We have entered an unusual time in the counseling profession when our field is practicing during a global pandemic. While most of us are conducting largely telehealth practice, we are also beginning to see our clients in face-to-face settings again. Seeing our clients in person is preferred by many counselors, but there are concerns related to COVID-19 that have ethical implications. Four counselor educators and American Counseling Association members, all clinicians and ethicists, two of whom are also attorneys, weighed in on the issue of contact tracing for counselors.
The Centers for Disease Control and Prevention (CDC) defines contact tracing as part of the larger process of case investigation that can support people who are suspected of, or known to have, COVID-19. During the process, exposed individuals, who are termed “contacts,” are told that they may have been exposed to someone with COVID-19. They are not told who the person is but are given information to inform their own health care decisions. The CDC and case investigators try to work as quickly and sensitively as possible to share relevant information with individuals who may be impacted or at risk.
Clients have the right to break their own privacy. They can tell someone that they saw us for services and even what they talked about. However, counseling is unique in the concept of confidentiality, which is the ethical obligation held by the counselor. Counselors cannot disclose any information about the client, including the fact that the client is, indeed, a client. Historically, in requests for information, counselors have followed the “I can neither confirm nor deny” approach to acknowledging whether a person was in their care unless there is a signed agreement allowing the counselor to share information.
If a client contracts COVID-19, the client can share with health care professionals their contact with the counselor. The dilemma arises when and if the counselor contracts the virus. How would that person protect client confidentiality while also maintaining best practices for public health? If the counselor were a barber, they could turn over a list of clients they had seen during the identified period. In the case of counseling, what should the counselor do?
We posed these questions to a small group of ethics and legal scholars in the counseling field. Here are their responses.
Mary Hermann: I recommend that counselors start addressing this issue in their informed consent documents and in their continued conversations related to informed consent. Given how easily this virus spreads and the loss of life associated with it, I suspect we would have to disclose our contacts to public health officials but protect our clients as much as possible.
Donna Sheperis: I really like the idea of addressing this in informed consent. We realize that informed consent is not just a document. It is a dynamic process that is revisited over time, especially in response to changes in society. COVID-19 represents a tremendous change to our society and culture.
If I were working in an area with contract tracing, one thing I might do is include in my informed consent the parameter and limitation of COVID-related disclosure. Specifically, I would want my clients to know that if I tested positive, I would let them know myself. Secondly, I would want them to know that I would need to give just their names to the entity conducting contact tracing. The case investigator would have no knowledge of how I came into contact with the client, as the clients’ names would be intermingled with other staff, my family, my friends and others whom I came in contact with. However, the risk of someone being potentially seen as a client by the investigator is very real.
If a client was not comfortable with that level of risk, then we may need to reconsider our ability to work together. I would hope it wouldn’t come to that, but it is possible.
Michael Kocet: Because of the fluid nature of understanding this virus and how it travels, it is important that counseling professionals seek out the latest information from the CDC, the World Health Organization and other governmental agencies that provide the most up-to-date information. It is also important for clinicians to remember that informed consent is both a written and a verbal process, and that it is nearly impossible for a counselor to have every detailed nuance of information included in an informed consent form. Additional verbal information given to a client should be documented in a follow-up clinical case note in the client’s file.
Ann Ordway: A critical consideration is the purpose of the counselor revealing the client’s identity. With traditional exceptions to confidentiality — namely when a client poses a danger to self or when the client poses a danger to others — the purpose of disclosure is the protection of the client or other identified individuals.
If a counselor tests positive for COVID and has had contact with specific clients, the disclosure of the names of those clients for contact tracing also has the purpose of mitigating risk and protecting the client and other individuals with whom the client has also had contact. It is critical to let the clients know this could happen and the circumstances under which it will happen. Counselors should avoid any unnecessary breach of client information, but the prejudicial nature of revealing a client’s identity might be outweighed by the probative value for public health and slowing down this virus.
There was also some discussion about ethical implications should a client test positive for COVID-19.
Michael Kocet: As Standard B.2.c. of the 2014 ACA Code of Ethics outlines, counselors must assess the intent of clients to inform third parties regarding contracting a contagious, life-threatening disease. While this standard was mostly born out of HIV- and AIDS-related issues, I think COVID can certainly apply to this standard.
I think the main consideration is client intent. For example, if a client becomes diagnosed with COVID and they share with the counselor that they intentionally want to spread the virus to others or are choosing to not share their COVID status with family members, friends or co-workers, then confidentiality may need to be broken. It would be nearly impossible to know every single stranger and person the diagnosed client came into contact with. I suppose a counselor could consult with someone from a state board of health or someone at the CDC without giving out any client information.
Where it could get tricky is if a person is a front-line worker such as at a grocery store or somewhere where they are required to work in order to get paid. If that person comes down with COVID, they may not want to disclose that fact. Let’s say the client says to their counselor that they have COVID but they need to work to pay for food and bills, so they are not disclosing to their employer or co-workers that they are infected, and they are continuing to go to work. I would suggest that would be an example of a time that confidentiality could be broken because they are putting co-workers and others at risk of dying.
Ann Ordway: A client who is positive or later develops as positive could be viewed as a “danger to others.” I would not be as concerned about a client who expresses an intent to disclose their own contacts with others but more so about someone who refuses to cooperate with a contact tracing process or who is cavalier about exposing others.
Of course, I would endeavor to include the client in the process. It is always better if the client agrees to a disclosure or waives confidentiality, but that is not always possible. I advocate for including language in informed consents making it clear that responding to a valid subpoena or complying with a law or regulation are also exceptions to confidentiality.
Disclosure or reporting guidelines related to client illness originally stemmed from HIV. Since there is no way to predict what is next, I would suggest including general language in the informed consent so counselors are more likely covered in the event other highly contagious illnesses emerge in the future.
Even if compelled to disclose the identity of a client, counselors only need to share basic information for tracing and not intimate details of counseling. The CDC might need to know the name and contact for the person who tested positive but will not need to know the person’s presenting issue, diagnosis or progress.
Historically, we have never faced an ethical dilemma in which the counselor could be the person who infects a client. We have no real precedent on which to base our decision. What we do have as a foundation is a robust code of ethics that allows us to make decisions with our clients’ welfare in mind. We involve the client whenever possible, and we document those concepts in an ongoing informed consent process. As counselors, we are always evolving, and the pandemic is teaching us how adaptable we are.
Donna S. Sheperis is a licensed professional counselor, national certified counselor and approved clinical supervisor. She is a professor of counseling at Palo Alto University engaged in private practice. She has served on the ACA Ethics Committee and the ACA Ethical Appeals Committee in addition to authoring publications in the area of counseling ethics. Contact her at firstname.lastname@example.org.
Ann Ordway holds a doctorate in law and is a national certified counselor. She is a core faculty member at the University of Phoenix and a licensed attorney specializing in family law. She has multiple publications and presentations in the area of counselor law and ethics. Contact her at email@example.com.
Michael Kocet is a licensed mental health counselor, a national certified counselor and an approved clinical supervisor. He is a professor and department chair at the Chicago School of Professional Psychology. He has served on the ACA Ethics Committee and the ACA Ethics Code Revision Task Force, in addition to authoring multiple publications in the area of counseling ethics. Contact him at firstname.lastname@example.org.
Mary Hermann holds a doctorate in law. She is an associate professor at Virginia Commonwealth University and an attorney. She served on the ACA Ethics Code Revision Task Force and has multiple publications and presentations in the area of counselor law and ethics. Contact her at email@example.com.
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.