Tag Archives: Ethics & Legal Issues

Ethics & Legal Issues

License to deny services

By Laurie Meyers June 27, 2016

In April, the Tennessee Legislature passed a bill, which the state’s governor then signed into law, allowing counselors to refuse to see any client if counseling that client involves “goals, outcomes or behaviors that conflict with the sincerely held principles of the counselor or therapist.”

The law, which is in direct opposition to the ACA Code of Ethics, was pushed through despite the concerted efforts of the American Counseling Association, the Tennessee Counseling Association (TCA) and other opponents. Even more alarming is that the legislation could represent only the beginning of efforts to pass similar laws in other states.

In response to the controversial law, the ACA Governing Council made the decision to move the Branding-Images_sky2017 ACA Conference & Expo out of Nashville and relocate it to San Francisco.

“We agreed it was important to move the conference because the Tennessee governor signed a bill into law that attacked our code of ethics and allowed counselors to refuse services to clients in the Tennessee communities based on their religious and personal beliefs,” explains Thelma Duffey, whose term as ACA president ends July 1. “We believed it was important that ACA take a public and powerful stance in opposition to this bill, and relocating provided us with this opportunity. We also believed it was important that we communicate our support to our members who voiced deep concerns about continuing to hold the conference in Tennessee in light of the new law. And, ultimately, we made the move based on our long-held belief of nondiscrimination and our commitment to advocacy for all people.”

The intent of Tennessee’s law is to allow counselors to discriminate against potential clients who identify as lesbian, gay, bisexual or transgender (LGBT), says ACA CEO Richard Yep. “This [is] a full-frontal attack on specific populations that some very conservative right-wing groups in the United States want to exclude from mental health services that they desperately need,” he says. “The new law will permit a counselor to reject an individual simply because of that provider’s beliefs and values. ACA and its code of ethics are very clear that counselors do not bring those beliefs and values into a counseling relationship.”

In addition to being unethical, the law is harmful to those looking for help, Yep emphasizes. “For someone seeking the services of a mental health provider to be told that because of who they are, a service provider will not work with them sends an incredibly negative message of exclusion, bigotry and discrimination,” he says.

Counseling in the crosshairs

When the Supreme Court ruled in June 2015 that states must recognize the validity of same-sex marriage, it marked a significant step forward in the fight for equal rights for LGBT individuals. At the same time, it also served as a clarion call to those determined to continue discriminatory policies and attitudes.

Currently, there are nearly 200 pieces of proposed anti-LGBT legislation in the United States. Like the Tennessee law, many of these proposed pieces of legislation — and other laws that have already been passed — were born partly in reaction to the Supreme Court’s decision, notes Perry Francis, who served as chair of the Ethics Revision Task Force for the 2014 ACA Code of Ethics. ACA believes that conservative politicians and lobbying groups focused on Tennessee and the counseling profession in large part because of a prior legal case, Ward v. Wilbanks.

In 2009, a counseling student named Julea Ward was dismissed from the counseling program at Eastern Michigan University (EMU) for refusing to counsel a gay client. Ward then filed suit against EMU in U.S. District Court, asserting that the university’s counseling program violated her rights to free speech and freedom of religion. In 2010, a U.S. District Court judge granted summary judgment in favor of EMU.

Ward was represented by the Alliance Defending Freedom (ADF), a nonprofit law firm that Art Terrazas, ACA’s director of government affairs, describes as the conservative equivalent of the American Civil Liberties Union. ADF is connected to the Family Research Council, a conservative lobbying organization. These organizations influence the Family Action Council of Tennessee, whose president, David Fowler, is a former Tennessee state senator who was a driving force behind Senate Bill (SB) 1556 and House Bill (HB) 1840. A group of conservative state legislators sponsored the bills, which eventually became the law signed by the governor.

The counseling profession also made an inviting target because the ACA Code of Ethics explicitly focuses on protecting clients by not imposing a counselor’s viewpoint, explains Lynn Linde, ACA’s senior director for the Center for Counseling Practice, Policy and Research. Linde, an ACA past president who also served on the Ethics Revision Task Force, notes that this focus on the client is unique to ACA. Although other organizations’ ethics codes implicitly prohibit mental health professionals from imposing their personal beliefs on clients, she says, the ACA Code of Ethics is explicit in this prohibition.

The legislation was introduced in the Tennessee Senate in January and passed with very little discussion, according to TCA President Kat Coy. It then moved on to the Tennessee House of Representatives. At that point, TCA rallied its members to contact their legislators to express their opinions on the bill, Coy says.

As the legislation was being debated in the Tennessee House, TCA and ACA worked together to provide expert testimony on the harmful nature of the bill and to educate individual legislators about the counseling profession, its code of ethics and the danger the legislation posed to those seeking mental health services in Tennessee. Although the law states that any counselor who turns away a client because of personal beliefs must give the client a referral, Linde notes that Tennessee has a critical shortage of mental health professionals. That raises questions about whom a counselor can refer to if he or she is the only mental health professional within 150 miles and, more important, where prospective clients are supposed to go to get the help they need, she says.

Linde and others testified about the harm this could do to potential clients. In the process, they also tried to clear up some mistaken beliefs that Tennessee legislators held. For example, Lisa Henderson, who chairs TCA’s public policy committee, says one of the first arguments she encountered was that because Tennessee is a sovereign state, it would not be dictated to by the federal government. Henderson had to explain that ACA is a professional organization that is not connected in any way to the federal government.

Linde and others testified that ACA’s opposition to the legislation was not about controlling individual counselors but rather concern for the harm that could be done to prospective clients. In addition, the law would be in direct opposition to the ACA Code of Ethics, which all member counselors are obliged to follow. Many states — including Tennessee — base their licensure standards of practice all or in part on the ACA ethics code.

An ethical dilemma

A common claim by those who support the law is that by asking counselors not to impose their beliefs on clients, the ACA Code of Ethics is actually demanding that counselors give up certain personal beliefs. That is an incorrect assumption, Linde says.

“Nobody is asking us to give up who we are the moment we walk into a counseling session,” she emphasizes. Counselors do not have to change their beliefs, but they must not impose those beliefs on clients, she continues.

“We, as professional counselors, seek to engage our clients in a genuine, thoughtful, caring relationship,” says Francis, a professor of counseling and coordinator of the counseling clinic in the College of Education Clinical Suite at EMU. “In order for me to connect to a client, I need to know who I am and what my personal values are so that I can be genuine in the room. At the same time, the profession is saying to counselors that you also enter the room with the values of the counseling profession, which are clearly delineated in the code of ethics.”

Francis says a counselor’s responsibility is spelled out in the ACA Code of Ethics in Standard A.4.b. (Personal Values): “Counselors are aware of — and avoid imposing — their own values, attitudes, beliefs and behaviors. Counselors respect the diversity of clients, trainees and research participants and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.”

Many of those who supported Tennessee’s “sincerely held principles” legislation asserted that ACA changed its code of ethics regarding counselors’ personal values during the 2014 revision in response to Ward v. Wilbanks. Francis and Linde say that assertion is false.

“We clarified what has [long] been there,” Linde says. From the 1988 version onward, the ethics code has stated that counselors can refer clients only when a client is no longer progressing, when the counselor’s services are no longer required because the client has met his or her goals or when counseling no longer serves the client, Linde explains.

Anticipating that some might try to argue that a counselor who holds views diametrically opposed to what the client believes is not “competent” to counsel that client, the 2014 revision of the ethics code clarified the issue of referral, Linde and Francis explain. Standards A.11.a. and A.11.b. were added to further delineate what constitutes competency.

v A.11.a. (Competence Within Termination and Referral): “If counselors lack the competence to be of professional assistance to clients, they avoid entering or continuing counseling relationships. Counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. If clients decline the suggested referrals, counselors discontinue the relationship.”

v A.11.b. (Values Within Termination and Referral): “Counselors refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs and behaviors. Counselors respect the diversity of clients and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.”

In addition, Standard A.4.b. was expanded to include the necessity of obtaining training and multicultural competency, Francis says.

Linde says ACA’s official position is that although counselors in Tennessee are now legally able to refer clients on the basis of personal beliefs, that action still goes against the profession’s code of ethics. Accordingly, ACA will still sanction any member who engages in such behavior, Linde emphasizes. This also applies to counselors-in-training at university or college programs.

Linde testified in detail for legislators on the issue of competence. “Counselors can’t refer due to client characteristics,” she says. “It’s on [the counselor] if you come from another country and I don’t know anything about you or your culture. I have to educate myself on your culture.”

However, if a client comes to a counselor with a problem or issue that the counselor is not qualified to treat based on his or her individual scope of practice, then referral is appropriate. For example, Linde says, a client might present to a counselor for treatment of depression. In the course of therapy, the counselor might realize that the heavy drinking the client is engaging in is due to a chronic substance abuse problem, not just self-medication. Unless the counselor is specially credentialed to provide substance abuse counseling, the counselor would be operating outside of his or her scope of practice to offer those services. In this case, the counselor should instead refer the client to another counselor who is qualified to provide in-depth substance abuse services.

Values clash

Henderson, a private practitioner in the Nashville area, says that when she met with individual legislators about the “sincerely held principles” bills, it appeared that some of them already had their minds made up. When presented with the ethics testimony, she says, many of these legislators argued that it was impossible for counselors to separate themselves from their beliefs. They also rejected a primary counseling value of putting clients first, Henderson says.

“I kept reminding them that these are complex issues,” says Henderson. She points out that even though it takes years to become a professional counselor, the legislators were making decisions about the counseling profession based on a few hours’ worth of knowledge gleaned in hearings and meetings.

EventhoughDuring efforts to defeat the legislation, Henderson acknowledges that she also encountered some counselors in Tennessee who supported it. The most common reason given was the counselors’ religious beliefs, she says. For example, one counselor told Henderson that he could not separate his religious beliefs from his counseling values. So, if a client came to him for treatment of alcoholism and wanted to use harm reduction, the counselor — who believes it is wrong to drink or take drugs — would only agree to treat using complete abstinence. Another counselor said she would not be able to counsel someone committing adultery unless that person pledged to end the adulterous relationship.

Francis says another common explanation or justification for values-based referrals is that a counselor who has a conflict with a client’s lifestyle or choices might not provide the best service or even cause harm. “This is a perfectly valid concern and is upheld in the ethics,” he says. “We don’t want to cause harm. We don’t want to put the client in any sort of jeopardy.”

However, Francis explains, the flaw in that reasoning is in assuming that the problem resides with the client. Instead, it is the counselor who needs to make adjustments and seek supervision, consult with trusted colleagues or get additional training to better serve the client.

Ultimately, it is those seeking mental health services who will be harmed by the passage of the legislation. “In rural Tennessee, or anywhere in the state that is listed as a mental health shortage area, there simply are not enough providers,” says Catherine B. Roland, who begins serving as ACA president July 1. “So, if a counselor is allowed to pick and choose who they will see simply due to a strongly held belief or value, those most in need of services will have nowhere to turn.”

The law is also written very broadly, which leaves it open to individual interpretation, Terrazas notes. “Initially the bill covered religious beliefs, but the wording was changed to ‘sincerely held principles,’ which could be broadened to include almost anything that a counselor disagrees with,” he says.

Duffey agrees. “People seeking mental health services can potentially be affected in any number of adverse ways as a result of this law,” she says. “For one, they are now aware that a law exists that protects counselors from working with them if the counselors’ beliefs conflict with who they are. That is profound. In a time where so much progress is being made with respect to equality and human rights, this bill may bring a painful resurgence of old feelings of rejection and discrimination and feelings of social exclusion.”

Current and future implications

Although those who defend the law often cite religious concerns for doing so, TCA leaders say many of their members who are Christian counselors have vowed not to use the law to discriminate.

In fact, other counselors have cited their religious beliefs as a reason not to discriminate. “[The Tennessee law] is an affront to the heart of Christianity,” says Ryan Thomas Neace, an ACA member and counselor practitioner in St. Louis. “The Scriptures reveal that those whom the religious folks said weren’t towing the line — not observing religious rituals or laws, not living up to sexual and moral purity codes by having sex too much or with the wrong people or drinking too much, etc. — those people were often far more hungry for genuine, transformative encounter than the religious folks themselves. This is why Jesus kept their company so much.”

Neace, who has been practicing for almost 14 years, cites his experience as an example of how harmful the law is to clients and to the counseling profession’s ideals. “By the time many of my LGBTQ+ clients show up at my office, they’ve already been hounded by unsupportive, and often abusive, friends, family, religious communities and sadly, professionals,” he says. “This law makes the sacred space that we offer as counselors less sacred and less spacious.”

There are already many barriers that discourage potential clients from reaching a counselor’s office, Neace says, and research suggests that LGBT individuals face even more obstacles. In Neace’s opinion, the obstacles the Tennessee legislation has erected for LGBT clients “are perhaps more akin to land mines.”

Unfortunately, Neace says, some counselors don’t seem to comprehend the precedent — and the slippery slope — that this law sets. “In a more long-term sense, it literally opens the door for clients to be denied therapy if they in some way represent an affront to anything counselors sincerely or principally believe,” he says. “This actually could, in my case, extend to me as a Christian. Someone could refuse to see me because of my religious beliefs. It’s hard to understand that religious folks who back this bill don’t see that it ushers in opportunities for the very persecution they hope to avoid.”

Keith Myers, a licensed professional counselor and ACA member, wrote an opinion piece for USA Today in May in which he highlighted some of the potential consequences of the law that its advocates might not have anticipated. “Imagine that Joe, a veteran who served our country faithfully, comes to counseling at a rural Tennessee practice,” Myers wrote. “He talks about his strong opinions concerning the Islamic State terrorist group and ways the military should be intervening. His male counselor happens to be a pacifist. This counselor has strong feelings against any kind of war or any type of military intervention against ISIL. Before the new law, he would have felt obligated to help Joe. Now, he refers Joe to another counselor 25 miles away from where Joe resides. Joe becomes angry and ultimately avoids getting help. The harm has been done.”

Henderson has already seen an effect. “After the news broke that the bill had been signed into law, one of my own clients asked if I would continue to see her now that I don’t have to,” Henderson recounts. “And this is a person who I already have an existing relationship with.”

One of Henderson’s counseling colleagues shared another story related to the passage of the law. During a client intake, the client asked questions about how the counseling process worked but also asked how long it would be before the counselor might decide not to work with the client any longer. The client wanted to know what he would do if that happened.

Counselors who practice in other states might question why they should be overly concerned about what is happening in Tennessee. “Quite simply, if it can happen in Tennessee, it can happen in any state in the union, making it an issue for all counselors,” Roland says. “One only needs to realize that the anti-LGBTQ legislation in so many states continues to grow. Those who believe in an anti-LGBTQ agenda are passionate and are using the legislatures and courts in this country to make their voices heard. ACA stands in support of the counseling profession and the consumers who seek our services — all consumers.”

The law could also contribute to misperceptions that go beyond what is happening in Tennessee. “This bill is problematic for counselors who hold religious beliefs and also support our code of ethics,” Duffey says. “The discussions around this issue can create misunderstandings and generalizations, with suggestions that faith-based counselors are, in principle, discriminatory. This is, of course, unfair and inaccurate, and runs the risk of creating division where it doesn’t exist.”

Terrazas says there is a danger that similar legislation could be proposed in other states and notes that ACA Government Affairs is maintaining a very watchful eye.

Seeking solutions

With the “sincerely held principles” legislation being signed into law in Tennessee, what happens next? ACA and TCA are taking a number of steps.

“We are certainly starting to pick up the pieces of what has transpired over the past several months and focusing on the future,” Coy says. “We are aware that there are varying opinions in Tennessee, and we will need to navigate through all of that in the coming months. Our ultimate goal shall remain meeting the needs of our membership and focusing on the needs of our clients.”

At July’s state leadership institute, TCA plans to focus on educating its members about what happened and encouraging them to in turn educate the public on the issues, Coy says. TCA’s annual conference in November will be devoted in part to additional education and training and to deciding what the association’s next steps should be.

When she was interviewed near the end of May, Coy said the rest of TCA’s plan of action was under development. “We will be sending out a survey to membership asking them what they want,” she said. “Our initial ideas will be training in the form of webinars, single-event training opportunities, podcasts, training bulletins and continued membership development.”

On the national level, Terrazas says that ACA Government Affairs is encouraging counselors in all states to get to know their legislators. The purpose is not only for counselors to be aware of what bills are being proposed in their states but also to educate legislators about counseling and what counselors do, he says.

The ACA leadership also wants counselors in Tennessee to know that even though the 2017 ACA Conference is being relocated from Nashville, the association is not abandoning the state’s practitioners. “ACA stands ready to assist with grassroots advocacy and to provide materials to Tennessee counselors who seek resources that will help the public policy officials understand the deleterious effects of this new law on the citizens of Tennessee,”
Yep says.

“We will continue to work with our colleagues in Tennessee in hopes that this law can be overturned,” Roland says. But she also offers a caution: “We cannot for a moment forget about the other 49 states where efforts like these can arise quickly and without notice.”

Despite the potential damage caused by the “sincerely held principles” law in Tennessee, Duffey believes the counseling profession will eventually emerge stronger than ever. “I absolutely believe we will ultimately be stronger as a result of our decision [to relocate the ACA Conference] and the unity we are experiencing through this advocacy,” she says. “I have been heartened by the outpouring of support for the Governing Council’s decision and by the appreciation of those members who courageously shared their stories and concerns. In fact, people who often vigorously debate other issues have come together on this one — in support, with clarity and with a sense of pride.”




Does the ACA Code of Ethics trump discriminatory institutional policies? Read the July issue of the Journal of Counseling & Development, featuring three articles in the special Trends section that discuss the ethical issues raised by the practice of accrediting counseling programs at colleges and universities that use statements in their Codes of Conduct that are nonaffirming of LGBT individuals.




Laurie Meyers is the senior writer for Counseling Today. Contact her at lmeyers@counseling.org.

Letters to the editor: ct@counseling.org


The case for animal-protective counseling practice

By Peter Wollheim October 27, 2014

As counselors know, the ethical and legal requirement of the “duty to warn” has been adopted as a standard of care across many helping professions. It probably represents one of the most universal Photo of dog with personelements of counseling ethics regardless of cultural or national identity. Based on the Hippocratic notion of “first, do no harm” or avoidance of malfeasance, this duty is considered strong enough to override considerations of client confidentiality. In the 2014 ACA Code of Ethics, Standard B.2.a. notes that confidentiality is not guaranteed “when disclosure is required to protect clients or identified others from serious and foreseeable harm.”

Unfortunately, the ACA Code of Ethics does not define harm, which could conceivably encompass financial fraud, verbal abuse, sexual seduction or unjustified termination of employment. But even more noticeably absent is any explicit duty to warn or protect should a client self-disclose current or future intent to maliciously injure animals or elements of the natural environment. These are excluded from the category of “identified others.”

I would like to present the case that a species-centric definition of such “others” requires serious re-examination given a number of important developments:

  • Neurobiological research on animal consciousness and experiences of pain
  • The promotion of animal-assisted psychotherapy and counseling
  • The growth of the animal rights movement and increased attention to humane slaughtering practices
  • Greater awareness of the mental health benefits of animal companionship

In general, it appears contradictory, if not hypocritical, to employ animals as co-partners in counseling and therapy while not defending their welfare within the context of counselor-client relationships.

Extending our ethical considerations

Much of our profession’s ethics, such as the core value of autonomy, rests on the formal philosophy of Immanuel Kant. His theories taught that moral agents should be treated as ends in themselves rather than means to an end. Avoiding exploitative relationships, maintaining confidentiality, providing competent services, avoiding and correcting discriminatory practices, and respecting the rights of research participants all reflect the Kantian emphasis on the intrinsic value of the individual as an ultimately self-defining “who” rather than a “what.” Even the use of the term duty in ethical codes comes directly from Kant.

The injunction to recognize and respect the subjectivity of each client argues for the most basic ethical adage, “Do unto others as you would have them do unto you.” It also encourages those empathic insights and sense of “fellow-feeling” that are so crucial to the therapeutic alliance. You cannot act upon the Golden Rule without a basic recognition that others experience pain in ways similar to, if not identical to, you.

A similar idea underlies Martin Buber’s distinction between relationships based on the authentic “I-Thou” and the impersonality of “I-It.” That existential perspective has also shaped much of psychotherapy. In terms of psychopathology, the inability to experience interpersonal empathy often indicates narcissistic, sociopathic and antisocial personality disorders. Even Kant argued that cruelty to animals deadens feelings of compassion in people.

Unfortunately for animals, Kant did not extend his ethical considerations to non-human beings. Like most Enlightenment thinkers, he believed that only humans demonstrate the logical capacity and free will to act as moral agents. This line of thought was preceded by rationalist philosophers from Aristotle to Descartes, and metaphysicians from Plato to Judeo-Christian theologians who denied that animals possess consciousness or a soul.

But surely we as counselors should refute this perspective. For starters, the standard of full rationality and free will doesn’t entirely fit clients who are dealing with thought disorders, depression, developmental disabilities, schizophrenia and schizoaffective disorder, autism spectrum disorders, Alzheimer’s, states of intoxication or, for that matter, childhood and adolescence. Yet those whom philosophers ill-advisedly called “marginal human beings” enjoy full respect and protection under the ACA Code of Ethics.

Furthermore, current research in ethology, primatology, comparative neurology and consciousness studies increasingly demonstrates that moral consciousness is a difference of degree rather than kind. An increasing number of studies provide evidence for various dimensions of mental complexity across several species, including schema construction, tool making and use, abstract reasoning, self-consciousness and mathematical abilities. Highly social and mutually cooperative animals such as those that congregate in extended families, herds or troops demonstrate empathy, altruism, forgiveness, levels of ethical decision-making and perhaps that most social and moral emotion of all — shame. Examples include rodents, canines, elephants, chimpanzees, orangutans and baboons.

The evidence that animals experience pain is growing rapidly as well, even as it still generates considerable debate. Whatever one’s personal stance on this issue, modern animal-handling techniques recognize the importance of considering such questions in actual practice. The increased use of humane slaughter and hunting techniques, championed by Temple Grandin and others, is based on measurable indicators of suffering such as neurochemical stress reactions and learned avoidance of pain. The American College of Veterinary Anesthesiologists has also considered this matter deeply and issued a list of behavioral and physiological indicators of animal distress.

Protecting our counseling colleagues

Even more directly, the use of non-human beings as adjuncts or co-therapists is acknowledged under labels such as “animal-assisted activities” (AAA) and “animal-assisted therapy” (AAT). It has Young child receives animal-assisted therapy from counselor and doglong been noted that the simple companionship of domesticated animals helps reduce human stress levels, lowers blood pressure and elevates morale and feelings of well-being. Animal-based counseling practices take these benefits to higher levels. AAA and AAT currently employ a long list of species, including dogs, horses, rabbits, birds, reptiles and fish.

Section D of the ACA Code of Ethics (“Relationships With Other Professionals”) lays out specific obligations counselors have to their professional colleagues. The introduction to this section states in part, “Counselors develop positive working relationships … with colleagues to enhance services to clients.” Standards D.1.b. (“Forming Relationships”), D.1.d. (“Establishing Professional and Ethical Obligations”) and D.1.h. (“Negative Conditions”) carry these implications forward as well.

To pose the question directly, how have animals not served as colleagues to the counseling profession? From the development of behaviorist theories to clinical trials of psychotropic medications, from Harry Harlow’s experiments on social isolation with rhesus monkeys to neurosurgery studies on brain function, animals have been recruited to provide important insights into learning, sociability, substance and process addiction, and the proper use of psychopharmaceuticals.

In practice it seems difficult to defend any human counselor who employs non-human adjuncts yet fails to act on behalf of their welfare. The continuity and emotional bonding of the client-assistive animal relationship obviously depends on the health and longevity of the animal in question. In these sorts of relationships, animals are not interchangeable. Clients would surely suffer from grief reactions due to the sickness, injury or death of individual non-human companions or co-therapists.

Moral considerations aside, it’s self-defeating to ignore the documented and even predictive associations between animal torture and serious psychopathology. There are high levels of uncertainty in forecasting client violence, but a growing body of evidence links animal cruelty to antisocial personality disorder, antisocial personality traits, polysubstance abuse and potential for serial homicide. Malicious harm to animals also appears indicative of early childhood trauma, current domestic violence and developmental disabilities. Animal hoarding often symptomizes obsessive-compulsive or borderline personality disorders. The extent of these associations is so high that many states mandate psychiatric assessment for all individuals charged with violating animal cruelty laws.

Other considerations

Critics may object that an animal-protective policy fails to respect cultural sensitivities. So-called blood sports have enjoyed popularity around the globe. The animals involved in staged gladiatorial contests range from bulls and cocks to dogs, rats, fish and even insects. The most hotly debated example remains the corridas, or bullfights, that some have branded as sadistic but that proponents defend as central to Spanish and Mexican national identity. Fox hunting has raised parallel concerns in the United Kingdom. Animal racing and rodeos are subject to similar controversies.

Yet amateur and professional associations of hunters, anglers, circus owners, race course owners, rodeo and bull fight organizers and even pest exterminators have published ethical guidelines meant to minimize pain to creatures that are either used for sport or subject to systematic killing. Fans of corridas, for example, prize the “clean kill,” just as ethical hunters advocate the doctrine of “fair chase.” Fly fishers argue for “catch and release,” while the United Kingdom’s Masters of Foxhounds Association insists that quarry be “quickly and humanely dispatched.” If such organizations provide ethical protection for animals, why should the American Counseling Association lag behind?

It must be noted that attention to the welfare of animals does not guarantee empathy for fellow human beings. One of the strictest and most comprehensive pieces of governmental legislation in this area was the 1933 law on animal protection, enacted by the top leadership of Nazi Germany. Almost immediately after coming into power, the Third Reich banned vivisection and tail docking, animal trapping, the killing of wolves and inhumane slaughter practices. The Nazis also promoted public school education in support of these policies.

Thus, extending consideration to animals does not by itself ensure the ethical treatment of people. But with the ACA Code of Ethics so firm in its resolve to underscore the universality of human rights and welfare, this historical aberration need not determine the limits of moral discourse. To the contrary, it should encourage a greater respect for the variety and multitude of creatures that experience a demonstrable inwardness and subjectivity.

Considering animal welfare encourages more deliberate and contextual thinking about how counseling clients function within their own web of significant relationships that includes family, occupation, political structures, mental health care delivery systems and the natural environment. But the counseling profession, like so many others, generally operates in an urbanized society characterized by an increasing separation of people from nature. Consider that even in the “Dimensions of Personal Identity” document that used to be offered on the ACA website, relationships with biota were never specified. And the place of animals in people’s lives was barely touched upon in the CACREP-accredited program from which I graduated. Yet, ironically, ecotourism opportunities and appeals to travel to unspoiled wilderness areas are sometimes touted in advertisements for ACA annual conference sites.

What all of this argues for is incorporation of animal-related considerations into any future drafts of the ACA Code of Ethics. At the very least, it urges all counselors and counseling agencies to adopt specific policies within their practices. For example, under my personal “statement of clients’ rights” Dog being pettedthat each client signs after review, we list the standard reasons for violating confidentiality. But we also add the following: “Please note that if clients reveal current or intended malicious harm to animals such as torture or neglect, we will need to consider reporting such activity to law enforcement or animal protection agencies.”

To date, I have never had to violate confidentiality on the basis of any client self-disclosing deliberate and malicious harm to animals. But at the very least, the policy does serve as a reminder of the essential “creatureliness” that clients and clinicians share as we engage in treatment together. It also reminds us that the genuine love that clients and animals often share for each other offers a model for experiencing trust, deep connection, unconditional love, pleasure, play and perhaps even joy. Such a wellspring of healing deserves the protection of ethical principles and professional practices.

Perhaps ACA will eventually recognize this in formal policy terms, having missed the opportunity in the 2014 revision of its ethics code. Until that day, those of us in private and agency practice can move ahead on our own.


Peter Wollheim is a licensed professional counselor in Idaho and the founder of Mental Health Boise. Contact him at peter@mhboise.com.

Letters to the editor: ct@counseling.org


Equality: The only value acceptable in session

By Quinn K. Smelser May 8, 2014


“Counselors do not condone or engage in discrimination against prospective or current clients, students, employees, supervisees or research participants based on age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital/partnership status, language preference, socioeconomic status, immigration status or any basis proscribed by law.”


The above is not an excerpt from a political speech. It is not a suggestion from a more liberal-minded counselor. It is not a tagline from a book. It is Standard C.5., titled “Nondiscrimination,” of the ACA Code of Ethics. As licensed professional counselors (LPCs), we agree to this statement as part of our practice.

Recently, counselors, activists and others gathered for the first Human Rights Campaign Time to Thrive Conference to promote inclusion and safety for LGBTQ youth. The past year has seen several states adopt same-sex marriage laws or overturn outdated bans, including a ruling by a federal judge in my own state of Texas. LGBTQ allies are standing up for equality all across the country. Our ACA president, Cirecie West-Olatunji, sent a letter to Arizona Gov. Jan Brewer in late February asking her to veto legislation that would have allowed LPCs to refuse treatment to members of the LGBTQ community based on a counselor’s religious values.

equalityOf the many theories and ideas I learned in graduate school, a belief in equality is one that guides me not only as a new professional, but also as a citizen of the world. I thought that other counselors shared in this conviction, but I was recently proved wrong.

Shortly before I graduated my master’s program, I attended a training approved for CEUs on marriage and family therapy at a faith-based counseling agency. I was pursuing a job that was offered to me as an LPC-intern, and this training was a requirement for me to qualify for the position.

The training presented a relational model to help couples remove pain and condemnation from past and present relationships in an effort to feel deeper love and connection with one another. Because I believe we are relational beings and I agree that pain caused by one person can get projected onto other relationships, I began the first hour of the workshop wearing some thick rose-colored glasses.

The presenter reiterated that these principles were biblically based, but applied to anyone. I am a practicing Episcopalian, but I was concerned about the plethora of biblical passages quoted throughout the workshop manual. I thought these passages might invite a counselor to impose values onto a client, thereby limiting the therapy’s use with diverse populations. But like I do in every session with my clients, I sought to view the training from the presenters’ perspective, enter their world and see what their model was about.

I learned this model was built on how a husband and wife can love each other better as Jesus Christ would want. There were breakout sessions on applying the therapy to single adults and married couples experiencing infidelity, but that was the breadth of the diversity presented. There were no examples of divorced couples, cohabiting couples, newly bereaved widows or widowers, single parents or same-sex couples. I started questioning the motivation behind this therapy. At the end of the first day of the workshop, we were asked to write any questions we had on a note card. Questions were to be answered the following day. So, I began jotting down some thoughts.

At the end of that second day, I asked how to apply this model to single parents, or to the newly bereaved or with same-sex couples. And I asked if the agency where the training was being held saw same-sex couples that might want to strengthen their relationship with each other and with God or their higher power.

The presenter took quite a few deep breaths before answering. He started off by saying that he couldn’t see why this model couldn’t be applied to same-sex couples. I breathed a sigh of relief. But then he continued his answer. For him, individuals “choosing” to act on those “kinds of urges” would not be seen at his agency. In fact, he said, he had a lesbian couple come to him once, but he referred them out because he was “not an expert on that kind of thing.” However, he said, he also had a client who told him he was having thoughts and urges about having a same-sex relationship. The presenter continued to talk about how he most certainly helped that client rid himself of those “kinds of sins.”

ACA’s website states that “the belief that same-sex attraction and behavior is abnormal and in need of treatment is in opposition to the position taken by national mental health organizations, including ACA.” Conversion or reparative Therapy is a deplorable practice that approaches same-sex attraction as a mental disorder and attempts to change the client’s sexual orientation. What this presenter seemed to state was that he practices conversion therapy.

When our clients hold a discriminatory belief, we are obligated to respect them, but it becomes a totally different issue when professional counselors conduct therapy with a biased and discriminatory mindset. Professional counselors are in a position of power, and with power comes the possibility of causing serious harm. Putting the word Christian in front of your title as a licensed counselor does not give one free rein to impose values. While someone may feel it is just to pick and choose what parts of the Bible to quote as fuel for hatred, choosing bits and pieces of the ACA Code of Ethics is not an option. Licensed professionals must uphold ethical standards.

After the training, I talked to the supervisor at the agency where I was pursuing the job. She told me that there is a “real world” and the world I was taught in graduate school, that the two are different, and that her agency would likely hold the views of the presenter at the training. Needless to say, I didn’t take the job.

In the face of this type of discrimination, what are we supposed to do as licensed professionals? What is our responsibility to our clients? What is our responsibility to our profession? What is our responsibility to humanity?

When we choose to simply accept this cynicism and hate as a reality, we are not being true to our five moral principles as prescribed by Kitchener — autonomy, nonmaleficence, beneficence, justice and fidelity. We are also not being true to our Rogerian foundation of providing our clients with unconditional positive regard.

Professional counselors must work to uphold our ethical standards to promote the best care for our clients and work against discrimination. By not standing up to other counselors who are holding these discriminatory views, we as a profession are contributing to the oppression of the LGBTQ community. We cannot just say that our code of ethics aims for multicultural competence; we must act on this. If our profession is going to attain the respect and value it deserves, we must as members of ACA truly “[embrace] a multicultural approach in support of the worth, dignity, potential and uniqueness of people within their social and cultural contexts,” as the preamble to the ACA Code of Ethics states.

When we become counselors, we are agreeing to constantly re-evaluate our own views, avoid imposing our beliefs onto our clients and expand our own self-awareness. This reevaluation of ourselves as counselors should be a never-ending process. Putting faith-based, biblically based or Christian in front of the title counselor doesn’t warrant that process to stop, nor does it entitle the counselor to discriminate.




Quinn K. Smelser, a national certified counselor and licensed professional counselor-intern, is a counselor in Austin, Texas, and a graduate of Texas State University and the University of Texas at Austin. She counsels families and at-risk youth in central Texas.  She is also a member of the Human Rights Campaign’s Federal Club and the Austin-area gala committee. Contact her at qksmelser@gmail.com.

Resolution of EMU case confirms ACA Code of Ethics, counseling profession’s stance against client discrimination

By Heather Rudow January 9, 2013



In December, after years of litigation, the court case Julea Ward v. Board of Regents of Eastern Michigan University was resolved. The resolution upheld the university counseling program’s policies and confirmed the ACA Code of Ethics as the guide for defining ethical behavior for professional counselors. The case also reiterated that equal rights and social justice remain key pillars of the counseling profession.

“The resolution of the lawsuit leaves the university’s policies, programs and curricular requirements intact,” said Walter Kraft, vice president for communications at Eastern Michigan University (EMU), in a press release. “The faculty retains its right to establish, in its learned judgment, the curriculum and program requirements for the counseling program at Eastern Michigan University. EMU has made the decision that it is in the best interest of its students and the taxpayers of the state of Michigan to resolve the litigation rather than continue to spend money on a costly trial. The matter has been resolved in the amount of $75,000. The university’s insurance company, M.U.S.I.C. (Michigan Universities Self-Insurance Corporation), will pay the cost of the settlement.”

The case began in 2009, when then-student Ward began her practicum at EMU. Upon reading the file of a client to which she was assigned and finding he had previously been counseled about his same-sex relationship, Ward, a conservative Christian, notified her supervisor that, in accordance with her religious beliefs, she would not be able to counsel the client and needed to refer him to someone else.

Ward’s supervisor canceled the counseling session and scheduled an informal review, during which EMU faculty members explained to Ward that she needed to abide by the university counseling program’s policies and curricular requirements, which adhere to the ACA Code of Ethics. The ACA Code of Ethics states that “counselors may not discriminate against clients on the basis of age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital status/partnership, language preference, socioeconomic status or any basis proscribed by law.” This meant Ward was required to set aside her personal beliefs and values when working with clients during practicum.

Given the choice of completing a remediation program, leaving the EMU counseling program or requesting a formal hearing, Ward chose the hearing. As a result of the formal hearing, she was dismissed from the program for violating the ACA Code of Ethics.

Ward sued EMU for her dismissal with the backing of the Alliance Defending Freedom (ADF) — formerly the Alliance Defense Fund — an organization of Christian lawyers that also assisted in another counseling student’s case at Augusta State University that revolved around counseling clients who are lesbian, gay, bisexual or transgender (LGBT).

According to the EMU press release, “The ADF lawsuit sought to stop [EMU] from enforcing its policies prohibiting discrimination and requiring the students in its counseling program to counsel students in conformance with the code of ethics of the American Counseling Association.”

ACA provided expert testimony for the case, which the judge quoted when granting the summary judgment in the decision.

On July 27, 2010, the U.S. District Court for the Eastern District of Michigan granted summary judgment in favor of EMU, which Ward appealed. She made her oral arguments on Oct. 4, 2011, and on Jan. 27, 2012, the 6th Circuit Court of Appeals sent the case back to district court for a jury trial. ACA Chief Professional Officer David Kaplan spent a morning being deposed for the scheduled trial.

In December, Ward officially left the program.

“Personally and as a department, we are pleased that the lawsuit is settled,” says Perry Francis, counseling professor and counseling clinic coordinator at EMU. “It has taken a great deal of time and energy to defend ourselves, and now we can continue to focus on educating our students to become excellent clinicians in the mental health profession.”

Francis believes implications from the court case are clear, showing that counseling is “best accomplished by entering into the world of the client, valuing that client as a worthwhile individual who deserves [our] nonjudgmental care and concern. That has been what we teach to our students; it drives our policies and is a reflection of the professional values and ethics of the counseling profession. To accomplish this, we teach our students how first to become aware of their own values and issues, how to bracket off those values and issues that would interfere with client care and then to enter into the client’s world to help him or her develop into the best person he or she can be.”

Kaplan echoed those sentiments. “ACA is pleased that the settlement leaves intact the district court ruling that fully supported Eastern Michigan University’s gatekeeping function in dismissing a student who refused to counsel an [LGBT] client, the right for CACREP to require adherence to the ACA Code of Ethics and the nondiscrimination statement within the ACA Code of Ethics,” Kaplan says.

Pete Finnerty, president of the Association for Lesbian, Gay, Bisexual and Transgender Issues in Counseling, a division of ACA, says the case was especially relevant for LGBT individuals, who are often marginalized and discriminated against.

“Eastern Michigan stood strong for nondiscrimination and should be applauded for doing so,” Finnerty says. “When Julea Ward refused to counsel a gay man, she was discriminating against an individual for religious reasons. This not only shows a refusal to move past her own values but also creates an environment where it is impossible for all persons to have equitable treatment under policies long in effect at university and community levels.”

Because of the lawsuit, EMU has also come under fire from Michigan legislators, Finnerty adds.

“Two bills within the last few years, including the recently shelved SB 975 …  sought to make it illegal for Eastern Michigan and all other educational institutions in the state to enforce its nondiscrimination policies by allowing medical and mental health professionals to refuse service based upon ‘conscience,’” he says. “This bill nearly made it to the governor’s desk but was not voted on in the House before the end of the legislative session. There was specific language in this bill that targeted educational institutions [that] utilize a nondiscrimination policy. The language noted penalties and fines for enforcing nondiscrimination clauses.”

Finnerty notes the likelihood exists that similar legislation could still come about, however, because other freedom of conscience bills were passed into law in states such as Arizona.

In 2011, Arizona passed HB 2565, which prohibits schools from disciplining a student in a counseling, social work or psychology program if the student refuses to counsel a client about goals that conflict with the student’s “sincerely held religious belief.” In 2012, the state passed SB 1365, prohibiting the denial, suspension or revocation of a person’s counseling license or certification for “declining to provide any service that violates the person’s sincerely held religious beliefs, expressing sincerely held religious beliefs in any context, as long as services provided otherwise meet the current standard of care or practice for the profession, providing faith-based services that otherwise meet the current standard of care or practice for the profession, making business-related decisions in accordance with sincerely held religious beliefs, including employment decisions, client selection decisions and financial decisions.”

In Michigan, SR 66, a resolution to enact legislation protecting the rights of conscience of students seeking counseling degrees and licensed professional counselors, calls out ACA directly: “Whereas, the American Counseling Association, a private organization that promulgates a code of ethics widely used by university counseling programs and state licensure boards in training for and regulating the counseling profession, has publicly supported universities that have punished or dismissed students for adhering to their sincere religious convictions.”

However, says Finnerty, “The conclusion to [Julea Ward v. Board of Regents of Eastern Michigan University] is a win for the LGBTQQIA community, as those who serve this population were activated to defeat the legislation and not allow anti-gay groups to press their agenda upon the counseling profession that holds equitable and fair treatment as paramount to counseling. LGBTQQIA clients can be sure that counselors will continue to be trained through a multicultural lens where nondiscrimination and personal growth, not a counselor’s personal values, is pertinent to the counseling relationship. For counselors and educators, this shows that believing in a world that values nondiscrimination and diversity is still very much a plausible reality and must be continually strived for.”

Says Francis, “We as a profession must continue to teach these professional values to our students so they can have a positive impact not only on our clients’ lives but on the society as a whole.”

To learn more about the case, visit emich.edu/aca_case


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.

Your witness

Stacy Notaras Murphy February 21, 2011

A summons calling a counselor to court brings with it enumerable questions and anxieties. What should you say to the judge? How should you present your credentials? Is it ethical to answer the opposing attorney’s questions?

These concerns are enough to make some counselors avoid the court system altogether. But others have found that providing expert witness testimony complements their skill set and ignites their curiosity even as it helps to build their bank accounts.

The evolution from feeling fearful of the legal field to being fulfilled by its many opportunities is likely to include specialized training, anecdotal research and good old trial and error. Most counselors who have spent a significant amount of time in court as an expert witness will attest that the latter has a strong effect.

“My first court experience was a sex abuse case,” says Richard Stride, a psychologist and licensed professional counselor in Wenatchee, Wash. “The attorney that asked me to help didn’t prepare me at all. In Colorado at the time, in order to be qualified as an expert witness, the attorneys had to ask you questions, cross-examine you and then agree. I had no idea that that process was happening. There were six attorneys on the opposing side. It was a grueling process.”

As a result, Stride, who has specialized in forensic mental health since 1995, always brings what he calls a “court notebook” that includes his résumé, transcripts and validity and reliability data concerning any psychological test he has administered in the case. “I have all that information at my fingertips because I came in for my first experience very unprepared,” he says. “I couldn’t remember every class I’d ever taken — and they do ask those questions to disrupt your testimony and disqualify you.”

Which kind of witness?

Betsy Neely, an American Counseling Association member who teaches in the Forensic Psychology Department at Argosy University in Atlanta, has developed a workshop to help counselors understand their role in legal proceedings. “When someone from the helping professions enters the courtroom, they are entering a different culture,” she notes. “They don’t understand why the questions they would like to answer have not been asked, or why the questions they have been asked are not the ones they’d like to answer. It can be very frustrating.”

In Georgia and many other jurisdictions, Neely explains, a significant difference exists between expert witnesses and “lay witnesses” or “witnesses of fact.” Mental health experts must be qualified as “legal experts” and demonstrate a mastery of the research in all the areas in which they are testifying. As such, these expert witnesses can draw conclusions about a case, but often they have little personal connection to the complainants and defendants in a case. In contrast, mental health lay witnesses commonly are in direct contact with the members of the case, frequently serving as their counselors well before the legal system became involved. These witnesses are not allowed to draw conclusions and must rely only on the facts of their interactions with their clients.

Neely offers the example of a fictional child custody case. “If you’re just being a fact witness, a caseworker or case manager, then your testimony is going to be limited to whether there’s food in the fridge, if the house is clean, if the mother’s eyes were red. You can only say, ’These were things that I observed.’”

Anne Marie “Nancy” Wheeler, an attorney who operates the ACA Insurance Trust’s risk management helpline, says she frequently gets questions from counselors about serving as witnesses in court cases. “Perhaps someone’s being harassed on the job and that client comes to you because she’s having trouble dealing with it all. Later on, her attorney wants you to testify, and he will label you as an expert witness, asking you to render an opinion about the situation,” explains Wheeler, coauthor of The Counselor and the Law, published by ACA. “If it’s truly in your client’s best interest for you to testify, it makes more sense to be a witness of fact, and not an ’expert,’ which implies that you’re neutral. How can you be neutral when you’re really doing it for your client?”

“The role of an expert presumes there’s a non-bias that the court can rely on to make a decision, but I think a lot of attorneys confuse the roles,” she continues. “The expert witness’s job is almost like a teacher in court — to inform the court, to help the court resolve some kind of issue. The person doesn’t act as a client advocate but as someone who lends experience to the court. Many counselors fall into this role and end up feeling battered and abused by the process.”

One effective way for counselors to avoid feeling abused during legal proceedings is to educate themselves on the process before they are called into court. “I think that most counselors don’t like the idea of going to court, but there are some who are comfortable, especially if they go on to get further training,” Wheeler advises. “The better trained you are, the more knowledge you have, and it definitely seems to lower anxiety. Counselors should typically act as expert witnesses only when they are not counseling the client involved in the legal action.”

Getting prepared

Neely notes that talking to others who have spent time in the court system — counselors and other professionals alike — can be useful in helping counselors relieve anxiety and prepare themselves. She also recommends reading and rereading texts about clinicians involved in court proceedings.

Stride agrees 100 percent. “We know we live in a ’credentialed’ society. You can’t possibly foresee every question. Even though a lot of them are typical, many are aimed at disrupting you or discrediting you in the eyes of the jury. Of course, it’s OK to say, ’I don’t know,’ but one of the things that has helped me is getting the credential as a Certified Forensic Mental Health Evaluator through the National Board of Forensic Evaluators [NBFE].”

ACA has partnered with NBFE since 2004 to advance the forensic evaluator credentialing process. The NBFE’s certification requires a significant amount of footwork, including both written and oral exams. “It’s grueling from the fact that you have to have so much experience, be licensed for a certain amount of time, have worked in the court system, have referrals, do a workshop, take exams and so on, but it’s important because, traditionally, it’s only been psychiatrists and psychologists whom the courts felt were qualified to be witnesses,” Stride says. “We know that mental health counselors are just as qualified, so having a certification from a national board looks good.”

Becoming an expert witness can also help counselors build another revenue base. “I require a retainer upfront, and then I charge per hour to do what I do,” Stride explains. “The retainer can go from $1,500 to $5,000, depending on the case. It can be very lucrative if you do three or four cases per month.” Marketing yourself is an important part of building a niche in this field, Stride says. He recommends that counselors maintain websites devoted to their courtroom experience and invest the time to get listed in the various expert directories.

Maryann Lucy, a counselor and ACA member in San Benito, Texas, is also certified by NBFE. She says her main motivation in serving as a witness in court cases remains using her expertise to help those in need. She explains that jurors face complicated, difficult decisions when it comes to child-related cases. “They need to have clear and concise information to assist them in understanding the nature of child responses and behaviors within the context of the developmental information that is available to us,” Lucy says. “They need witnesses to educate them on such topics as symptoms of abuse and delayed outcry.”

Lucy recommends finding a professional who can serve as a courtroom mentor. “Discuss your fears, plan rehearsal scenarios that will serve to educate you, and work on affirmations to overcome fear,” she says. “You are the professional. You know the part you played in this [client’s] experience. After testimony, process your experience and evaluate it with your mentor.”

Do’s and don’ts in court

Lucy describes her first court appearance as terrifying. “I had never done anything like this before and never experienced cross-examination,” she recalls. “I felt very intimidated but tried to keep the image of the child victim before me. I left believing I had ruined her case, only to find out that her perpetrator had been judged guilty.”

The experience made Lucy realize that she would need to “toughen up” to better serve her clients. Today, she emphasizes the importance of working with the lawyers involved ahead of time. “If I don’t hear from them after a subpoena, I start calling,” she says.

Stride says the most important thing for counselors to do is to go over questions in advance that the attorney will ask and to get input concerning potential cross-examination questions. He also emphasizes that counselors should work hard to present their information in a non-defensive manner. “When they challenge your credentials, certainly don’t embellish,” he says. “It’s OK to agree with them and say, ’I don’t have a lot of experience in that. However, according to my evaluation …’ Sometimes, you have to keep repeating yourself. Stick with your results, and certainly don’t change your mind on the stand.”

George Cyphers, an ACA member and rehabilitation counselor education instructor at Kent State University, agrees that advance preparation is key. Cyphers, who also runs a private consulting business, built a career around employee disability assessments, serving as an expert witness in 14 states.

“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,” he says. “You must be thoroughly grounded in their field. In addition to being a subject-matter expert, you must be aware that the framing of opinions is a skill, as [is] the articulation and defense of an opinion in the stress of cross-examination.”

Cyphers also notes the distinction between courtroom and deposition testimony. “Courtrooms are the theaters in which trials take place. … Depositions are much harder work. Court testimony takes place in front of a judgmental audience — a jury, with a referee — a judge. Depositions are much more open to being turned into a free-for-all, and there is no one to admonish the bad behavior that attorneys can sometimes engage in.”

Among Cyphers’ additional pieces of advice for counselors serving as witnesses: dress modestly; speak clearly; only answer the question that was asked; and refrain from humor during testimony. “When serving as an expert witness, remember that none of the attorneys involved is your attorney,” he says. “They all represent someone else, and they all have as an agenda to vigorously prosecute their particular point of view.”

Richard Knowdell is a nationally certified counselor and longtime ACA member whose San Jose, Calif.-based career counseling firm offers vocational evaluations of those going through no-fault divorce proceedings. It’s beneficial for counselors to know ahead of time that the courtroom experience is nothing like the old Perry Mason TV show, Knowdell says. He recommends that counselors spend time in a courtroom to observe the real-life behavior of judges, attorneys and witnesses.

Knowdell emphasizes the importance of counselors having a clear opinion backed up by solid facts. He also suggests that counselors be prepared for the legal system’s slow pace. “You need to be patient, as most of the time your 9 a.m. case will not actually be called by the judge until 11 a.m. But keep in mind that your ’meter is running.’ As an expert witness, your chargeable time starts the minute you leave your office and continues until you return to the office.”

K. Joe Heard, an ACA member in private practice in Benton, Ark., has testified in more than 100 court hearings. He stresses the importance of obtaining documented consent from all parties so the counselor can communicate freely with the attorneys and judge. He adds that counselors should turn off their cell phones in the courtroom, dress professionally and remember to address the court politely using “sir,” “ma’am,” and “Your Honor.”

“It is OK to take notes in with you and ask the court if you can refer to them. Just be aware that anything you carry into court is subject to review,” Heard says. “Be objective on the side of truth rather than being biased. … Realize that you are a highly trained professional with a license. Do not allow attorneys to intimidate you.” After testifying, counselors can ask the court if they can be excused, Heard points out. That way, they won’t end up spending the entire day in court.

What kind of person willingly signs up for this kind of experience? Stride says it helps to be someone who enjoys the debate. “There are some counselors who would rather do therapy, but there are some individuals who like the stimulation of going into court and debating with the attorneys. That type of person usually does very well in the court setting,” he says. “[It’s also] having the desire to do an in-and-out sort of thing. In forensics, you aren’t the person’s therapist or counselor. You are there to do an evaluation only, and that appeals to some counselors.”

Stride notes that attorneys on both sides might attempt to get the counselor to offer an opinion rather than a statement based on facts alone. “Sometimes, the attorney will say, ’Well, if you knew that this person had a DUI 10 years ago, would this change your opinion?’ You must say, ’No, according to the information I had at the time, I would not change my opinion.’ Or they say there’s an expert who said something else, and would you defer to him because he’s an expert. You have to say, ’No, according to the information I had at the time of the evaluation, I would not change my opinion.’”

“No speculation,” Stride emphasizes. “Stick to the facts.”



Stacy Notaras Murphy is a licensed professional counselor practicing in Washington, D.C. To contact her, visit therapygeorgetown.com.

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