Attorney Anne Marie “Nancy” Wheeler and private practitioner Burt Bertram are collaborators in a mission to teach counselors how to steer clear of the profession’s common legal pitfalls.
Serving as the consultant for the American Counseling Association Insurance Trust Risk Management Help Line for the past two decades, Wheeler is very familiar with legal issues surrounding the therapeutic process. Additionally, she teaches a legal course in the counseling program at Loyola College in Maryland. Aside from maintaining his private practice, Bertram is a former member and chair of the ACA Insurance Trust and an adjunct professor at Rollins College, where he has taught counseling ethics for 15 years.
Together, these professionals have identified specific steps that counselors can take to reduce the risk of lawsuits and licensure board complaints. Following are their top 10 ways to comply with the legal system while still maintaining the integrity of the counselor-client relationship. To play it even safer, Wheeler says mental health professionals should seek services from local counsel for specific legal issues as they arise.
1. Adopt the decision-making model
The 2005 revision of the ACA Code of Ethics says, “When counselors are faced with ethical dilemmas that are difficult to resolve, they are expected to engage in a carefully considered ethical decision-making process.” In addition to this planned course of action to manage ethical issues, Wheeler and Bertram suggest counselors prepare a risk management tool kit, which should include:
- Federal and state statutes, regulations and relevant case laws
- Publications, articles and case studies on ethical issues
- Employer-specific checklists and policies
- Contact information for a local attorney and fellow mental health colleagues (for consultation purposes)
“Having an ethical decision-making model established allows a counselor to make a thoughtful and deliberate decision as opposed to a spontaneous or compulsive decision. In 99 percent of the cases, we want a thoughtful and deliberate decision. There’s time for it, and we owe our clients that,” says Bertram, who adds that the first step of the model should be to clearly define the problem. “That’s important so you know what ethical or legal issues, principles or points are at risk so you may develop appropriate solutions.”
To obtain an example of an ethical decision-making model, e-mail ACA Director of Ethics and Professional Standards Larry Freeman at firstname.lastname@example.org.
2. Two heads are better than one: Consult with colleagues
“This is one of the most important yet easiest strategies there is,” Bertram says. “Recognize that you aren’t in this alone. Peer consultation doesn’t have to be just for ethical dilemmas. It can be beneficial as we move along in our cases. Even if you are licensed, if you are a veteran professional, it doesn’t mean that another’s perspective isn’t helpful or valuable. But certainly, when there is an ethical situation, you will want to consult with at least one if not several other colleagues.”
Wheeler concurs, saying that when counselors encounter a sticky ethical issue, it is beneficial not only to seek peer consultation, but also to document that this action was taken. That way, if a lawsuit is filed, counselors have some proof that they sought advice and took reasonable action. “It shows that you took the time to help the client,” she says.
Wheeler adds there is occasionally confusion in the counseling profession concerning the difference between supervision and consultation. “If a counselor consults with a colleague, they are free to accept or reject what the consultant has to say,” she explains. “But if it’s supervision, there is a level of responsibility, and the counselor must follow what the supervisor advises.”
3. Develop appropriate informed consent
Both Wheeler and Bertram say it’s important for counselors to develop appropriate informed consent. This written document should be verbally reviewed by the client and the counselor before the client signs and treatment begins.
“Informed consent defines the parameters of practice,” Wheeler says. “It’s not just a piece of paper that you shove in front of the client and say ‘sign this.’ It’s an ongoing process rather than a onetime thing. It’s important for clients to know the limits of confidentiality.” State licensure regulations may specify the contents of an informed consent document, Wheeler says, but basic informed consent documents should include the following:
- Confidentiality, privilege and privacy limitations or exceptions
- Emergency procedures
- Fees (if applicable)
- Credentials, affiliation, supervision, consultation and so on
3.5 Responding to subpoenas
“The topic of subpoenas is an offshoot of confidentiality and privilege, and it’s the most frequently asked question posed through the ACA Insurance Trust Help Line,” Wheeler says. “Counselors get served with subpoenas a lot, and it causes a lot of anxiety.” Just because a counselor receives a subpoena doesn’t necessarily mean he or she will have to testify, she adds. According to Wheeler, counselors are most commonly served with subpoenas related to divorce or parental rights cases.
“There are steps that counselors need to know about if their client is involved in any type of legal proceeding,” she says. “The first step is to talk to your attorney or a risk management attorney through your professional liability insurance program (to find out if the subpoena has merit). … The bottom line is that with subpoenas, you want to get written consent from the client (authorizing the release of information) or a court order from a judge. There are state variations on that, but we don’t want counselors to automatically think that just because they get a subpoena, they have to send in the (client’s) records, because they could be violating their client’s confidentiality and then be at risk for a malpractice suit.”
4. Know ‘duty to warn and protect’
“This is a big issue that first got a lot of attention back in the 1970s with the Tarasoff decision in California, a case that said mental health professionals had the duty to warn or protect the victim when a client poses a serious risk of violence against another person,” Wheeler says.
According to Bertram and Wheeler, Tatiana Tarasoff was attending the University of California-Berkeley in the late 1960s when a fellow student, Prosenjit Poddar, murdered her. Poddar was upset by his unrequited affection for Tarasoff and sought help for depression at the campus hospital. While in session, he told the psychologist that he wanted to kill Tarasoff. Acting in good faith, the mental health professional contacted the authorities. Poddar was detained briefly but then released. A few months later, Poddar killed Tarasoff by stabbing her. He then called the police. He was charged and found guilty, but Tarasoff’s parents filed a wrongful death suit against the university and the psychologist. The case went to the state Supreme Court and eventually defined mental health professionals’ responsibility to warn and protect clients’ potential victims. Although the case was heard in California, it paved the way for similar laws nationwide.
Wheeler says it’s imperative for counselors to familiarize themselves with their state’s laws pertaining to a counselor’s duty to warn and protect, and then to take appropriate action if a client makes a threat. Furthermore, counselors who work in school or university settings should be cognizant of recent changes in policy regarding students threatening violence on campus. Wheeler notes that 50 school shootings have taken place worldwide since 1996, and many universities have reexamined their emergency procedures and policies since the massacre last spring at Virginia Tech.
Since the Virginia Tech tragedy, Bertram says, counselors and other mental health professionals have felt greater tension as they try to walk the sometimes fine line between protecting a client’s confidentiality and taking appropriate action to safeguard the public. He has noticed a pendulum swing, with counselors taking action sooner and being more proactive in preventing harmful acts. “We are nowhere near figuring this all out. There will be court cases, and it will trickle down into statutes and ethics codes,” says Bertram, who believes the process will slowly unfold over the next decade.
Adds Wheeler, “A lot of times the Family Educational Rights and Privacy Act (a federal law that protects the privacy of student records) has been seen as a roadblock against counselors speaking to school administration or parents, but FERPA has exceptions that will allow counselors to release information. That’s one thing counselors really need to know is that FERPA is not this absolute roadblock.”
According to the National Association of College and University Attorneys, FERPA allows information from student education records to be shared with appropriate parties if knowledge of the information is necessary to protect the health or safety of students or other individuals. The situation must be considered an emergency, however; information should not be disseminated based on a “knee-jerk” reaction, according to FERPA.
“Documentation allows for a thoughtful view of the case every time you finish a session. Clinically, that’s a huge reason to do so,” Bertram says. “From a liability point of view, it provides evidence of careful clinical decision making. In the event that something does go wrong or your judgment is questioned, you have proof in your case notes that you weren’t just checking boxes; you were actually thinking about that client and responding to what you saw.”
State requirements might determine what must be documented in a client’s records, but at a minimum, Wheeler says counselors should document the presenting problem, diagnosis, treatment plan, progress of treatment, end result and follow-up plan. Furthermore, both experts agree that when working with a potentially dangerous client or difficult situation, it’s in a counselor’s best interest to document all details related to abuse and threats to self or others. This should include not only notes about the course of treatment but also the actions (reporting to authorities, consultations and so on) taken by the counselor.
Guidelines for documentation can be skewed for school counselors, Wheeler says, because school districts vary on whether counselors should keep detailed records.
6. Managing boundary issues and “co-occurring” relationships
The ACA Code of Ethics states that “co-occurring” or nonprofessional relationships with clients, former clients, their romantic partners or their family members should be avoided, except when the interaction is potentially beneficial to the client (see Standard A.5.c., “Nonprofessional Interactions or Relationships” and Standard A.5.d., “Potentially Beneficial Interactions”).
Potentially beneficial interactions may include:
- Attending a formal ceremony (for example, a wedding/commitment ceremony or graduation)
- Purchasing a service or product provided by a client or former client (excepting unrestricted bartering)
- Hospital visits to an ill family member
- Mutual membership in a professional association, organization or community
- However, counselors must handle nonprofessional relationships with care and within clearly defined boundaries, Wheeler says. Among the possible issues that can arise with co-occurring relationships:
- Loss of objectivity
- The potential for misunderstanding
- Conflict of interest
- Increased risk for breach of confidentiality
- Client exploitation
- Lawsuits and licensure board complaints
“Even though the most recent ACA Code of Ethics opens up the door to the idea that not all nonprofessional relationships are bad, according to the regulations of some states, they are still prohibited,” Wheeler points out. “So counselors need to not only look at the ACA ethics but also see what their state licensure laws and regulations tell them.” Additionally, she says, when presented with the issue of a co-occurring relationship, it’s smart for counselors to document the details of the relationship and to speak to the client about boundaries and the appropriate course of action for the situation.
7. Know reporting duties
Counselors are aware that they need to report child abuse, but a case can become problematic when counselors must determine exactly what qualifies as abuse. When in doubt, Wheeler and Bertram recommend that counselors call their area child protective agency and ask, hypothetically (without providing names), whether the action in question is a form of abuse and should be reported. Other reportable issues include elder/venerable adult abuse, unprofessional conduct of a peer and malicious actions risking the infection of disease (such as HIV/AIDS). However, many reporting decisions depend on the unique circumstances of the case and state health laws.
“In some states, the duty of confidentiality trumps the reporting duty, and in other states, the reporting duty trumps confidentiality,” Wheeler says, “so this can be a very tricky issue because you want to do what’s in the best interest of the client.”
Bertram says he reminds counselors that they only need a suspicion of abuse to report it; it’s not their responsibility to investigate or substantiate the suspicion.
8. Learn and follow school/institutional policies
Eisel v. Board of Education of Montgomery County (Md.) was the first suicide case brought against school counselors. A state court found that school counselors were partially responsible for the student’s suicide because they neglected to take further measures to prevent it, according to Wheeler. In 1991, the court ruled that school counselors had a duty to notify the parents of a 13-year-old student about the suicidal statements she had made to peers. Nicole Eisel mentioned to a classmate that she wanted to kill herself. The student notified the counselor, and Eisel was called in and questioned. After Eisel adamantly denied having suicidal thoughts to two counselors, they determined she was safe and that her statements were a nonissue. The counselors didn’t notify either school officials or Eisel’s parents. Days later, Eisel and another student committed suicide.
After that case, Wheeler says, many school districts put policies in place allowing school officials and parents to be notified when a student expresses suicidal ideation. “The point that we are trying to make here is that counselors must know what their school or institution’s policy is and follow it,” Wheeler says. “Policy not followed is worse than no policy at all.” Furthermore, she says, if counselors are in the position to make or revise policy, it’s important to make the policy workable, within state laws and in accordance with their licensing board regulations. “If you develop policy that people can’t implement in real life, then that’s worse than having no policy at all,” she says.
9. Follow rules of supervision
“Hardly any guidelines existed for supervision 10 to 20 years ago,” Wheeler says, “but a lot of the state counseling boards are now really defining what supervision is and what it entails, and they are specific on what has to be done when supervising. We strongly suggest a written contract between the supervisor and supervisee so that the agreement is clear.”
Among the elements Wheeler and Bertram suggest the contract include:
- Meeting times and frequency
- Expectations of both supervisor and supervisee
- Fees (if applicable)
- Specifics of how the supervision will occur (reviewing notes, watching sessions through a two-way mirror, tape recordings, etc.)
- Specific circumstances to immediately notify the supervisor (a client reporting abuse, suicidal thoughts and so forth)
- How to contact the supervisor in case of emergency
Considering that the supervisor is responsible for the actions of supervisees, Bertram says it’s good practice to keep notes on the supervising sessions, especially if ethical or legal issues are presented. “One of the most important jobs of the supervisor is to help the supervisee learn the red flags — when things are going poorly with a case and you need to take action,” he says. “(Supervisors) are there to help develop the supervisee into an independently practicing professional, so legal, ethical and clinical considerations, as well as professional behavior, should always be topics of discussion. You are there to help them become a true professional counselor rather than just someone who does counseling.”
10. Obtain appropriate professional liability insurance
Both experts strongly encourage counselors — whether in private practice or institution-based — to maintain some kind of professional liability insurance. “Make sure you get a policy that covers some amount of attorney fees and licensure board matters,” Wheeler advises. “Those are more frequent than civil suits against counselors. Counselors need to ask about the financial status of the underwriter and if the provider offers some kind of risk management help.”
Wheeler and Bertram will present three Education Sessions at the ACA Conference & Exposition in Honolulu: “Top 10 Steps to Reduce Risk of Lawsuits and Counselor Licensure Board Complaints” on Friday, March 28, at 11 a.m. and again on Saturday, March 29, at 2 p.m., as well as “Lessons Learned by Virginia Tech: How to Prevent Harm and Safeguard Privacy and Freedom” on Friday, March 28, at 7:30 a.m.
In addition, ACA recently released a revised and expanded edition of their book The Counselor and the Law: A Guide to Legal and Ethical Practice. The new edition is in accordance with the 2005 ACA Code of Ethics and contains information on current federal and state laws to guide counselors in making crucial legal and ethical decisions.
The book is available to ACA members for $33.95 and to nonmembers for $44.95. Orders (Order #72857) may be placed through the ACA online bookstore at www.counseling.org or by calling the ACA order line at 800.422.2648 ext. 222.
For additional information or questions regarding risk management, ACA members can contact Wheeler through the ACA Insurance Trust Help Line at 800.347.6647 ext. 284. To learn more about the ACA Insurance Trust, visit www.ACAIT.com.
Angela Kennedy is a past senior writer at Counseling Today.
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