This award recognizes exceptional, demonstrable understanding of the ACA Code of Ethics, the foundation of ethical professional counseling practice.
Winners: Connie Elkins, Jay Tift and John Bender of Lindsey Wilson College
The ethical dilemmas within the scenario include integration of technology and electronic record storage, confidentiality, informed consent, supervision practices, remediation, and gatekeeping. The authors’ response includes: identifying these dilemmas with guidance from the ACA Code of Ethics; recommending courses of action; and utilizing Cottone’s (2001) Social Constructivism Model of Ethical Decision Making. A constructivist approach to supervision and as an ethical decision-making model are helpful for resolution of the dilemmas between Rita, Sam, and Dr. Menendez.
2020 ACA Ethics Competition: Doctoral Prompt
The ethical scenario as presented contains a number of issues of concern. Of particular relevance are those issues surrounding the importance of written informed consent with all clients regarding confidentiality and privacy of their information, the ethical use of technology as it relates to storage and transmission of client information, and appropriate gatekeeping and remediation practices in the case of skills deficits for counselors-in-training.
Informed Consent, Confidentiality, and Technology
Informed consent is a central tenet of ethical practice in counseling. Clients have the right to be fully informed about all aspects of their treatment, including the storage and transmission methods of their files, whether written, audio, or video (American Counseling Association, 2014). Counselors must not only inform clients verbally, but through the review of a written informed consent document that is both understandable and transparent. This is especially important with the use of technology due to its ever evolving nature and potentials for breaches in confidentiality (McAdams & Wyatt, 2010).
Utilization of email is nearly ubiquitous in modern communication, however, in clinical practice it requires caution. The risk of breaches in confidentiality should be addressed prior to use (Atherton, Sawmynaden, Sheikh, Majeed, & Car, 2012). The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) allows for email between counselor and client as well as between a supervisor and supervisee with the client’s informed consent (Rousmaniere, Renfro-Michel, & Huggins, 2016). This presupposes utilization of HIPAA compliant technology with full encryption and secure storage. Using email for data transmission poses potential confidentiality risks in cases of unencrypted systems, accidental misaddressing (as in the case of this scenario), email within handheld devices which are not password secured, and in standard documentation by email or internet providers (Lustgarten & Elhai, 2018). Counselors must be thoughtful and cautious in using email to relay private health information.
Gatekeeping and Remediation
Insuring the practice of counseling in a competent and ethical manner and protecting the integrity of the counselor-client relationship are core values of the profession (American Counseling Association, 2014). In the attempt to protect these core values, processes for gatekeeping and remediation are required during counselor training. Trained supervisors are expected to provide on-going evaluation of counselor performance with active remediation activities. If counselors-in-training (CITs) are unable to demonstrate that they can provide competent, professional services, it is the responsibility of their supervisor to develop remediation strategies or to recommend dismissal from training programs. Remediation and gatekeeping are not lone processes; supervisors consult with other professionals and standing policies prior to determining actions toward CITs (American Counseling Association, 2014).
Remediation in training is not considered punitive but supportive as the supervisor and supervisee develop a working alliance (Lampropoulos, 2002). Effective supervision of CITs includes developmental and culturally sensitive approaches with support, guidance, and self-awareness (Handelsman, Gottlieb, & Knapp, 2005; Lampropoulos, 200 2; Pompeo & Levitt, 2014). The use of a consistent model for supervision is a way to validate remediation strategies, with most supervision models paralleling those of counseling models (Destler, 2017; Lampropoulos, 2002). Destler (2017) states that the process of supervision, and the relationship between counselor and supervisor, are similar in structure to the concurrent relationship between client and counselor. However, “this triadic configuration does not take a fourth entity into account: the relationship between the supervisor and the supervisor’s supervisor” (p. 274). The supervisor’s supervisor is an integral part of the remediation and gatekeeping process, and most often the one responsible for final decisions of gatekeeping.
Identification of the Dilemma
An initial ethical dilemma in this scenario is inadequate informed consent which should be reviewed and signed by the CITs’ clients regarding the videotaping of sessions and use of these sessions in the supervision process. Another dilemma includes difficulty in the supervisory relationship between Rita and her doctoral student supervisor, Sam. Rita is not receptive to Sam’s feedback regarding her clinical skills and therefore chooses to download a video file of a client session, which includes written feedback from Sam, and to share it via email with the rest of her practicum class. Sharing the video with classmates without client consent is a breach of confidentiality.
Other breaches of confidentiality occur as Rita’s classmates share the video, again via email, with their doctoral supervisors. Ultimately, the video is accidentally shared with the faculty supervisor, Dr. Menendez, when he is looped into the email chain regarding the file. It is not directly problematic that Dr. Menendez received this file, as he is responsible for both the CITs and the doctoral student supervisors, but it demonstrates the risk of email in the potential for accidental sharing. It is problematic that Dr. Menendez learns of the sharing and conflicts accidentally instead of through reports from Sam and the other doctoral student supervisors.
A final concern is the lack of communication between Rita, Sam, and Dr. Menendez. Dr. Menendez is ultimately responsible for client services and CIT performance and should be providing guidance to Sam as Sam strives to deliver effective feedback to Rita. Sam should be continually consulting Dr. Menendez with any supervision, remediation, or gatekeeping concerns for his CITs. This demonstrates issues related to effective gatekeeping and remediation, both for Rita and for Sam.
The views of Rita and Sam are at the heart of this dilemma. Sam has become concerned about Rita’s practical application of counseling skills and is struggling to provide feedback in a way that is helpful. Rita has become increasingly frustrated with her perceived unfair feedback and is not receptive to Sam’s supervision. This mutual frustration may have created an impasse between Rita and Sam, and further consideration must be given of the viability of the relationship.
Social Constructivism Model – Cottone
The Social Constructivism Model for ethical decision making is a social interpretation of the decision-making process, taking into account how decisions occur and how values are weighed by the individuals involved (Cottone, 2001). Within this approach there is a recognition of competitive truths in which ethical dilemmas are normalized, initial consensus is established, and resolution is negotiated through interactive reflection with other professionals or through arbitration. Professionals avoid linkages of vulnerability and cultivate linkages of professional responsibility, emphasizing growth and change as opposed to failure (Cottone, 2001).
Within the constructivist approach decision-makers engage in interactive reflection. This is not an internal process of the mind but a continued reappraisal of actions in consultation with other counseling professionals (Cottone, 2001). Decision-makers consult colleagues to insure that the dilemma is fully understood and defined through obtaining complete information.
Interactive reflection is utilized throughout the processes of assessing relationships between conflicting parties, consulting expert opinion, negotiating, consensualizing, and arbitration- all defining features in the social constructivist ethical decision process. Social constructivist processes do not require linear progression and may occur simultaneously while seeking solutions to ethical dilemmas.
A social constructivist approach to supervision and ethical decision-making can be helpful in resolving the dilemmas between Rita, Sam, and Dr. Menendez. Rita’s lack of progress, lack of trust in Sam’s input, and her defensiveness and frustration are seen as symptoms of anxiety and problematic relationships (Guiffrida, 2015; McKibben, Borders, & Wahesh, 2019). These dilemmas can be resolved through a social constructivist process since her response “probably derives as much from the relationship to the accuser or enquirer as it does from the nature of the alleged misconduct” (Cottone, 2001, p.42). Remediation of Rita’s lack of progress and breach of client confidentiality is an ethical responsibility for both Sam and Dr. Menendez and will be emphasized throughout the discussion of the scenario, however, the most important relationship is between Rita and her client, and all efforts of support and remediation are to ethically establish and maintain their therapeutic relationship.
Obtain Information from Those Involved
As part of the Social Constructivism Model, the views of all parties involved must be taken into account. This includes both explicit and implicit views. Rita is given the opportunity to express her perspective and to account for her actions, explaining her decisions to reject Sam’s input and to share counseling sessions. She is encouraged to evaluate her actions in light of professional ethics and have her opinions heard by Dr. Menendez. This process can have remedial value as she is allowed to assess her actions in a supportive atmosphere.
It is also necessary to obtain information from Sam, his fellow doctoral students, and Dr. Menendez. Dr. Menendez expressed concern regarding both the actions of his CITs and of Sam and the other doctoral students who were aware that this information was being circulated. Sam is given the opportunity to explain his actions, which also may provide remedial value as he assesses these actions in light of his professional ethics. The doctoral students can communicate their perspectives and assessment of the dilemmas, using this as a learning opportunity. Through information gathering, it is hopeful that Dr. Menendez will realize the inadequacies of the current informed consent document.
Assess the Nature of Relationships
An evaluation of the relationships between Rita and Sam, Sam and Dr. Menendez, and Rita and Dr. Menendez is beneficial to remediate Rita’s skills and to repair ethical breaches created in this scenario. The supervisory relationship is foundational to supervisee growth and development, and skillful nurturing and application of these relationships creates the environment for an optimal outcome (Cottone, 2001; Guiffrida, 2015; McKibben et al., 2019). McKibben et al. (2019) found that the stronger a supervisee perceived the relationship to their supervisor, the more likely critical feedback was viewed as valid. Receptiveness to, and encouragement of feedback between Rita, Sam, and Dr. Menendez will greatly improve the chances of optimal resolution in this scenario.
Rita’s frustration and resistance to Sam’s interventions are symptoms of her anxiety and lack of trust in Sam’s guidance. Strategies include an honest evaluation of their relationship along with activities to establish mutual trust and acceptance. As the supervisor, Sam can encourage and normalize Rita’s feelings of anxiety and frustration in the growth process. He can also share some of his personal experiences as a CIT to create mutual empathy. Empowering Rita to create agendas for their supervision sessions and to critique his ability in providing helpful feedback can increase her sense of autonomy and comfort in the relationship as well as giving Sam insight into his supervision approach. Rita’s mistakes can be seen not as failures but as part of the learning process, particularly when Rita recognizes and corrects them while counseling or during supervision. As their relationship develops Sam can teach Rita to critically reflect on her thoughts, feelings, and behaviors in counseling sessions. Rita’s increased self-awareness and decreased fear of failure will help her to apply effective strategies while working with her clients.
The relationship between Sam and Dr. Menendez also needs to be addressed as part of Sam’s remediation. Dr. Menendez is Sam’s supervisor, and ethical breaches and lack of progress with Sam and his supervisees are problematic. The fact that Sam did not notify Dr. Menendez of the electronics breach and issues with Rita indicates that Sam is not entirely forthcoming in their supervisory relationship. Sam is likely experiencing anxiety as supervisor of CITs. Dr. Menendez must work to create a sense of safety for Sam to engage in reflection of his thoughts, feelings, and behaviors within his supervisory responsibilities. Sam and Dr. Menendez can then cooperatively strategize remediation plans for Rita’s performance. Sam’s development as a supervisor will be supported through reflective interaction with Dr. Mendez.
Another relationship that needs to be assessed is that of Rita and Dr. Menendez. Dr. Menendez should insure that Rita and the other CITs feel secure enough to express concerns they are having in the counseling and supervision process. He needs to be accessible and supportive, normalizing anxiety and mistakes as part of the developmental process, while also providing clarity on the institution’s dual commitment to protecting clients and helping CITs grow. Strategies might include sharing his experiences as a counselor as well as discussing realistic expectations of students from a developmental perspective. From this stance, he and Rita can cooperatively assess their relationship and create a plan to strengthen and maintain it.
Consult Valued Colleagues and Expert Opinion
It is vital that a supervisor-in-training be in regular consultation regarding all supervisees with their supervision supervisor. This is especially true if they have a supervisee who is demonstrating skills deficits or rejecting supervisor feedback. In this case, Rita’s defensiveness and her difficulty in translating academic learning into clinical practice needs to be a regular discussion point for Sam and Dr. Mendez. Sam also has the opportunity to consult with his doctoral classmates in their supervision class. Doing so may provide him with different perspectives and strategies for supporting Rita. Group consultation is helpful for any counselor in order to prevent becoming myopic or rigid in the approach to a client or a supervisee.
Dr. Menendez can benefit from consultation with his valued colleagues, particularly if this becomes an issue of gatekeeping. Colleagues can advise or help with revision of the informed consent document and help insure that appropriate procedures are followed if Rita is not successful in remediation efforts. While colleagues within his department are the most direct source of consultation, it may also be of use to reach out to colleagues in other institutions and in professional organizations to get an idea of how others are handling similar situations both proactively and as they come up.
The basis of expert opinion is the ACA Code of Ethics. As counseling professionals, all individuals within the scenario should consult these standards to guide the ethical decision process. Among the values listed in the preamble of the 2014 ACA Code of Ethics, two are particularly relevant to this scenario. The first is that counselors must work to “safeguard the integrity of the counselor-client relationship” (American Counseling Association, 2014, p. 3). It is important to consider the potential impact that sharing the video might have on the relationship between Rita and her client if this information was shared without clear consent from the client.
Also, counselors strive to “practice in a competent and ethical manner” (American Counseling Association, 2014, p. 3). Rita’s struggles with clinical competence and the ethical issues regarding informed consent, confidentiality, technology, and remediation all must be taken into account.
The principle of autonomy grants the client power over the sharing of their information regarding their treatment. It is also important for supervisors to honor the autonomy of supervisees, giving them the opportunity to voice their concerns with any feedback. Concerning the principle of Fidelity, it is vital to honor commitments to clients regarding maintaining privacy and confidentiality (American Counseling Association, 2014).
Below we list the most centrally relevant points from the Code related to this scenario. While there are many points throughout the 2014 ACA code that can be applied, we have attempted to be parsimonious in our list.
- 2.a Informed Consent – While the clients are verbally informed about the use of video there is no written informed consent with regard to either video recording or the potential uses of the video. Rita’s desire to share a video with her classmates should be discussed with the client as part of the ongoing informed consent process.
- 2.b Types of Information – Clients must have a clear understanding of the way technology will be used in the course of their treatment with both supervisors and consultation groups.
- 1.c Respect for Confidentiality – Rita seems to be sharing her client’s videoed session with her classmates, and indirectly with their supervisors, without having obtained the client’s consent. She should consider client confidentiality as primary over her own needs for support.
- 3.b Interdisciplinary Teams – The client must be informed not only that a full video session is being shared with Rita’s classmates, but also the reason for the sharing.
- 3.e Transmitting Confidential Information – In using email to transfer the video file to classmates, Rita has not assured the confidentiality of the information being transmitted. This is demonstrated in the fact that Dr. Mendez is accidentally looped into the email.
- 6.d Permission to Observe – Rita needs to seek permission from her client to allow her class to observe videos of their sessions.
- 7 Case Consultation – In sharing an entire video complete with her supervisor’s written feedback, Rita is not making every effort to protect her client’s identity nor has she explained to the client the purpose of her consultation with her classmates utilizing this full video in order to receive their consent for the disclosure.
- 2.c Online Supervision – The doctoral supervisors who were emailed the video of Rita’s session with her client, in choosing to remain silent, have not made efforts to protect the confidentiality of the information from potential breaches inherent in the use of email to transfer electronic files.
- 6.b Gatekeeping and Remediation – It is Sam’s job to give feedback of Rita’s clinical performance. Further, he should refer her to remediation or potential gatekeeping processes. This should be done as an ongoing process and should include consultation and supervision of his own as he navigates his approach.
- 9.b Evaluation of Students – It is Dr. Mendez’s responsibility to adequately evaluate the CITs clinical competencies. In this case, Rita’s difficulty in translating academic knowledge into clinical skills indicates a need for an educative remediation process. With Sam and the other doctoral student supervisors not notifying Dr. Mendez about the issue, he is unable to do this adequately.
- 2.b Confidentiality Maintained by the Counselor – Rita has failed to maintain a confidential relationship by sending the video to her whole class, who then forwarded it on to their various doctoral student supervisors.
- 2.d Security – Email as a medium for transmitting digital client files is inadequate to ensure confidentiality of those files. This is demonstrated in the fact that Dr. Mendez is accidentally looped into the email.
- 5.a Records – Rita’s client need full knowledge of how their recorded sessions files are stored- for both current and future safety.
From a social constructivist perspective negotiating is the process of discussing and debating an issue. Disagreement over an ethically sensitive issue is framed as a “conflict of coessentialities” (Cottone, 2001, p. 41). The first step of negotiation between Sam and Rita is to communicate their differing perspectives of Rita’s progress and Rita’s release of her counseling sessions to the group. As Rita is respectfully given the opportunity to verbalize the intentions behind her behaviors she can begin to evaluate the appropriateness of her actions. Sam and Dr Mendez negotiate their perspectives from a position of experience and protectiveness of both the client and the CITs. If the negotiation is successful all parties will learn from this process and adjust their future behaviors.
Consensualize and Interactive Reflection
Unique to the Social Constructivism Model is the interactive nature of both discussing individual viewpoints and reaching a unanimous plan of action (Cottone, 2001). As part of this process, a solution that best fits all needs and objectives is chosen in place of any one individual viewpoint. The decisions made are ideally inline with norms fitting the social group or organization that governs all individual members involved, in this case the counseling profession. In the event that consenualization is not possible, each member is then encouraged to continue to reflect on their position. Unlike individualistic decision-making models, social constructivism relies on interactive reflection, and if need be, further reflection. In this way, views are not uniquely individual or social, but rather take into account both the view of self and the group (Cottone, 2001).
In the context of this dilemma, Rita must not only take into account her frustrations regarding her lack of progress and lack of effective feedback and her desire to improve, but she must also consider the impact of her actions on her clients, Sam as her supervisor, Dr Menendez as her instructor, the counseling center, her fellow CITs, and the university. Sam must take into account his frustration with Rita, her lack of progress, and the violation of her client’s confidentiality while also reflecting on his supervision style and remediation strategy, his failure to properly inform Dr Menendez about Rita’s actions, and how he and his fellow doctoral students share responsibility and information about their supervisees. Dr Menendez, along with addressing both Rita and Sam’s behaviors, must address his doctoral supervision course as a whole, and the documentation of the counseling center, which lacks clear documentation regarding the recording and sharing of sessions.
The ideal solution is that Sam provides Rita with supportive and constructive feedback. Rita then applies Sam’s feedback and recommendations. Dr Menendez should address and more concretely operationalizes the process by which Sam and his fellow supervision students convey information. He also needs to revise the confidentiality policies of the counseling clinic. In the event that these steps were not universally accepted, additional interactive reflection continues until consensus is reached.
In a case where consensualization does not work, the final step of Cottone’s model is that of Arbitration. This is when a third party is selected consensually by those involved as an acceptable authority in the matter at hand (Cottone, 2001). In this case the immediate and obvious arbitrator between Rita and Sam, as well as in the case of Rita’s classmates who argue for their use of email to transmit the file to a growing number of people, is Dr. Mendez. As the instructor of record for the practicum course and the faculty supervisor of the doctoral student supervisors, ultimate responsibility for both the actions and clinical competencies of the students falls to him.
In the unlikely event that Dr. Mendez is unable to arbitrate a successful conclusion, further potential arbitrators would be found in the program director and department chair of the counseling program. As per best practices, the department should have clearly defined remediation and gatekeeping processes which are well articulated to students beginning before matriculation and continuing throughout the program, and which would provide the structure for this process (Glance, Fanning, Schoepke, Soto, & Williams, 2012). If remediation efforts are unsuccessful and Rita’s dismissal from the program is the required action, it is likely that the University’s legal department would also be involved to make sure that any final decisions are within appropriate legal bounds. Arbitration is utilized only if negotiating and consensualizing are unsuccessful and can result in a less than desirable conclusion, particularly for Rita. (Cottone, 2001).
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