Tag Archives: Ethics & Legal Issues

Ethics & Legal Issues

Voice of Experience: A frightening truth in the profession

By Gregory K. Moffatt February 23, 2022

I never get through a single supervision session without addressing ethical issues. Ethical behavior must be at the center of every thought we have and every action we take with our clients, from first contact to closure. As counselors, we are schooled on the importance of ethics from the opening hours of our graduate programs, and in my home state at least, ethics appear prominently in the licensure requirements as one of nine areas of focus.

But there is a frightening truth in our profession. After we leave our graduate programs and finish supervision, nobody is there to tell us what to do. It is up to us to focus on ethics and, sadly, this is where things start slipping.

Over my many decades in the profession, I have heard story after story about lapses in ethical conduct. I have also witnessed firsthand the questionable behavior of some professionals in the counseling field. These behaviors range from individual blind spots related to confidentiality, diversity or boundaries to systemic issues within agencies.

Here are a few examples (details have been changed slightly to, well, remain ethical). After a workshop that I presented on ethics, a counselor with many years in the field asked me if it would be acceptable for him to sell his beach condo to a current client. Um … no. He was stunned at my answer. Really?

A counselor stopped me in the hallway at a break during a conference to thank me for the referral of a client — whose name she said out loud. She then proceeded to tell me about the client’s backstory. I couldn’t believe my ears, and it took me a minute to compose myself and stop her from going further.

A former student expressed concern about the agency where she was working. The agency was encouraging its counselors to “push continued therapy” with full-pay clients, even when similar sliding-scale clients were quickly made ready for termination. It appeared that the focus on the bottom line in this agency was taking priority over clients’ best interests. Even more troubling, none of the many fully licensed clinicians in the agency had protested.

These examples are just the tip of the iceberg of the things I have seen or heard. How many more scenarios are out there that we don’t even know about? That, dear colleagues, should make us all shudder.

r.kathesi/Shutterstock.com

Dishonest people exist in every profession, including ours. But let’s set those dishonest few aside for a moment. The majority (by far) of questionable ethical behaviors that I’ve encountered in our profession have not been committed by dishonest people. Instead, most have been committed by reasonable counselors doing good work who have strayed over time from the course they set out on in the early part of their training.

I propose three reasons (beyond blatant dishonesty) that get at the root of these ethical lapses. First, is blind trust. In graduate school, counseling students can discuss ethics in the sanitized setting of the classroom, without the complications of real clients or supervisors sitting across from them.

When they start practice, they have the same blind trust in their supervisors or agencies that they had in their graduate school. Yet this is where they most need to put their ethics training into practice. But how realistic is it to expect a clinician-in-training to question a fully licensed and experienced supervisor? Even more intimidating, how likely is it that a clinician-in-training would challenge an entire agency?

“This is how it is done, I guess,” is an easy, and understandable, result in such a context. Those mistakes are then repeated and perpetuated.

Second is the termite analogy. Termites, despite their horrible reputation, are not that damaging if caught early. They work slowly, and all it takes to protect a home is to have regular inspections and to intervene if termites appear. No major damage will be done. But the nibbling away at the foundations of a home can eventually lead to its collapse, or at the very least some expensive repairs.

The same thing happens with ethical breaches. Most clinicians who sit before a state ethics panel have not committed egregious breaches all of a sudden. Their behaviors have slipped a little at a time until the metaphorical structure of their ethical life is badly damaged.

And, finally, these breaches happen because of a simple loss of focus. I don’t get angry easily, but I lose it if I hear clinicians talk about “having to do” their ethics hours. If clinicians see these hours as “obligations,” they are already traveling the wrong road.

These clinical trainings are imperative to ensure that ethical standards are, as with my supervisees, always at the center of everything we do. We should welcome ongoing training in ethics, even if it wasn’t required.

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Gregory K. Moffatt is a veteran counselor of more than 30 years and the dean of the College of Social and Behavioral Sciences at Point University. His monthly Voice of Experience column for CT Online seeks to share theory, ethics and practice lessons learned from his diverse career, as well as inspiration for today’s counseling professionals, whether they are just starting out or have been practicing for many years. His experience includes three decades of work with children, trauma and abuse, as well as a variety of other experiences, including work with schools, businesses and law enforcement. Contact him at Greg.Moffatt@point.edu.

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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.

Voice of Experience: Proceed with caution when advocating on clients’ behalf

By Gregory K. Moffatt July 28, 2021

I wish it had happened only one time, but unfortunately, that wouldn’t be the truth. Several dozen times over my career, I’ve been asked to assess a case for a business, school or lawsuit in which someone from the mental health community has written a letter on behalf of a client. That letter, too frequently, has turned out to be a disaster.

One letter I reviewed for a company in a lawsuit was from a psychologist. The clinician wrote a two-page letter full of her feelings about the client, but it did not address in a simple sentence the one thing requested by the employer. The letter couldn’t have been worse.

(Author note: Some information has been changed in each of these cases to protect the identities of those involved.)

In another case, also a lawsuit, the plaintiff’s clinician stated that she had “never” suffered from depression, which was a point of contention in the suit. There is no way this clinician could have supported that statement unless she had been the person’s clinician since birth.

One of my colleagues was about to provide a letter to the court on behalf of his adult male client. The man had been his client for some time as my friend helped him through the early stages of divorce. The man’s attorney asked for a letter stating that the man was a good father.

As was the case in the previous example, my friend couldn’t have truly known whether the man was a good father. He had never worked with the man’s children or observed him in a parenting role. Beyond that, my friend had no expertise in child custody. Testimony here would have been a huge mistake.

And here is one more example: A clinician agreed to give a deposition for her adult female client. The clinician had worked with the woman for a very long time and knew her well. She wanted to help the woman, who had sued her employer for harassment and disability. The clinician presented no doubt that returning to the workplace would have been damaging to the woman’s trauma recovery.

However, at the deposition, the attorney for the employer cornered her, and the clinician was forced to admit she had no real training in trauma, no experience in workplace disability, and had only the woman’s word for what had occurred — facts that became even more clear in the deposition.

As a result, the client lost her lawsuit against the employer and, even worse, felt betrayed by her clinician and withdrew from therapy.

It is because of situations such as these that many clinicians choose not to do this type of advocacy for clients. While we are bound by counselor ethics to be our clients’ advocates “when appropriate” (see Standard A.7.a. of the 2014 ACA Code of Ethics), our ethics do not specify how we are to do that. If you choose not to engage in court, school or workplace advocacy, it should be stated in your informed consent.

As my vignettes above illustrate, there are many hazards associated with advocacy, but those risks alone shouldn’t stop you. If you choose to advocate for your client, here are three simple rules.

Rule 1: As was presented by Jean Peterson in a 2017 article for Counseling Today, you must be clear whether you are “testifying” (either in court or in a business setting) as an expert witness or as a fact witness. As an expert, you can provide an opinion, but it must be based on your expertise (see Rule 2). As a fact witness, you are testifying only to what occurred. For example, “The client has kept all appointments as required by the employer.”

Rule 2: Never step outside your area of expertise and training. If you have expertise and are called as an expert witness, state your case. But if you are asked about something that requires you to move outside that area, do not comment.

Rule 3: If you are going to provide a letter or deposition for a client as their advocate, always get the opinion/oversight from someone with experience. Having legal counsel would be wise as well.

Summary: Most of the mistakes made in the anecdotes in this article are related to two issues. First is that we want so much to help our clients that we don’t think about the ramifications of what we might be getting into. Second, most clinicians don’t have any training in advocating for clients, and CE opportunities in this area are rare. As a result, most clinicians simply don’t know what they are doing. So, be careful.

Salivanchuk Semen/Shutterstock.com

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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.

Pro bono counseling: How to make it work

By Bethany Bray March 24, 2021

The 2014 ACA Code of Ethics encourages counselors to “contribute to society by devoting a portion of their professional activity to services for which there is little or no financial return.”

This is an important tenet of the counseling profession, and one that pulls at counselors’ empathy and call to social justice. However, counseling clients for a reduced fee or for free – pro bono – in a private practice setting comes with some caveats.

John Duggan, senior manager of continuing and professional education at the American Counseling Association, stresses that private practitioners who have any kind of third-party contract, such as agreements to accept clients from an employee assistance program, Medicaid or elsewhere, must take positive steps to avoid risk if they charge anything other than the same rate for service for 100% of their caseload. This is due to several reasons:

Charging different rates for services reimbursed by federally funded programs opens the practitioner to risks of fraud accusations or investigations by the U.S. Centers for Medicare & Medicaid Services (CMS). In general, Medicaid and other third-party insurance plans prohibit practitioners from waiving copays.
Insurance companies may be unwilling to honor a fee schedule if a practitioner charges different fees for the same contracted service to different clients.
Offering remuneration to clients is unethical and potentially illegal (see Standard A.10.b. of the 2014 ACA Code of Ethics). While there are exceptions, waiving copays/fees and underbilling are potential HIPAA violations.

Lastly – and perhaps most importantly – Standard C.5. of the ethics code prohibits discrimination in professional counseling. Offering different fees to different clients could potentially make a counselor’s health care business vulnerable to accusations of discrimination or lawsuits, Duggan says.

The only private practice scenario that would be exempt from the above points is if a counselor does not have any existing third-party contracts and treats 100% self-pay clients, without insurance, he notes.

“It is ethically essential to prioritize our work that’s pro bono,” says Duggan, a licensed professional counselor and licensed clinical professional counselor. “However, the bottom line is that professional counselors who manage a health care business should also operate as ethical businesspeople. Always consider ethical, legal and compliance issues before reducing fees, copays/fees or underbilling.”

Duggan points out that there are many ways a counselor can do pro bono work that do not involve counseling clients on their practice caseload. Volunteer or reduced-fee work in the community – anything from public speaking or leading workshops to mental health response during disaster situations – can be a rewarding way for counselors to give back.

There are also organizations and agencies that facilitate the counseling of clients outside of a clinicians’ existing caseload. Duggan points to the Pro Bono Counseling Project (probonocounseling.org) as an example. The Maryland-based nonprofit pairs clients with limited incomes who are uninsured or underinsured with volunteer practitioners for free mental health care.

When it comes to navigating the nuances of pro bono work, Duggan suggests counselors refer to ACA’s numerous resources, most notably the 2014 ACA Code of Ethics (including standards C.1. and I.1.b.) and The Counselor and the Law: A Guide to Legal and Ethical Practice by Anne Marie “Nancy” Wheeler and Burt Bertram, particularly Chapter 3 (available at counseling.org/store). Practitioners may also want to consult an attorney for guidance.

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2014 ACA Code of Ethics, Standard C.6.e.

“Counselors make a reasonable effort to provide services to the public for which there is little or no financial return (e.g., speaking to groups, sharing professional information, offering reduced fees).”

See the full ACA Code of Ethics at counseling.org/ethics
ACA members who have further questions can schedule a practice or ethics consultation with ACA’s counseling specialists by emailing ethics@counseling.org.

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Pro bono: Opportunities

Remain cognizant of the potential for exploitation of clients, attend to their vulnerabilities, and consider their best interests in all professional decisions.
Look for opportunities to serve your local community by providing some pro bono services that capitalize on your unique interests and skills (e.g., speaking, teaching, mentoring, leading support groups, volunteering at a local nonprofit clinic).
Remember: Pro bono services are subject to the same rigorous ethical standards as all other counseling services. Practitioners offering clinical mental health services must also remain compliant with state and federal laws.

Source: John Duggan, senior manager of continuing and professional education at the American Counseling Association

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Read more

Counselors who enter private practice often find themselves confronting the push and pull between their desire to provide empathic, client-focused care and the need to turn a profit. Counseling Today will take an in-depth look at this topic in the magazine’s April cover article, “Finding balance in counseling private practice.”

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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.

Voice of Experience: Managing requests for client information

By Gregory K. Moffatt February 23, 2021

In nearly four decades of practice, I’ve experienced a number of attempts by various individuals to gain access to my client records. Here are a few of them.

Two police officers showed up in my office asking for records regarding a former client. They told me that the person was of interest in a very serious crime and they were trying to close that case. Would I please give them my records for that client? When I told the officers that I would be happy to comply with any order from the court, they pressured me. “Really! You are going to make us get a subpoena?” Yep.
An attorney sent me a very official looking letter that I believe was deliberately drafted to look like a court order. It was full of legal jargon and demands for information regarding a former client. I could have simply thrown it in the trash, but instead I called the attorney’s office. I knew the attorney would be waiting on my call. Sure enough, when I told the receptionist who I was, she immediately patched me through to his office. He answered on the first ring.

“I’m calling regarding your ‘request’ for information from me,” I said. Not waiting for him to make a comment, I continued, “I’m sure you know I cannot even acknowledge who my clients are without a court order or the client’s permission. Do you have either of those?” Of course, he did not. The call was polite and short. I never heard from him again.

A parent called my office seeking “any records whatsoever” I had pertaining to my therapeutic relationship with his son, who was a minor at the time. Ordinarily, I would have been happy to chat with a parent. However, I knew that this father’s custodial rights had been terminated by the court (my client’s mother had provided those documents to me), so the man calling me had no legal right to his son’s records. I declined his request.

Without experience, it might be easy to be intimidated by police, angry parents or clever attorneys. But you cannot be arrested (as I was threatened on one occasion) for following counseling ethics and HIPAA requirements regarding client information. In fact, you will likely be in greater trouble if you concede to these “requests” and thus violate our code of ethics.

To make your life a little less stressful, let me suggest three simple statements/rules that will help you know when to divulge information and when to stay silent.

First, never forget this line: “Who my clients are or are not is confidential information.” The two officers I mentioned above began by saying, “We are here to talk about M— S—, one of your former clients. Do you remember her?”

They were playing me. If I had acknowledged that I remembered her (as, in fact, I did), they would already have been on their way to pressuring me for more information. I simply delivered the line above and then shut my mouth.

Second, remember to ask, “Do you have a court order?” No court order is verbal. Police officers, lawyers and others have tried to tell me they had a court order and wanted me to provide information. I always state that I’m happy to comply with any court order that I receive. Unless a court order is provided to me, that is nearly always the last I will hear about a request for information.

Even if a printed order is provided, it must be signed by a judge. The lawyer who tried to scam me knew he couldn’t forge or fake a judge’s signature without risking losing his license and perhaps going to jail. I always first flip to the last page of the order to see what judge signed it. No judge’s signature, no information.

Finally, ask, “Who has legal right to this information?” Without a court order, that legal right generally lies exclusively with the client, but in the case of minors, those who have legal guardianship can request records as well. That can get complicated, as I indicated in the scenario above. If I hadn’t anticipated the question of legal guardianship, I might have provided client records to a person who had no right to see them.

If you have no experience with court orders, always consult with your professional organization or a trusted and experienced colleague. If you have questions about a court order, you can call the court to confirm or clarify.

One final caveat: I am not an attorney. I know some jurisdictions may have systems in place that differ from what I’ve described, so check with legal counsel in your area before you need it. You will then be prepared.

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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.

Ethics in the time of COVID: Contact tracing

By Donna S. Sheperis, Ann Ordway, Michael Kocet and Mary Hermann September 2, 2020

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.

Contact tracing

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.

Ethical concern

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.

The dilemma

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?

Lakshmiprasada S/Shutterstock.com

The experts

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.

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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.

Conclusion

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.

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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 dsheperis@paloaltou.edu.

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 ann.ordway@phoenix.edu.

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 mkocet@thechicagoschool.edu.

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 mahermann@vcu.edu.

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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.