The purpose of this paper is to deepen my understanding of the connection between the ethical and legal considerations in regards to mental health counseling. As a new counselor it is my desire to use the codes of ethics as well as current laws to develop a framework with which to grow my skills as a counselor. Because of the need for skill and precision in what we do as counselors, there are many laws that have been put in place to hold us accountable for our actions. I have found that the codes of ethics contain within them the laws which we uphold, as well as expand upon what our role is as an ideal. While not everything within the codes of ethics is also law, we can view ethics as the playing field, and the law as the boundary line within which we operate.
A Developing Counselor’s View on Laws and Ethics
This is my first semester in the LMHC program. Coming in, I did not have a firm grasp on what it was counselors did. The process of knowing what to say, having a plan, and ethically aiding a person is still daunting to me. The therapeutic relationship often involves a person being open and honest in ways that they are with no one else in their life. The importance of morally and ethically navigating these relationships is paramount to the success of a counselor. While initially intimidating, the number of laws and the codes of ethics now form a backbone of my understanding of how to interact with clients in session and out. It seems to me that the metaphor of a playing field could be used in describing the relationship between the ethics and laws. We can see the boundary lines of the playing field as the laws, and the playing field itself as the moral and ethical ways in which we behave as counselors. I would like to further grow my knowledge of how best to navigate this counseling field. A deep understanding of the similarities and differences between the laws and ethics will aid me in doing what is best for the clients I have. We will begin this discussion by looking at laws that apply to us here in New York. From there, we will branch out and have a look at the acts that ensure individuals rights are upheld in a variety of situations. The ACA, and AMHCA, codes of ethics will be used to compare and contrast these documents. We will conclude by summarizing the connection between the ethics and laws that are present.
Starting at the beginning in the American Counseling Association (ACA) code of ethics, A.1.a. states that the primary responsibility that we have as counselors is to respect the dignity, and promote the welfare of the clients under our care (American Counseling Association, 2014). The American Mental Health Counselors Association (AMHCA) similarly states that a counselor’s prime directive is to have respect for a client’s autonomy, dignity, and to promote that person’s welfare (AMHCA, 2015). We can see that here in NYS there are laws in place that uphold this core responsibility. A part of the NYS Mental Hygiene Law describes how when a person is admitted to a psychiatric center, they retain all of their civil rights. They are to be protected from any abuse or mistreatment within that center that might come from other residents, or from the staff. The personal rights that are required within these centers extends to the provision of clothing, the food that is provided, and that the environment is kept sanitary (Office of Mental Health, n.d.). We can begin to see how the laws that govern uphold the ethics that we follow. In this way we are all held to a high standard of providing care to those who may be having difficulty caring for themselves. Perhaps a more direct connection between this aspect of the Mental Hygiene Law and what we provide as counselors would be in regards to confidentiality and privacy. Looking at B.1.b. and B.1.c. within the ACA, a client is given respect for privacy and confidentiality. It states that we are only to ask for private information from a client when it is believed to be beneficial to the therapeutic process. Similarly, counselors are only to disclose information when there is ethical justification for doing so (American Counseling Association, 2014). I.A.2. of the AMHCA is where we find the discussion of confidentiality. It discusses how keeping information about clients safe is a primary duty. The wording here is slightly different, as information is communicated to others only with the client’s consent, or when dictated by state law (AMHCA, 2015). These codes hold true legally when we look at the Mental Hygiene Law. The Office of Mental Health is required to provide a Notice of Privacy Practices, which states that generally no information may be given out without a patient’s written permission (Office of Mental Health, n.d.).
The case of personal rights is very clear cut. Privacy and confidentiality rules held true across both codes of ethics, as well as state law. This right and wrong way of viewing things is not always the case. Within the profession of counseling, there are many grey areas where the correct answer is not always so apparent. One example of this ambiguity would be in disclosure of the communicable disease HIV. If we look at the ACA, B.2.c. describes how in some cases it may be ethically appropriate to disclose that someone has an infectious condition (American Counseling Association, 2014). If a client has serious intentions of having sexual contact with someone, and would infect that person with a potentially fatal disease as a result, there may be good cause for disclosing to the third party. This is where the situation becomes complicated. As counselors, it is our highest priority to work in the best interest of the client. In this case, that would mean attempting to work with the client towards their realization of the negative impact of infecting the third party with a harmful disease. If the client makes their intent to act anyways known, ethically it may be correct to warn the person before damage is done. This is not the case in New York, however. Within our state, there is Public Health Law, Article 27-F, which protects the privacy and confidentiality of anyone who has been tested for, exposed to, been treated for, or has HIV or an AIDS related illness (New York State Confidentiality Law and HIV: Questions and Answers, n.d.). Both the ACA and the AMHCA contain statements that above all else a counselor should comply with state and federal statutes concerning mandated reporting (AMHCA, 2015). This is an interesting case of ethics and the law diverging from each other. While it may seem that the most correct thing to do may be to speak up and warn the person in question, legally that is not the case. After discussion, I believe that the most correct course of action would be to communicate with the client the dangers of what they are thinking. Through effective counseling it may be possible to show them alternatives to not communicating their condition.
With the vastness of topics the counseling field contains, it makes sense that morally grey areas would present themselves. Upon entering this program, my most anxiety-inducing questions all pertained to these grey areas. There seemed to be many topics that could catch a counselor off guard. As the semester has gone on, I have found a sense of confidence as a result of learning about ethical decision making models. An article entitled Privileged Communication Between a Patient and Clinician discusses a morally grey area where we may use such a model. In this case, a patient suffering from schizophrenia was admitted to a behavioral care facility for experiencing auditory hallucinations telling him to kill himself. The psychiatrist that treated him filed a petition for the patients continued residency after learning that he planned to kill himself. The patient attempted to have the petition thrown out, saying that he was not informed that what he said to the doctor may be used in legal proceedings. The judge presiding over the case ruled in favor of the doctor, after determining that the privileged communication was overcome because of the threat of imminent harm (Sarathy & West, 2015). The psychiatrist in this scenario decided to act after learning of the patient’s intent to inflict harm upon himself. How did he decide to speak up and take action in this circumstance? In the HIV situation, the most ethical thing to do was to attempt to work together with the client and aid them in finding a different solution than infecting their partner. In the situation involving the suicidal patient, speaking out and petitioning for more treatment time was seen both ethically and legally as most correct. This decision is made more easily when looked at through the context of an ethical decision making model. Corey, Corey, and Callahan (2015) presented a model that has stayed with me, and has eight steps to consider. Instead of going through each step, I will point out a couple of important points. There are several models for ethical situations, some for specific situations; what they have in common is that they require the counselor to pause and break down a problem into parts. By looking at the situation in a structured way, one can be sure that an informed decision will be reached. I have learned that if something doesn’t feel right in session, it is correct to run through the steps of a model to see what comes up. Identifying the problem or issue provides direction, reviewing ethical codes focuses a counselor on providing the best care possible, seeking supervision provides context from those who may have insight upon the situation (Sheperis, Henning, & Kocet, 2016). Having these tools at my disposal makes me feel more confident moving forward.
Another tool we as counselors use are records and documentation. In regards to ethical decision making, it is important that a counselor keep a record of the process they went through to arrive at the decision they did. This could possibly aid a counselor if they were to be court-ordered, or asked to elaborate upon their decision making process. The ACA, under section B.6.a. requires that a counselor create and maintain the records and documents that are needed for providing professional services. Section B.6.b. discusses how these records must be kept secure, and that only those who are authorized have any access to them (American Counseling Association, 2014). The AMHCA ethics code follows suit under 2.i. stating that counseling records must be maintained under conditions of security, and that they must be destroyed after five years of cessation of treatment (AMHCA, 2015). So important are privacy considerations that a federal law was introduced in 1996 to create a uniform level of security among healthcare records. Prior to its introduction, laws were made by state and differed upon where a person was within the country (Wheeler & Bertram, 2015). HIPAA has since been reformed so that it now covers both paper and electronic documents that pertain to a patient’s healthcare records. On the educational side of document confidentiality, FERPA is an act that retains student privacy. The Family Educational Rights and Privacy Act, also known as the Buckley Amendment, was created in 1974 in order to maintain privacy and accuracy of educational documents and records. While the importance of privacy at that time was no less valid, the invention of the internet has created even more need for security and privacy of this information. Educational records may contain a student’s place of birth, information about their parents and family life, grades, any disabilities they are experiencing, as well as medical records (Toglia, 2017).
While privacy and confidentiality are a cornerstone by which we as counselors practice, there are some instances in which we are required to disclose information about the clients we see. A situation like this is called mandated reporting, and is required by law in some instances (Welcome, n.d.). An example may be a case in which a juvenile in counseling reveals that they have had sex with someone who is older than they are. Age of consent laws vary to a small degree by state. In New York, the age of consent is seventeen. This is the age at which a person is recognized as being legally old enough to consent to sexual activity. If a counselor learns that a child under the age of seventeen is being taken advantage of, it would be ethically correct to discuss the illegality of this with them. The counselor would need to be attentive to how the client feels about the situation, and to communicate to them the ethical obligations that they are bound by. The key here would be to work together with the client, and to discuss with them before making any action. Looking at the ACA code A.2.d., we see that when counseling minors we must seek their assent (approval), and to balance including them in the decision making process with our ethical obligations (Sheperis, Henning, & Kocet, 2016).
I believe that counseling is a service that should be made available to all those who seek it out. This profession is non-discriminatory, culturally sensitive, and inclusive of all peoples. It reminds me of the preamble at the start of the U.S. Constitution. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” (Convention, 1787). Phew! A long winded sentiment, but one that applies to the high ideal we reach for as counselors in a position to help. This can and does include those individuals who are living with disabilities. Because of the possibility that those who have difficulty speaking for themselves will be taken advantage of, there are both ethical rules and laws that are in place. Looking at the ACA code, we can see subject A.2.c. concerning developmental and cultural sensitivity. This item describes the importance of a counselor communicating information in a way that is both developmentally and culturally understandable, to the best of our ability. It is on us as counselors to adjust our practices to accommodate these individuals. Further, A.2.d. discusses how when counseling minors, or adults who are incapacitated, a counselor receives their assent (or approval) and includes them in the decision making process (American Counseling Association, 2014). The AMHCA does not single out those with disabilities in its code, however the code itself is openly worded to include those with disabilities. Under I.B.1., the AMHCA discusses how the counselor and client must work together to create an integrated, individualized plan that makes a reasonable promise of success, and is consistent with the abilities of the client (AMHCA, 2015). It is important that we as counselors be familiar with the ADA, or the Americans with Disabilities Act. Created in 1990, and amended in 2008, the ADA is a civil rights law that prohibits any discrimination against those with disabilities in public areas; this includes jobs, educational institutions, and all “public and private places that are open to the general public” (What is the Americans with Disabilities Act (ADA)?, n.d.). A counseling practice with 15 or more employees may want to seek legal advice in regards to hiring those with disabilities. It is a necessary and altruistic service to provide employment to those who require reasonable accommodation. Providing accommodation extends to the services counselors offer as well. It may be necessary to alter a counseling practice in small ways in order to accommodate someone who is experiencing a disability. An example of this may be a larger font on an informed consent form for someone with limited vision, or a wheelchair access ramp for someone who has lost the use of their legs (Wheeler & Bertram, 2015). Considering the scope of the service that counseling provides, these accommodations seem a natural fit for this profession.
Continuing in the direction of accommodation, the Individuals with Disabilities Education Act (IDEA) is a law that works with children who have disabilities in the public school setting. IDEA controls how both states and agencies administer early intervention, special education, and other services to the youths of America. The act also makes available formula grants (to support special education and early intervention) and discretionary grants (to support research, demonstrations, assistance, development, and parent training and information centers) (About IDEA, n.d.). Working together IDEA, Section 504 is a part of the Rehabilitation act of 1973. This act prohibits any discrimination a student might endure as a result of a disability. It is a civil rights statute that makes sure the needs of these students are met to the same degree as students who do not have disabilities. “No otherwise qualified individual with a disability in the Unites States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (Durheim, 2017). Lastly, on December 10, 2015 president Obama signed the Every Student Succeeds Act into law. This was a newer version of what used to be called the No Child Left Behind Act, from 2002. This revitalization of the school system put many changes into place that benefitted students. Protections were put into place for the countries disadvantaged and high-need students. It put into place an expectation that there will be positive growth in the lowest performing schools. It also requires, for the first time, that all the students in the country be taught to high academic standards that help aid them in success in college (Every Student Succeeds Act (ESSA), n.d.). It is interesting and important to note the connection between these acts and the codes of ethics that we adhere to as counselors. In our profession we are concerned most primarily with promoting our client’s well-being. Our goal is for them to reach higher levels of functioning and life satisfaction. It is heartening to see that the ethics by which we practice have been implemented to a degree into the laws that govern our country (and our youths!). While the major codes of ethics may create some grey area with laws that are in place, there are far more circumstances it would seem where the two complement each other.
While it may have been intimidating to begin this course with little knowledge of ethics, I feel increasingly confident that the knowledge of the different codes and the law will aid me in making the right decisions. I plan on always putting the client’s well-being first, and to openly communicate with them about the direction we are headed in. I can see the importance of keeping organized notes on the sessions I participate in, and of the need for vigilance in keeping all documents classified. The most intimidating aspect of counseling I identified at the start was the ethical dilemmas I couldn’t see a way of handling. With knowledge of several ethical decision making models I feel much more confident that I can level-headedly approach complex problems, and come up with a solution that most benefits the client (while adhering to ethics and state laws, as well). I’m excited to be taking this class my first semester in the program, as it has given me a feeling of confidence to handle unique situations. I’m looking forward to expanding upon my knowledge of ethics, and using them to benefit the clients that I come into session with in practicum. I’ll be sure to stay within the boundary lines of the field!
About IDEA. (n.d.). Retrieved from U.S. Department of Education: https://sites.ed.gov/idea/about-idea/
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Association, A. M. (2015). AMHCA Code of Ethics. Alexandria: American Mental Health Counselor’s Association.
Convention, P. (1787, September 17). U.S. Constitution. Philadelphia , Pennsylvania, United States of America.
Durheim, M. (2017, November 3). A paren’ts guide to Section 504 in public schools. Retrieved from Great! Schools: https://www.greatschools.org/gk/articles/section-504-2/
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Office of Mental Health. (n.d.). Retrieved from Ny.gov: https://www.omh.ny.gov/omhweb/patientrights/inpatient_rts.htm
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Sheperis, D. S., Henning, S. L., & Kocet, M. M. (2016). Ethical Decision Making for the 21st Century Counselor. Thousand Oaks: SAGE Publications.
Toglia, T. V. (2017). How does FERPA affect you? Tech Directions, 21-25.
Welcome. (n.d.). Retrieved from Mandated Reporter Resource Center : http://www.nysmandatedreporter.org/Welcome.aspx
What is the Americans with Disabilities Act (ADA)? (n.d.). Retrieved from ADA National Network: https://adata.org/learn-about-ada
Wheeler, A., & Bertram, B. (2015). The Counselor and the Law. Alexandria: American Counseling Association.