparing for court. Outside of the court setting, counselors are ethically obligated to maintain appropriate documentation of all clients. Therefore, preparing documentation for court should not pose a challenge.

Attorneys vary in what they request in a subpoena for records. Counselors should be prepared to provide all of the client’s records. However, counselors may be asked to present only records pertaining to a certain allegation or custody matter.

Many court cases do not occur until long after a counselor has terminated with the client. Being meticulous and cautious about documentation is crucial for counselors. It is generally recommended that counselors maintain detailed documentation of any action in a client case, including meetings with parents and client disclosures. Counselors should be aware that if an activity is not documented, then there is no hard evidence that it happened. This aspect is important to keep in mind when a client misses appointments.

Moore and Laura R. Simpson suggested in a 2012 VISTAS article that when writing case notes, counselors should be careful to use definitive descriptive language. For example, rather than stating, “It appears the child was neglected by family,” a counselor should state, “The child disclosed that the family withheld food for three consecutive days.” Careful language prevents the counselor from being trapped on the stand by a statement made in documentation. An attorney cannot challenge the counselor on a statement made by a client; however, an attorney can question a counselor about an opinion given in documentation.

Once records are subpoenaed by the courts, counselors should document the subpoena in their records and then should immediately contact clients to inform them of the breach of their confidentially. Clients have the right to know when their confidentiality is broken because of legal proceedings. This phone call or meeting to inform clients of the subpoena should be documented too. Thorough documentation of the limitations to confidentiality will help prove the counselor acted ethically should a client seek legal counsel.

 

Pre-court preparation: Conference with attorney

Counselor educators should inform students of the necessity of meeting with the attorney who issued the subpoena so that both the attorney and the counselor are well-prepared for possible testimony. Forge and Henderson explain that during this conference, counselors can be informed about particular documents that will be needed and what questions will be asked of them during testimony. Counselors can also inform the attorney of any concerning issues about the case to prevent the attorney from being surprised during the hearing.

Cross-examination will occur from the opposing attorney during the course of a court hearing. Meeting with an attorney in advance can provide opportunities to cover questions and strategies that may be used during cross-examination. Knowing ahead of time that attorneys are being compensated to discredit the witness prior to a court hearing can keep counselors from panicking or answering defensively while testifying.

Counselor educators are likely to have little experience with cross-examination. Inviting guest speakers such as community attorneys and counselors with expert testimony experience to counseling classes can provide students with concrete examples of the cross-examination process.

 

Courtroom etiquette

Etiquette in the courtroom may appear commonsense, but it is a topic that is often overlooked. Appropriate dress and behavior should not be disregarded when preparing counselors for court because these are signs that will indicate the professionalism of the counselor. Suits or work attire is recommended. Also limit accessories that may cause a distraction. Dressing properly is one of the simplest ways a counselor can establish credibility in the courtroom.

Body language is equally significant. Body language can communicate strength or weakness. It should communicate that the counselor is confident, knowledgeable and strong. Jamie Hamlet asserts (practicenotes.org/vol12_no4/testifying.htm) that language can establish counselors’ credibility with the jury and deters the deference attorney from antagonizing them. Body language is an important component in training to be a counselor. Therefore, counselors should already be familiar with the significance of communicating positive body language on the stand as a witness. By displaying the proper posture of sitting straight and leaning forward, counselors will express assertiveness and professionalism. Facial expressions should demonstrate genuine concern and thoughtfulness.

Furthermore, counselors should speak clearly and politely to those in the courtroom. Counselors should declare with authority and conviction if they are confident about a conclusion made regarding their case. Conversely, it is recommended that counselors refrain from being argumentative or defensive if challenged by an opposing attorney. Being argumentative may be perceived as disrespectful and unprofessional.

Frequently, witnesses are not permitted in the courtroom until it is time to give their testimony because attorneys do not want proceedings from the hearing to contaminate witnesses. Therefore, counselors should be careful who they speak with and limit their conversations. Forge and Henderson warn that speaking with a witness on the opposite side of the case could cause a mistrial.

 

Answering questions during testimony

Responding to questions asked by attorneys during testimony can be very challenging and intimidating. But with proper preparation, this process doesn’t have to be so daunting. Counselor educators should teach counseling students various strategies related to answering questions in the courtroom.

Always tell the truth. This is the No. 1 concept to remember when testifying in court. Do not waver from this. Do not embellish your statements during testimony. Simply tell the truth and state the facts. If a question is asked that you do not know, merely state that you do not know the answer. Often witnesses think that they must have an explanation for each question asked of them and then feel pressured to speak. Counselors must understand that making an untruthful statement can ruin their credibility and harm the client’s case.

Community members who serve as jurors often place their trust in expert witnesses such as doctors, counselors, police officers, etc. Therefore, jurors will do their best to believe an expert’s testimony if credibility is established. If an expert witness betrays this trust by being dishonest or disrespectful on the stand, Laurence Miller states (in “May It Please the Court: Testifying Tips for Expert Witnesses”) that jurors are likely to disregard the witness testimony, harming the client’s case. Being honest and truthful increases the possibility that jurors will believe the testimony of the counselor.

Witnesses should take time to listen to the attorney’s questions and to formulate their responses. Simplicity is key. The more words that are spoken, the more questions that can be asked. If a yes-or-no question is asked, simply answer yes or no. Furthermore, the language that witnesses use should be simple. Laypeople will not typically understand the jargon used in the counseling field. Speak in a way that will be easily understood by someone outside of the profession.

Cross-examination is designed to be confrontational, causing one to feel pressured. Counselors should expect to be challenged on the witness stand. Learn not to take such challenges personally and to exhibit grace under pressure without becoming flustered or annoyed or losing your temper. Well-prepared counselors are ready to defend their opinions and remain firm on the conclusions made while testifying. This stance exhibits confidence, expertise and assurance to a judge and jurors.

Attorneys may attempt to fluster witnesses. This may involve asking numerous questions rapidly, speaking loudly and acting in an intimidating manner. When training to work with clients, counselors are expected to remain cool, calm and nonjudgmental during counseling sessions. These same skills should be applied during courtroom testimony. Educators should prepare counselors for this tactic and provide them with techniques to remain calm.

 

Conclusion

It has been established that counselor educators play a significant and vital role in educating and preparing counselors for testifying in court on behalf of their clients. Including material on court testimony in counselor education curricula protects both students and their future clients. Incorporating the topics discussed in this article into class syllabi and the overall curriculum is essential to preparing counselors to serve as competent witnesses and exceptional representatives of the counseling profession.

 

 

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Margaret Taylor is a licensed professional counselor and supervisor in Alabama, having served as a counselor for more than 10 years. In addition, she is enrolled as a second-year doctoral student in the Auburn University counselor education and supervision program. Margaret has advocated for children and testified as an expert witness in numerous courts, including in criminal trials, custody cases and juvenile hearings. She has presented at state and regional conferences, providing counselors with the necessary tools to serve as effective witnesses in court for clients and the counseling profession. Contact her at barnema@auburn.edu.

 

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.