Tag Archives: Ethics & Legal Issues

Behind the book: The Counselor and the Law

By Bethany Bray February 1, 2016

When Anne Marie “Nancy” Wheeler and Burt Bertram took over the authorship of The Counselor and the Law: A Guide to Ethical and Legal Practice in 2007, four editions of the title had already been published.

Like the profession itself, counseling’s legal and ethical standards are a moving target, an ever-Branding-Box-Lawevolving and growing entity. It only makes sense that The Counselor and the Law, first published by the American Counseling Association in 1975, needs updating every few years.

Remaining current as a counselor “requires mindful awareness of the evolution of legal and ethical practices,” write Wheeler and Bertram in the preface of the book’s newly-released seventh edition. “We are honored to assist our readers in meeting this worthy professional standard.”

Wheeler, an attorney, and Bertram, a professional counselor, have collaborated and co-presented workshops and seminars on legal and ethical issues for counselors at professional events since the 1990s. They have coauthored three editions of The Counselor and the Law: The fifth edition in 2008, sixth in 2012 and seventh in 2015.

 

 

Q+A: The Counselor and the Law: A Guide to Legal and Ethical Practice

Responses co-written by Anne Marie “Nancy” Wheeler and Burt Bertram

 

What is one main take away you would want a newly-graduated counselor to know about legal issues?

The most important message for a newly-graduated counselor is “you should never be alone when faced with complex legal or ethical issues.” Consulting trusted resources when challenged by the complexities of real world clinical practice is not only the responsible thing to do; it is a demonstration of acting in the best interests of the client. Our book is practical and grounded in the real world of clinical practice and therefore is a wonderful companion for students during practicum/internship as well as pre-licensed counselors, when combined with clinical supervision and colleague consultation.

A newly-graduated counselor should develop a cadre of “go to” consultants as well as carefully selecting an experienced clinical supervisor. These consultants might include seasoned counselors, a local health care attorney, the ACA-sponsored Ethics and Risk Management Services, an accountant and a computer technician. The Counselor and the Law offers suggestions for finding such consultants.

 

What is one main take away you would want counselors of all types — from those who work in addictions to school settings — to know?

The challenges of clinical practice continue to grow and change. Responsible counselors know that remaining current about legal and ethical issues is just as important as remaining current about new treatment modalities. Therefore, with careful thought and planning, counselors in all settings can minimize the risks inherent in their practices. Additionally, if a complaint is brought against the counselor, that careful thought and planning can often mean the difference between a bad outcome and a successful outcome.

 

When do you suggest a counselor seek outside help — an attorney or otherwise — in a challenging or troubling situation? Are there particular “red flags” or indicators that mean a counselor shouldn’t go it alone?

Just as we mentioned above in regards to newly-graduated counselors, even seasoned counselors must consult other professionals. It’s tempting to try to solve everything on one’s own, but consultation is now the cornerstone of good, ethical counseling practice. “Red flags” calling for supervision or consultation (clinical, legal and/or risk management) include: subpoenas or requests for records, especially when the counselor is aware of potential litigation; divorce and custody disputes; privacy breaches; entering into contracts with prospective employers or practice groups; boundary extensions; threats of harm to self or others; and reporting duties.

 

Nancy, as an attorney who often advises and works with counselors and mental health practitioners, what is the most common question or dilemma you hear about? In general, what types of questions are commonly asked by counselors?

The most common question I get is “What do I do with this subpoena that was just served on me?” I’m getting more and more questions related to counselors’ involvement in divorce and custody cases. The counselor is often squeezed in the middle between parents who can’t agree on important issues regarding the child.

 

The last update of this title was in 2012. How have you seen the landscape of counseling, and its legal implications, change in the years since?

Technology is changing at such a quick pace that it’s hard for the laws and counseling regulations to keep up. One of the most important changes that we see involves the issues of confidentiality and privacy. These changes are being driven by 1) the loosening of the boundaries of privacy brought by the advent of social media; 2) complexities and risks associated with the intersection of gun safety and mental health; and 3) tensions surrounding extremist views, mental health and terrorism.

 

What would you want readers to know about the updated information in the new (seventh) edition? What’s new and different?

The world of the professional counselor continues to evolve, whether the setting is private practice, school counseling, agency counseling or myriad other counseling venues. However, the imperative to serve the clients’ best interests never changes even though the complexities of modern life continue to create new legal and ethical dilemmas. The widespread use of technology by practicing counselors continues to create new opportunities and new challenges. In this seventh edition of The Counselor and the Law, we have updated every chapter to reflect changes brought by the 2014 ACA Code of Ethics, recent court cases, and new legislation. At the same time, we remained committed to identifying and thoughtfully addressing the timeless legal and ethical challenges associated with the practice of counseling, as well as peeking behind the curtain to anticipate future legal and ethical implications of such changes. Some of the most critical changes in this edition include updated information and resources on HIPAA/HITECH privacy breach notification, communication technology and its effect on counseling, and sub-issues such as cyber-bullying.

 

You took over this book from another author (Attorney Barbara S. Anderson) in 2007. What made you decide to take on this project? Why is it important to you?

In 2007, after decades of collaborating on seminars involving counseling risk management, we agreed to take over the authorship of this book and give it the voice of a practicing counselor (Burt) as well as that of a practicing health care attorney (Nancy). Because of rapid changes in the privacy landscape, technology, compliance issues regarding reimbursement, and legal developments regarding counselor education between 2012 and 2015, we believed it was time to update the book. It has been our great pleasure to create a book that has been so widely embraced by counselor educators, on behalf of students, as well as providing an important resource for practicing professional counselors in all settings.

 

 

****

 

 

The Counselor and the Law: A Guide to Legal and Ethical Practice is available from the American Counseling Association bookstore at counseling.org/publications/bookstore or by calling 800-422-2648 x 222.

 

 

****

 

About the authors

 

Anne Marie “Nancy” Wheeler is an attorney based in Maryland who has extensive experience working with counselors and in the field of mental health. She has managed the American Counseling Association-sponsored insurance program’s risk management helpline for more than two decades; she is also an affiliate faculty member in the Graduate Pastoral Counseling Program of Loyola University Maryland.

 

Burt Bertram is a licensed mental health counselor (LMHC) and licensed marriage and family therapist (LMFT) based in Orlando, Florida who specializes in the resolution of relationship issues. He also provides professional development and counseling to physicians associated with the Florida Hospital System in Orlando and is an adjunct faculty member in the Graduate Studies in Counseling Program at Rollins College in Winter Park, Florida.

 

 

****

 

 

Bethany Bray is a staff writer for Counseling Today. Contact her at bbray@counseling.org

 

Follow Counseling Today on Twitter @ACA_CTonline and on Facebook: facebook.com/CounselingToday

A living document of ethical guidance

By Laurie Meyers May 22, 2014

Branding-Box-EthicsAfter three years of work that included 40 conference calls, numerous face-to-face meetings, two meetings at American Counseling Association annual conferences, two town hall meetings and the evaluation of feedback received from more than 100 ACA members, the 2014 ACA Code of Ethics was approved and released at the end of March, replacing the prior ethics code that had been in place since 2005.

“The revised code makes it clear that we have completely made the transition as a profession from focusing on the needs of the counselor to the needs of the client — that our clients are more important than we are,” says David Kaplan, ACA’s chief professional officer and staff liaison to the ACA Ethics Revision Task Force. “The code now states the values of the counseling profession and the basic ethical principles that all counselors — not just ACA members — are expected to use to inform their practice, teaching, supervision and research.”

The 11 members of the ACA Ethics Revision Task Force, chosen for their backgrounds and expertise in ethics, started the process knowing that every area of the code would need scrutiny. Two areas in particular stood out, however — the sticky question of counselor personal values and the ethical use of technology and social media with counseling clients. These areas wound up influencing the ethics code in its entirety because task force members decided it was important to infuse the issues throughout the finalized ethics language.

“A code of ethics is a living document that is meant to change as the profession grows and develops over time,” says Ethics Revision Task Force Chair Perry Francis, a counseling professor in the Department of Leadership and Counseling at Eastern Michigan University (EMU).

The counseling profession has experienced a substantial amount of growth, development and change in the nine years since the release of the 2005 code, and the Ethics Revision Task Force thought it was important for the 2014 ACA Code of Ethics to address the current professional and societal climate. Therefore, task force members carefully considered feedback from practitioners in the field to ensure the revised ethics code would provide guidance for current practices and challenges in the profession, says Francis, who also coordinates EMU’s counseling training facility and sees clients on a limited basis.

“The major sections were, as expected, social media, technology and distance counseling; clarifying the concepts of boundaries in our connected world; [and] addressing the confusion on the difference between values and competence when working with or referring clients,” he says.

Professional values

The committee’s changes started with the ethics code’s preamble. For the first time, specific professional values are delineated at the very beginning of the document.

“We wanted to state the values of the profession,” says task force member Richard Watts, a professor and director of the Center for Research and Doctoral Studies in Counselor Education in the College of Education at Sam Houston State University in Huntsville, Texas. “We didn’t think previous versions had emphasized — to this degree — the values of the profession.”

Specifically, the preamble names these core professional values:

1) Enhancing human development throughout the life span

2) Honoring diversity and embracing a multicultural approach in support of the worth, dignity, potential and uniqueness of people within their social and cultural contexts

3) Promoting social justice

4) Safeguarding the integrity of the counselor-client relationship

5) Practicing in a competent and ethical manner

“While the professional values of counseling have always been in our code of ethics, we clarified and highlighted them to ensure that there was no confusion on the expectation of professional counselors as they interacted with clients,” Francis says.

Task force members pointed to two legal cases that made it clear that not all counselors or counselors-in-training understood the overarching values and expectations of the profession. Ward v. Wilbanks involved an EMU student in the school counseling program, Julea Ward, who, during her practicum at the in-house clinic, refused to counsel a client who stated on the intake form that he wanted help with issues relating to a same-sex relationship. Ward wanted to refer the case to another counselor-in-training because her religious beliefs held that same-sex relationships were immoral. After being informed that referring a client based solely on personal beliefs was unethical, she was offered a remediation program to help her counsel such clients. Ward requested a formal hearing instead and was dismissed from EMU’s program for violating the ACA Code of Ethics. She later filed a lawsuit alleging infringement of her religious freedom.

The other case, Keeton v. Anderson-Wiley, was similar. Jennifer Keaton, a counseling student at Augusta State University in Georgia, declared her opposition to counseling members of the lesbian, gay, bisexual and transgender community and stated that she was a proponent of reparative therapy. After declining to enter remediation, she was removed from the university’s counseling program. She subsequently filed a lawsuit against the school.

“We kind of had this little ‘out’ in the old code,” says Ethics Revision Task Force member Linda Shaw, professor and head of the Department of Disability and Psychoeducational Studies at the University of Arizona. “The standard that allows you to refer when you feel you’re not going to be effective was stated very generally.”

In other words, a counselor who wanted to refer a client based solely on personal beliefs might sidestep the issue of discrimination by claiming he or she would not be effective counseling the client, Shaw explains. “We just didn’t have the clarity [in the 2005 ethics code] saying that there is a difference between a lack of knowledge and referring because of personal values,” she says.

Adds Watts, “There was a lot of discussion about making sure that we treat all clients inclusively — that clients are not discriminated against because of subjective values or class identity.”

“I think we made it more clear that client welfare is the paramount issue in every mental health code,” he continues. “Refusing to see clients because of sexual orientation or any other subjective reason is clearly discriminatory, and we were concerned that competence was functioning as a smoke screen.”

Online without being out of line

The other big change in the 2014 ACA Code of Ethics is the addition of an entire section on the ethical use of technology and social media with clients.

“I think the most glaring omission in the 2005 code was technology,” says Ethics Revision Task Force member Gary Goodnough, a professor and chair of the Counselor Education and School Psychology Department at Plymouth State University in New Hampshire. “We were not as detailed as we should have been. It really needed its own section.”

“I think as a group we were certainly conscious of the need of bringing the code into this decade in terms of addressing new technologies and questions counselors have about social media,” agrees Shaw.

The new section devoted to social media and technology addresses a growing need in the profession, Francis says. Given the transient and ever-evolving nature of technology, the task force tried to write the guidelines as broadly as possible so that the standards will remain relevant to future applications of technology — even those not dreamed of yet.

“A major goal was to make sure that technology was focused on not just in a new section but infused throughout, like multiculturalism was infused in the 2005 code,” says Michelle Wade, who was a private practitioner and a student representative to the task force until stepping down in July 2013 to join the ACA Ethics and Professional Standards Department as an ethics specialist.

“The profession is in growth,” Wade notes. “Some counselors are still very traditional and only conduct face-to-face sessions, but others are doing distance counseling, both by phone and online.”

This shift brings with it some significant concerns. “Sometimes, I think a lot of our profession thinks that Skype is all you need [to provide] distance counseling,” Wade says.

In reality, Skype is not compliant with the Health Insurance Portability and Accountability Act (HIPAA). But the ethical concerns don’t end there. Distance counselors need to understand that they may be subject to the rules and regulations of both their state and the state in which the client is located, emphasizes task force member Mary Hermann, an associate professor and department chair of counselor education at Virginia Commonwealth University in Richmond.

Counselors must be aware of these differences for every state in which they have a distance client. “Counselors have to make sure that they have a secure means of connecting and that their encryption standards are current,” Hermann says. “Different states may have different standards.”

“Informed consent and disclosure are important in this area,” adds Goodnough, who is also Plymouth State’s graduate program coordinator for school counseling. “What are the risks and benefits? What do we do if the technology fails or there is a client emergency?”

“Distance counseling definitely starts first and foremost with informed consent,” agrees Wade.

As it states in the new code: “In addition to the usual and customary protocol of informed consent between counselor and client for face-to-face counseling, the following issues, unique to the use of distance counseling, technology and/or social media, are addressed in the informed consent process:

  • distance counseling credentials, physical location of practice and contact information;
  • risks and benefits of engaging in the use of distance counseling, technology and/or social media;
  • possibility of technology failure and alternate methods of service delivery;
  • anticipated response time;
  • emergency procedures to follow when the counselor is not available;
  • time zone differences;
  • cultural and/or language differences that may affect delivery of services;
  • possible denial of insurance benefits; and
  • social media policy.”

But after counselors obtain informed consent and find a secure, HIPAA-compliant method of communication, Wade doesn’t think that distance counseling should differ significantly from face-to-face counseling. For example, she says, counselors should already have a crisis plan in place for their regular clients. Distance counseling just requires that counselors become aware of the resources available in the distance client’s location, she says.

Distance counseling is not for every client or counselor, but in some ways, it can be empowering, Wade says. Because the counselor is less available, the client is encouraged to learn what other resources are available and how to use them.

“For instance,” she says, “say I have a client I treat face to face during the summer who has to return to college in the fall. We can do distance counseling, but I would make her aware that the crisis center at her college is there as a backup resource.”

Social media scrutiny

Some counseling professionals have demonstrated resistance to new technology, but others have jumped right in, especially when it comes to social media, Wade says.

In fact, she notes, counselors have not always looked carefully before leaping into the social media pool, getting caught up in a technological and cultural movement that was not even in its infancy when the 2005 ACA Code of Ethics was released. “People were just doing things — participating in social media — and not thinking about it from an ethical perspective,” she says.

Social media guidance for today’s counselors is critical, says Goodnough, who notes that if counselors are going to be online, they need to present a professional image.

There are other issues that the revised code of ethics addresses as well. For instance: “We don’t follow our clients online. We don’t look at their Facebook,” Goodnough says emphatically. “These guidelines are helpful.”

Specifically, the code states that counselors respect the privacy of their clients’ presence on social media unless given consent to view such information.

Wade adds that although Googling a client online is tempting, especially if a counselor feels like the client is holding back, it is still regarded as an invasion of privacy.

When both the counselor and client are online, distinguishing boundaries can be tricky, Wade says. “I wanted to take a firm stand on ‘friending’ clients,” she says. “Counselors really need to distinguish between their personal online presence and their professional one.”

“You have a professional relationship with the client,” she continues, “and seeing you as a person, not just as a professional, could really change the balance of the relationship.”

As the new code makes clear, counselors who are on Facebook both personally and professionally need to set up distinct, separate profiles for each, Wade emphasizes. “Your personal profile should not have the same email or name as your professional profile,” she says.

“If you have a company name, use it for your professional page. Make the security settings on your personal Facebook page as high as possible so that you cannot be found accidentally,” Wade suggests.

For counselors who are new to social media or concerned about privacy on Facebook, Twitter may be a better option, says Wade. “It’s more anonymous than other social media,” she explains.

Twitter is a social media platform in which users “tweet” their thoughts — which may or may not include a link to an article, photo or video — in 140 characters or less. Signing up requires only a name, a username (such as @ACA_CTOnline) and an email address. Counselors can also sign up with their real names or the names of their practice if they wish to tweet about their areas of counseling expertise. For more personal tweeting, anyone who wishes to remain anonymous can sign up using a nom de plume, an anonymous email address and a Twitter name that doesn’t hint at his or her profession, location or true identity (think @Cyrano not @AdlerDC).

At the same time, counselors must remember client boundaries. For example, a counselor should not follow a client’s tweets without permission. Even if permission is granted, think ethically, advises Wade.

“Think carefully about how to handle the information your client may release,” she says. “What if a client posts something suicidal? You will have to deal with it.” Unless a counselor checks his or her social media networks every five to 10 minutes, many of the posts or tweets will not be read in real time, which makes timely crisis intervention unlikely, Wade points out.

If a client asks a counselor to follow him or her on social media, the counselor should sit down and discuss why the client wants to be followed, Wade says. In addition, the counselor should make sure the client understands that social media activity cannot serve as a mode of direct counselor-client communication, she says. If a counselor does decide to follow a client, it is probably best that the counselor and client review the client’s activity in a session so they can discuss the content and address any potential problems.

To respect their clients’ privacy, counselors should not routinely ask them about their social media activity, Wade says. If a client mentions specific activity or incidents on social media multiple times, the counselor might want to ask if there is something the client would like to discuss about his or her online activity.

Ethics Revision Task Force member Lynn Linde, a clinical assistant professor in the school counseling program at Loyola University Maryland, is well aware of the dark side of social media — particularly Instagram, a platform that allows users to upload photos and use a number of filters to change a photo’s appearance. The pictures are public, and people can “like” and post comments to them.

“Cyberbullying is an epidemic on Instagram,” says Linde, who is also a past president of ACA. “Kids don’t understand that once they take a picture and [post it or] send it to someone, it’s there forever. … Cyberbullying can happen anywhere, with anyone.”

For this reason alone, ethically, school counselors must have a basic understanding of social media so they are aware of the issues students may be facing, Linde emphasizes.

Counselors also need to know where the boundaries are. “I’ve gotten a lot of questions from school counselors about whether they can look at a client’s Facebook page,” she says. Linde’s response is that the school itself may have the legal right to access the student’s Facebook page, but, ethically, counselors should always respect their clients’ virtual privacy.

With all the new technologies available, Linde also thinks that counselors need to reconsider one technology that has become old hat — email. Because it is a method of communication that has become ubiquitous, counselors can get lazy about putting the proper safeguards in place. Particularly at schools, she says, everyone emails everyone else — counselors to teachers, counselors to parents, counselors to counselors and so on. “People forget that anything that is put in an email can go anywhere to anyone,” Linde says.

Other changes

The definition of relationship has expanded in the 2014 ACA Code of Ethics. Language has been added that prohibits counselors from having personal virtual relationships with clients, Goodnough notes. In addition, the prohibition on counselors having a relationship with a former client has been brought back after an inadvertent omission in the 2005 code, Hermann says.

Certain types of nonsexual, yet still problematic, counseling relationships are prohibited as well, such as counseling a family member or friend if the counselor will be unable to remain objective, Goodnough says.

Again, however, task force members assert that lack of objectivity should not be confused with the imposition of personal values.

The revised ethics code has also removed the end-of-life exception to the referral rule. Counselors may no longer refer a client because he or she is terminally ill and considering either physician-assisted or self-inflicted suicide. If the client wants to discuss the decision, counselors should check the laws in their state. If a counselor’s state has legalized physician-assisted suicide, then any discussion is legally covered. If the state does not allow physician-assisted suicide, counselors should consult an attorney to see if that ban includes discussing the issue, Kaplan says.

The 2014 code has also clarified “duty to inform.” If a client has revealed a diagnosis of a life-threatening disease and the counselor is concerned that a third party may be at risk, the counselor does not have to confirm his or her client’s diagnosis but should check state laws to see if it is legal to inform the third party, Kaplan explains.

Another area that has been clarified in the revised code is providing pro bono services. “The pro bono issue was one we kept coming back to, deciding what we meant by ‘pro bono,’” Shaw says. “Did pro bono mean reduced rate, or in some way addressing unmet needs?”

The task force also discussed whether it was fair to ask counselors who might be struggling financially to offer free or reduced rate counseling, Shaw says.

“We wanted to broaden the notion of what pro bono means,” Goodnough says. The revised code says that counselors should make a reasonable effort to engage in pro bono activity, but this can include public speaking, putting free professional information on their websites or volunteering counseling services in the wake of a disaster, Kaplan explains.

“The pro bono requirement is in many ways related to social justice,” Shaw says. “It is an attempt to do what you can as a counselor to improve access to services or information. It means sharing your knowledge and expertise in ways that benefit others, without posing an unreasonable burden on you.”

The revised ethics code also attempts to clarify counselors’ responsibilities with mandated clients. As Goodnough points out, these clients may be mandated, but they don’t really give up their autonomy. “Let them know what the reporting requirements are, the type of [information] we might be sharing, who we might be sharing it with and what the consequences are for not participating,” he says. “But they can still refuse counseling services.”

Another ethics issue the task force addressed was where client confidentiality starts and where it ends. Under the revised code, the responsibility to protect confidentiality begins even before a counselor takes on a client and continues after the client’s death.

“A good example comes from college counseling centers,” says Francis. “It is not uncommon on a college campus for a dean of students or a member of the faculty to refer a student for counseling services. In some cases, the referring agent may follow up to see if the student has sought services.”

“The ethics code now point out that a prospective client — someone who has an appointment but has not yet come in for services — is afforded the same privacy and confidentiality as a regular client,” he explains. “We do not release information without permission or sound ethical or legal justification.”

The 2014 ACA Code of Ethics also includes updated requirements for counselor educators. “The code now makes it their ethical obligation to teach classes within their areas of competency, provide current information and provide students with direct assistance with
field placements and career assistance,” Kaplan says.

Educators and researchers will find some significant changes in the area of ethical research as well. “The emphasis on anonymity of persons and case studies was strengthened,” Watts points out. “If you are going to use a case study, you should get permission. … The use of clients, students or research participants is appropriate only if the person has seen and agreed to it or details are obscured enough that they cannot be identified.”

Thinking and acting ethically

The 2014 ACA Code of Ethics requires counselors to use a problem-solving model when confronted with an ethical dilemma, Kaplan says.

“There are a number of models out there,” Shaw adds. “Which one [to use] is not as important as that we ensure that counselors are familiar with one, have working knowledge of it and use it to sort out some of the thornier issues.”

But the Ethics Revision Task Force members also hope the entirety of the code, including its tone throughout, will guide counselors when they are in doubt.

“I felt that we needed to work at making the code more than just specific guidance for specific situations,” Shaw says. “We needed to create a context for counselors’ ethical conduct by having a mindful, thoughtful approach to practicing ethically.”

“The whole code of ethics needs to be looked at in its entirety. It’s all connected,” adds Linde. “I hope the message comes across that we want people to be thoughtful.”

Concludes Shaw, “If you asked me what the most important change was — technology is going to keep changing, but I think the values issues questions … are really fundamental to who we are as counselors. To me, it is the most profound change in the code.”

 

****

 

The five most common ethical concerns

American Counseling Association members receive free confidential ethics consultations as a benefit of their membership. Michelle Wade, an ethics specialist in the ACA Ethics and Professional Standards Department, handles many of these calls and emails. She provided Counseling Today with a list of the five ethical concerns that ACA members seek guidance on most frequently.

Although she here suggests applicable areas of the revised ACA Code of Ethics for each of the five concerns, she cautions that none of this should be taken as official ethical advice. To receive assistance with a specific ethical dilemma or question, contact the ACA Ethics Department at 800.347.6647 ext. 314 or ethics@counseling.org.

Subpoena questions/release of information

There are several ethical standards within the 2014 ACA Code of Ethics that need to be considered regarding the release of client information: A.1.a., A.2.a., A.4.a., B.1.c., B.1.d., B.2.d. and B.2.e.

Breaking confidentiality/mandated reporting

Note that the ACA Code of Ethics does not address mandated reporting directly because every state has its own regulations. Therefore, it is important to understand what your state’s regulations are regarding reporting. With regard to ethics, Wade refers counselors to standards B.2.a. and B.2.e. as well as A.2.a., B.1.b., B.1.c. and B.1.d.

Extending professional boundaries

Navigating the relationship between counselor and client can be difficult at times. The ethical standards that address this situation within the 2014 ACA Code of Ethics are found in A.6.

Distance counseling/social media/technology

There is a brand-new section within the 2014 ACA Code of Ethics that addresses distance counseling, technology and social media. That section (Section H) provides some guidance and considerations when working with technology and distance counseling as well as social media.

Personal values

“ACA celebrates that our members are all different and would never ask anyone to change who they are,” Wade says. “However, ACA would ask counselors to put themselves second to their clients. In the 2014 ACA Code of Ethics, A.4.b. was expanded to include the necessity of obtaining training and multicultural competency as a counselor. A.11.a. and A.11.b. were also added to suggest that referrals need to be based on competency, not values, and the reasoning for that was, again, the client comes first.”

 

****

 

Getting familiar with the revised ACA Code of Ethics

In addition to the hard copy of the 2014 ACA Code of Ethics that was packaged with the June issue of Counseling Today, ACA members can access the code online at counseling.org/ethics.

A Spanish language version of the code is available here: counseling.org/docs/default-source/ethics/2014_code_of_ethics_ph_spanish.pdf?sfvrsn=2

To familiarize themselves with the differences between the 2005 and 2014 ethics codes, counselors may also wish to listen to a podcast, “The NEW 2014 Code of Ethics: An Overview,” also available at counseling.org/ethics.

Additional resources, including a six-part webinar series (worth a total of six CEs), can be found at counseling.org/continuing-education/webinars.

Also, beginning next month with the July issue, Counseling Today will feature a new column series that highlights the most significant changes in the revised ethics code.

 

****

 

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

 

Letters to the editor: ct@counseling.org

 

****

Bio/neuroethics and counseling: A novel partnership

Kevin Wreghitt May 1, 2012

Bioethics is the multidisciplinary field that applies knowledge of health care policy, law, philosophy, sociology and dispute mediation/resolution to solve moral dilemmas in clinical practice and research in medicine and allied professions. Human cloning and stem cell research, which are hotly debated in society, are examples of bioethical issues. Beginning roughly in 2002, neuroethics emerged as a subdiscipline of bioethics that seeks to solve moral dilemmas arising from neuroscientific research and clinical cases of brain trauma and mental illness.

Daniel Buchman of the National Core for Neuroethics at the University of British Columbia said this about his field: “Neuroethics has deep roots in ancient philosophical discussions of mind and brain and has joined this history with contemporary thinking in biomedical ethics and neuroscience devoted to elucidating ethical challenges prior to and during the transfer of new research capabilities to the bedside.” The use of psychiatric drugs and other treatments for patients who are mentally ill, issues related to neuroscience and national security (such as brainwashing) and the use of “designer drugs” to change one’s personality or enhance cognitive function are examples of neuroethical issues.

In clinical or consultative ethics cases, which revolve around an identified patient/client and his or her cognitive status, counselors can play an important role by uncovering the psychological issues belonging to that person and the people around him or her and explaining how those characteristics might influence bioethics or neuroethics decisions. Therapists could assist bio/neuroethicists, the courts and others in keeping those psychological variables “in check” and preventing irrational behavior from being destructive to the ethical decision-making process.

What often receives less consideration, however, are the psychological factors of the participants trying to reach bio/neuroethical decisions. For instance, what types of psychosocial interactions occur between the individuals involved in clinical bio/neuroethical discussions? It is reasonable to suspect that issues such as personal values and cultural issues are presented, but is that enough? Are there situations that go beyond the capabilities of bio/neuroethicists and require more of a mental health approach?

Case of persistent vegetative state

According to a 1991 Multi-Society Task Force on PVS (persistent vegetative state) as cited in The New England Journal of Medicine, individuals are considered to be in PVS when they have been unconscious for longer than 12 months due to brain trauma and also have a poor prognosis. Higher cognitive processes are nonfunctional, with awareness of self and the environment being absent. These patients cannot communicate or follow commands in any way. Sensory experiences may occur but have no conscious meaning.

One of the most famous cases concerning PVS centered around Terri Schindler Schiavo, who died on March 31, 2005, almost two weeks after her feeding tube was removed and her hydration cut off under court order. Terri’s death was preceded by a lengthy court battle between her family and her husband, Michael. The psychosocial questions and issues surrounding the Schiavo case are numerous. What was the state of the marriage between Michael and Terri before she suffered massive brain damage and was put on life support in 1990? What did life and death mean to each participant in the conflict?

Perhaps psychometric testing (for example, the Minnesota Multiphasic Personality Inventory, or MMPI-2) could have assisted in identifying who was best mentally fit to make decisions on Terri’s behalf. Was Michael Schiavo violent toward Terri as some claimed? More questions could be added as possible psychological influences. None of these issues came out in the bioethics proceedings.

Clearly, PVS cases are complex, and the mental health of each participant and the family as a whole has to be taken into account. Mental health and ethics professionals need to ensure that a careful psychological examination takes place, and the courts should require such assessments. The people involved in PVS cases are dealing with heart-wrenching experiences, and psychological assistance is needed.

Health care system implications

On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act, and a few days later, he signed the Health Care and Education Reconciliation Act. Among other major reforms, these two laws allow for 32 million Americans to obtain health insurance who do not currently have coverage. The future of health care delivery is in question, not only because of new governmental regulations and bureaucracy, but because our wavering economy might influence any outcome as well.

New moral and legal questions will challenge the fields of bio/neuroethics in the United States because of health care reform. For example, will new regulations interfere with best practices in medical and mental health services? Will vulnerable populations have difficulties accessing needed specialized treatments and services? Perhaps treatments that are offered now will be excluded or reduced because of cost or rationing. If some of these negative consequences take place, there might be emotional fallout. Everybody hopes the new policies will benefit our health care system, but counselors should remain cognizant of the potential pitfalls of this new system — especially because no one really knows yet how or if it will work.

The field of neuroplasticity has offered discoveries on how patients can rebuild neural networks, even after brain damage, through certain therapeutic experiences and targeted exercises. There are neuroethical concerns, however, that some systematic difficulties might impede clinical practice. In the fall 2009 Focus newsletter of the Center for Health Care Policy and Ethics at Creighton University in Nebraska, Caroline Gaudet and Trisha Cochran said, “Given the limited length of stay and reimbursement for in- and outpatient rehabilitation services, clinicians have a sense of urgency to get their patients as functional and independent as possible as quickly as possible, often having to teach compensatory behaviors instead of fostering neural recovery.”

Counselors need to be sensitive to ethical and societal questions that might affect their clients who have various types of illnesses. Sociological changes such as health care reform can usher in much hope and, simultaneously, significant concern. Such opposing outcomes probably depend on what people expect medical or mental health care to do for them. As another example, professionals who work with psychiatric clients know that any change in their environment might cause these individuals anxiety and perhaps trigger a total relapse of their conditions. Changes in the U.S. health care system might become a direct or indirect trigger for such challenges.

Other bioethical issues

Beyond the neurological areas, there are other bioethical issues that may require mental health attention. For example, should medical providers assist in ending the life of terminally ill patients? With biotechnological advances and societal changes, the bioethical, psychological and medical issues of death and dying have become more complicated than they once were for persons with terminal illness and their families. Recommending that patients have feeding tubes implanted or making decisions concerning who should receive an organ transplant presents both bioethical and mental health implications.

These represent only a couple of examples of the bioethical issues that health care clinicians face daily. We should ask ourselves whether counseling and therapy might help to improve the prevalence of healthy and ethical outcomes in these scenarios. Counselors must bear in mind that there are often competing values between the patient, the health care team, the family and society in many such situations.

Counseling initiatives and strategies

Organizations such as the American Counseling Association have the opportunity to promote clinical practice, research, legislative advocacy and education in this specialized area. People vying for guardianship in court (for example, in the Schiavo case) should be psychologically screened so the party that is most mentally fit for the task can be identified.

It might be beneficial for ACA to partner with other organizations such as the American Society for Bioethics and Humanities; the American Society of Law, Medicine & Ethics; the Neuroethics Society; and the National Bioethics Advisory Commission to create initiatives that would foster integration between our respective fields. We could partner with these organizations to devise new protocols for cooperation between bio/neuroethicists and counselors. More training opportunities on bioethical issues for the counseling profession would also be beneficial. Perhaps some counselors might want to earn another degree in bio/neuroethics and develop a subspecialty in clinical or research areas.

Health care workers who come into contact with these types of cases supposedly receive ongoing bio/neuroethics training. This does not mean, however, that such staff could not use additional emotional support as well. This could involve values clarification classes as well as individual or group psychotherapy. A mental health clinician, independent of the case being considered, could be included in bio/neuroethical discussions to identify and assist with the psychological issues that may arise.

Offering a grief model might be helpful. Part of the difficulty might be that each person is at a different place along the grief journey. The father may have accepted the reality, while the mother might be in denial and a nurse could be bargaining. Counselors have to help identify and reconcile the psychosocial variables in any health care dilemma.

The patients who can participate in the decision-making process should be in counseling/therapy to help them cope with what is happening to them. The counselor might have to assist these patients in reshaping their expectations to bring about a resolution. Bear in mind, “incompetence,” if imposed, is a legal term — not a medical or psychiatric diagnosis. Even though the legal profession pronounces some people to be incompetent, it doesn’t necessarily mean the person cannot think for himself or herself. However, he or she may need added support in making decisions. The person should not be dehumanized by the label of incompetence or by the bio/neuroethical process, and counselors can play a role in ensuring that does not occur.

It will be important in the coming years for counselors to monitor changes in the U.S health care system, not only as these changes pertain to the counseling profession but to medical professions as well. Starting in 2014, when health care reform goes into full effect, some clients might experience confusion and distress. Counselors will be needed to help individuals navigate both expected and unforeseen challenges. If systematic difficulties become acute or long term — necessitating rationing of services, for example — this could lead not only to a medical crisis but to a mental health crisis as well. If so, strategies and changes to the counseling profession might need to be developed.

In the beginning of the bio/neuroethics process, the individuals involved should be made aware that they have biases that will come out. People should be encouraged to pinpoint their own motives and the meaning of the actions they take. For those who want to hide behind the objective professional cloak, they should be reminded of their humanity and that their motives will ultimately escape from the mental iron curtain. Finally, the legal profession might need to be educated about the influence of psychological factors in these dilemmas. The Schiavo case illustrates what can happen when such psychic forces are overlooked.

Conclusion

I’m writing this article not as a bio/neuroethical expert but rather as a casual observer of the process and a newcomer to the counseling profession. I am also a quadriplegic due to cerebral palsy from birth, so I can empathize with people with disabilities who might feel that others are in control of the quality of their lives. It is frustrating to know others are in charge of making choices on one’s behalf, even though some patients/clients might not be as aware of this due to their inability to comprehend. Counselors can play a significant role in assisting patients/clients, families and professionals to cope with bio/neuroethical issues. I think it would be worth the effort.

Kevin Wreghitt is a mental health clinician and a Massachusetts mental health counselor licensure candidate at Coastal Connections Inc., an adult developmental disability day program. He has an interest in counseling clients with neurological injuries. Contact him at kevinwreghitt@verizon.net.

Letters to the editor: ct@counseling.org

Look out – and beyond: The Singularity is coming

Jeffrey T. Guterman October 1, 2011

Robotic counselors. Virtual solutions. Personality uploading.

These are not science fiction fantasies but real possibilities that lie just beyond the horizon for the field of counseling. According to some futurists, a trend of great historical magnitude is unfolding: the exponential growth of technological development leading to an event referred to as the Singularity.

Ray Kurzweil, author of the 2005 best-seller The Singularity Is Near: When Humans Transcend Biology, predicts that the pace of technological development is becoming so rapid that the rate of progress will become vertical by the middle of this century. Then, in a short period of time — perhaps in one single moment — the world may be transformed beyond recognition. It is this special point in time that is referred to as the Singularity.

The Singularity could change everything as we know it, and the implications for counseling are significant. The Singularity may challenge us to reconsider the multicultural dimension that is a defining feature of our profession. The Singularity may take disciplines such as neuroscience to a new frontier. The Singularity may also challenge the fundamental question, “What does it mean to be human?”

What is the Singularity?

The cause of the Singularity would be the creation of greater-than-human artificial intelligence (AI). As a result of advances in the development of AI and complex networked supercomputers, a positive feedback loop would result whereby smarter computers are capable of designing even smarter computers. This feedback loop would be so sudden and rapid that AI would eventually develop. In effect, machines would have consciousness and act like real people and, conversely, humans would transcend their own biology by augmenting themselves with AI.

Some futurists question if the Singularity will happen at all. In particular, some question whether a computer will ever be able to attain human intelligence. But not Ray Kurzweil! He developed the theory of accelerating returns, which holds that the rate of technological progress is exponential rather than linear. Most humans, according to Kurzweil, are linear thinkers. We understand progress as occurring in single, incremental steps (for example, 1 + 1 = 2, then 2 + 1 = 3, then 3 + 1 = 4, and so on). In contrast, exponential progress occurs when the growth rate is in proportion to current and subsequent values (1 + 1 = 2, then 2 + 2 = 4, then 4 + 4 = 8, and so on). Consider that it took about 30,000 years for humans to develop agriculture, but it took only a quarter century for the first computers, which took up the size of a large room, to be condensed into a hand-held gadget. And in only five years since its development, social media has become ubiquitous.

It is astonishing to trace exponential technological progress throughout human history and to consider where it might lead. Increasingly, people have used technologies as extensions of the self  — for example, eyeglasses, the Sony Walkman, pacemakers and prostheses. As a result of technological advances, it is foreseeable that some humans might be almost entirely nonbiological within the next 50 years. Progress in the field of biotechnology may even make it possible for humans to someday achieve immortality.

The changing nature of humanity

The Singularity may change human nature itself and raise questions about who we are and what we will become. Since the beginnings of counseling, the field has developed numerous theories of human nature. In particular, counseling has been influenced by a tradition that conceptualizes and values the self. For example, psychoanalysis theorizes that there are conscious and unconscious parts of the self. Person-centered therapy holds that there is a social self and a real self. Although these and other counseling theories disagree about how to conceptualize and intervene in relation to the self, most agree that the self is a central locus of problems and change.

Coinciding with the postmodern movement, a marked shift occurred in the field, with the self being situated in conversational, cultural and relational domains. From a postmodern perspective, the self is understood as a narrative phenomenon that is socially constructed. As technology develops exponentially in the 21st century and humans become increasingly augmented by technology, the nature of humanity itself may change and two new types of human beings could emerge: transhuman and posthuman.

Transhuman refers to a person who has become so significantly augmented by technology that, in effect, he or she has transcended the original definition, based on biology, of what it means to be human. Some people already consider themselves to be transhuman. Transhuman also refers to a human in transition who seeks to learn about new technology and might be preparing to become posthuman.

Posthuman refers to a completely synthetic entity with AI. Such beings likely could appear in the middle of this century. A posthuman is a superintelligent robot, but not the type we have become accustomed to in science fiction. Posthumans would be able to share their experiences with one another, change their bodies into data forms and choose to reside in computer networks. They might be able to think, feel and behave very much like real people. It is also conceivable that humans and transhumans will be able to transform themselves into posthumans. When considered in this way, the relationship between humans and posthumans is not about “us” and “them,” but rather about how humans may gradually transform into increasingly posthuman beings.

Implications for counseling

Many questions arise, especially for the field of counseling, if we imagine a world in which humans, transhumans and posthumans coexist. The question of what it means to be human may be thrown into critical relief as machines perform more complex human functions and as we ascribe human qualities to these machines. Even today, we refer to some of our machines as if they have personalities. For example, one might refer to his or her car as “my baby.” If computers possess AI and become superintelligent, there would be a real convergence between biology and machine. Biology would no longer necessarily define humanity. Instead, a set of characteristics and capabilities might determine what it means to be human. Among the questions that may arise for the counseling profession:

  • How might counseling be changed in a world coinhabited by humans, transhumans and posthumans?
  • What unique opportunities and problems might humans, transhumans and posthumans face in this new world?
  • How might counselors, who themselves may become transhuman or posthuman, prepare to meet these new challenges?

One possible scenario is that a human counselor encounters a transhuman or posthuman client. Or a posthuman counselor might provide counseling to a human or transhuman client. As a result of future technology, people might even possess the capability of recreating the self in ways that are unimaginable today. Software uploading to the brain, which is already being done for individuals with Parkinson’s disease, could allow one to experience and manifest alternative personalities. Personality uploading may permit an individual to be anyone or anything he or she wishes to be, presenting new challenges and opportunities for clients and counselors alike. This would challenge the traditional assumption that an essential self exists that is “just there” and instead support the postmodern understanding that the self is an evolving, fluid phenomenon.

Reconsidering our mission, ethics code and multicultural competencies

The Singularity may also challenge the American Counseling Association to one day reconsider its mission and the ACA Code of Ethics. ACA’s current mission statement is as follows:

 

The mission of the American Counseling Association is to enhance the quality of life in society by promoting the development of professional counselors, advancing the counseling profession, and using the profession and practice of counseling to promote respect for human dignity and diversity.

 

If we accept that transhumans and posthumans may someday inhabit the world, then ACA’s mission might need to be revised to account for these new beings. Moreover, a review of the ACA Code of Ethics and the Association for Multicultural Counseling and Development’s Multicultural Counseling Competencies may be needed to address the coexistence of these multiple, diverse forms of humanity. In particular, these guidelines would need to address diversity and multiculturalism from a broader perspective. The scope of diversity and multiculturalism has already been expanded beyond race, ethnicity and gender to include other domains such as age, family structure, sexual orientation and disability. As people become increasingly augmented by technology, new opportunities will arise for counselors to promote respect for the dignity and diversity of transhumans and posthumans as well as humans.

In the future, our mission, our ethical imperatives and our multicultural competencies may in some respects be no different than they are today. The Singularity may, however, require what philosopher Peter Singer refers to as expanding our circle of empathy. According to Singer, human progress has involved an expanding moral circle.

Through time, the circle of whom we count as members of our group has expanded to include other races, other sexes, other religions and other species. It is not a stretch to imagine humans accepting and embracing transhumans and posthumans. But work still needs to be done in the area of social justice strategies aimed at promoting respect for the dignity and diversity of human beings. It follows that the inclusion of transhumans and posthumans in the world would present society with challenges that counselors need to be prepared to address.

What now?

Kurzweil suggests the pace of technological change will become so fast in the next 40 years that you will not be able to keep up unless you enhance your own intelligence with AI. Already today, it is essential for many of us to access the Internet on a regular basis. Some people feel they would be lost without their smartphones. The good news is that more and more people are able to access the new technologies, and the playing field will continue to level. But are people prepared for the exponential technological change that may be coming?

Counselors are all too aware of the importance of preparing for change. Change is the business of counseling. But there has never been a change in human history like the change occurring now — a change that may culminate in the Singularity. If you observe closely, you will find many people are being affected by the sudden, rapid increase in technological change. Sociologist and futurist Alvin Toffler came up with a name for this condition, which served as the title of his 1970 book, Future Shock. In this seminal book, Toffler predicted that people would become disconnected, overwhelmed and “future shocked” as a result of accelerating technological and social change. The cause of this condition, according to Toffler, is “too much change in too short a period of time.” Basically, technological evolution is outpacing our biological capability to manage it.

We need to find ways to help others with these new challenges. Already, many counselors are dealing with technology-related issues such as online counseling and Internet addiction. But this is only the beginning. New possibilities, some of which are unimaginable today, are closer than you may think. Counselors, educators and especially students, the future of our profession, need to be willing and prepared to look out — and beyond. The Singularity is coming!

Suggested websites

Nick Bostrom- nickbostrom.com

Ray Kurzweil- kurzweilai.net

Singularity Hub- singularityhub.com

Transhumanist FAQ- extropy.org/faq.htm

Suggested readings

Human Enhancement edited by Julian Savulescu and Nick Bostrom

Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies — and What it Means to Be Human by Joel Garreau

The Age of Spiritual Machines: When Computers Exceed Human Intelligence by Ray Kurzweil

The Singularity Is Near: When Humans Transcend Biology by Ray Kurzweil

Jeffrey T. Guterman is associate professor of counseling in the Counseling Department of the Adrian Dominican School of Education at Barry University in Miami Shores, Fla. Contact him at jguterman@mail.barry.edu.

Letters to the editor:
ct@counseling.org

ACA kicks off major revision of profession’s Code of Ethics

Jonathan Rollins June 1, 2011

When the American Counseling Association last completed and released a revised version of its Code of Ethics in October 2005, issues of multiculturalism and diversity received special focus because they were increasingly coming to the forefront of counseling practice but had not been addressed in much depth in previous versions of the ethics code.

The 2005 revision also highlighted the ethical use of technology applications, including guidelines for a then-burgeoning movement by counselors to launch and maintain professional websites. Fast forward roughly six years, and a technological revolution that wasn’t on many people’s radar screens in 2005 — social media — has opened up a new frontier of ethics questions and implications for counselors.

Not coincidentally, ACA announced this spring that it would again be undertaking a major revision of the ACA Code of Ethics, which began with an April call for participants to serve on the Ethics Revision Task Force. The process of revising the ethics code is expected to take three years, with a goal of presenting a final draft for approval by the ACA Governing Council in March 2014. The rapid rise of social media in and of itself did not determine the need for a revised code of ethics — in practice, ACA reviews and revises the code every seven to 10 years — but the widespread use of Facebook, Twitter and other social media applications did have some influence in getting the latest revision process started sooner rather than later.

“There definitely are some newer areas of concern within our profession that need to be addressed by the ACA Code of Ethics,” says ACA President Marcheta Evans. “Social media stands out as one of those areas. With Twitter and Facebook, there are some ethical boundary issues just floating out there with counselors.”

Even so, the revision process will focus on far more than social media. The Ethics Revision Task Force will be reviewing and updating all sections of the existing ACA Code of Ethics as appropriate, while also trying to anticipate emerging issues that could present counselors with ethical dilemmas down the road.

“The ACA Code of Ethics helps to define who we are, how we operate and how we function as counselors,” Evans says. “Revising our ethics code periodically is part of our professionalization. We want it to be as extensive and as inclusive as it can be while also looking at issues that may pop up in the future. It’s a positive for the public to see us examining ourselves as a profession as we move forward.”

In appointing ACA members to serve on the Ethics Revision Task Force, Evans says she will be “looking for diversity of thought. That diversity covers everything from ethnicity to gender to background and experience. I’m really open to having a lot of color and flavor on this task force so we can perhaps uncover some things that we may have missed or that hadn’t become apparent yet when we did previous revisions.”

The desire is to assemble a task force composed of counselor practitioners from varied settings and specialties who have experience applying the ACA Code of Ethics in their work as well as counselor educators who have engaged in scholarly activities pertaining to the ethics code. “I’m excited to be able to have a hand in moving this very important process forward,” says Evans, who will review applications and appoint eight to 10 ACA members to the Ethics Revision Task Force before she concludes her term as ACA president at the end of June.

“It’s important to get a cross-section of counseling professionals, inclusive of those teaching and practicing, involved in the revision process because it will make for a richer review and update,” says ACA Executive Director Richard Yep. “The ACA Code of Ethics is a central part of the counseling profession, and it helps define who our members are at their very core, while also reflecting ongoing changes in society. I would encourage every member of ACA to participate in this process in some way.”

The proposed timeline for revising the ACA Code of Ethics calls for ACA to solicit input from its members this coming fall regarding new areas that the code needs to address as well as existing standards that may need to be changed in some way. After collecting and reviewing this input, the Ethics Revision Task Force will turn its attention to composing a draft revisedCode of Ethics between April 2012 and March 2013. Once the draft revision is released, ACA will issue a call for feedback from its members, and the task force will then consider this feedback in developing a final draft to be presented to the ACA Governing Council.

“The ACA Code of Ethics provides the counseling profession with our framework for acting in the best interests of clients, students and supervisees,” says ACA Chief Professional Officer David Kaplan. “As such, we have taken its revision very seriously, and President Evans has mapped out a comprehensive three-year approach for updating the code that includes expert practitioners and scholars and multiple layers of input and feedback from a variety of constituencies — the most important being the ACA membership.”

All ACA members agree to abide by the ACA Code of Ethics when they join the association, and more than 20 state licensing boards use the ACA code as the basis for their standards of practice and the adjudication of client complaints.

Jonathan Rollins is the editor-in-chief of Counseling Today. Contact him at jrollins@counseling.org.

Letters to the editor: ct@counseling.org.

 

****

Editors note: the revised ACA Code of Ethics was approved and released in March 2014. See: ct.counseling.org/2014/03/2014-aca-code-of-ethics-approved-by-governing-council/

****