By: James R. Corbin, MSW, LSW
What are the ethical and legal imperatives of client confidentiality, and what impact do they have on the therapeutic relationship? Perhaps the relationship that exists between the mental health system and the law could be best described as “an uneasy alliance” (Melton, Petrila, Poythress, & Slobogin, 1997, p. 3). Many mental health professionals would consider themselves fortunate to avoid contact with a system whose laws and procedures often seem foreign to the therapeutic aims of their profession. On the other hand, attorneys and other professionals surrounding the practice of law may view the mental health profession as a nebulous and somewhat unreliable science, particularly when it intersects with their system.
However, their shared history leaves little doubt that their present and future relationship is here to stay; their intersection is unavoidable and can be one that is both mutually favorable and beneficial. Since Muller v. Oregon (1908, U.S. Supreme Court) and critical court decisions such as Brown v. Board of Education (1954, U.S. Supreme Court), evidence from the social sciences has been used in the judicial decision-making process (Levine & Wallach, 2002). For the clinician, a working knowledge of basic forensic social work would help in navigating the system of law in a way that is both helpful and contributes to the best interest of the client.
Therapeutic jurisprudence is a term coined by David Wexler and Bruce Winick that describes the problem-solving process between two systems—a study of the impact of the system of law on mental health, as well as the impact of the social sciences on the law (Wexler, 1990; Wexler & Winick, 1991, 1996; Winick, 1997). With the increase in societal problems such as divorce, crime, substance abuse, and family violence, as well as the clear impact of mental illness on crime, scholars and professionals in the practice of law and the social sciences have been inextricably linked when looking at societal and systematic responses to these phenomena (Levine & Wallach, 2002). Those concerned with the practice of therapeutic jurisprudence focus on such problems as the manner in which the court system deals with the issues of domestic violence and substance abuse. The mental health system and our nation’s criminal justice systems (as well as civil court systems) depend on the expertise and knowledge base from each respective discipline, as well as the prudence of those specialists who have combined expertise (i.e., forensic social workers and psychologists), in attempts to address and solve problems. Both fields inform the practice of one another.
The Conundrum of Confidentiality
One of the issues that is often in contention between these systems is the ethical responsibility to maintain a client’s confidentiality. Professionals in each field recognize its importance and have parallel processes in this regard—attorney/client privilege (in the realm of law), and client/clinician confidentiality (in the field of social work and related practice). It is one of the basic tenets of the therapeutic relationship and one that is an essential agent to the helping process for attorneys as well as clinicians. Indeed, it is a clinician’s ethical responsibility to maintain the privacy and confidentiality of clients and to practice within the confines of the law and in an ethical manner (American Psychological Association, 1994; American Psychological Association—Committee on Ethical Guidelines for Forensic Psychologists, 1991; Clinical Social Work Association (CSWA) Code of Ethics, 1997; National Association of Social Workers (NASW) Code of Ethics, 1996).
The NASW(1996) and CSWA (1997) codes of ethics outline the values and principles that govern social work practice and guide our profession in making ethical decisions. They compel licensed social workers to maintain the client’s privacy and confidentiality except under very specific circumstances. There is a particular portion that serves as a guide from which social work professionals may draw upon surrounding certain legal proceedings. It is as follows:
(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (NASW, 1996, Ethical Standards, 1.07)
Our code of ethics directs us to comply with the law (such as in the case of a court order for information on our client) but to clarify from the court order, for example, what specific information is needed and how that information will be guarded from public record.
Summary of Tarasoff
Licensed social workers and other mental health professionals are compelled to reveal confidential information about their clients when they are a harm to themselves or others. As well, all professionals (mental health, educational, and health care) who work with minors are mandated to report incidents of alleged child abuse whether the child client agrees or not (Levine & Wallach, 2002, pp. 274-285). The California Supreme Court decision in Tarasoff v. Regents of the University of California (1974; 1976) set a standard for practitioners to reveal confidential information in their duty to warn others of the potential dangers from a client.
Briefly, the Tarasoff case involved a murder victim, Tatiana Tarasoff, who was killed by an alleged acquaintance, Prosenjit Poddar. Poddar was a client of Dr. Lawrence Moore, who was employed by the University of California, and had stated during a therapy session that he intended to kill Tarasoff because she had rejected him as a lover. He was assessed as a danger and was held briefly and released.
Shortly after his temporary confinement, he did indeed kill Tarasoff during an attack with a pellet gun and knife. The victim’s parents sued the therapist, campus police, and everyone who had contact with the case at the University of California (Board of Regents) for wrongful death. They asserted that if the therapist knew that Poddar was indeed a danger and there was intent related to his threat to his victim, that they had a duty to warn her. In the majority decision, the court found that the “protective privilege ends where the public peril begins” [17 Cal.3d 425, 441 (1976)]. The decision had a significant impact on the legal requirements for a clinician and certainly affected a client’s confidentiality. If, during the course of therapy, a clinician assesses a client as a danger to someone, he or she has a duty and is legally compelled to warn the intended victim (Levine & Wallach, 2002).
Limits of Confidentiality and Privilege: A Legal Analysis
Often, the terms confidentiality and privilege are used interchangeably to describe the same general phenomenon—keeping information about a client private. However, the two terms can be distinguished from one another. The professional necessity of keeping a client’s information private (for both attorneys and social workers) is referred to as maintaining a client’s confidentiality and is “rooted in the ethical codes of each profession as well as in statutory law” (Stein, 2004, p. 11). On the other hand, privilege “refers to the right to withhold confidential information in a court of law . . . [and] is conferred by the legislature of the courts” (p. 105). In a general sense, the conduct of the professional practitioner must be “measured against the traditional negligence standard of the rendition of reasonable care under the circumstances” [17 Cal.3d 425, 439-440 (1976)].
Laws regarding mandated reporting and other limits of confidentiality differ. For instance, lawyers in New York are not mandated reporters (Stein, 2004). In some cases, social workers who are “employed by an attorney [are] covered by attorney-client privilege and may not be required to report abuse or neglect” (p. 11). Practitioners should familiarize themselves with the appropriate statutes in the states where they practice.
The history of confidentiality and how it has been guarded and breeched can be traced through pertinent case law. Familiarity with pertinent case law related to confidentiality can also be helpful in guiding practitioners negotiating work with a client, for example, who has threatened harm. As discussed earlier, the Tarasoff ruling in 1976 formed the foundation of case law that guided practice with regard to a clinician’s duty to warn others of a client’s intent to harm.
Three rulings that followed helped to support the Tarasoff duty to warn. In David v. Lhim (1983), the court ruled in favor of the plaintiff who administered the estate of the deceased, Ruby Davis, who was killed by her son (who had schizophrenia) after his release from the hospital. Counsel for the plaintiff argued successfully that the staff psychiatrist at the hospital did not sufficiently warn the mother, a “foreseeable” victim (Reamer, 2003, p. 30).
In Chrite v. United States (2003), a Veterans Administration (VA) patient (Henry O. Smith) had written a threatening note on the day he was released from the hospital. Although the note was recorded in his case notes, no warning was ever given to the intended victim, his mother-in-law. Smith did follow through on his threat and killed his mother-in-law. The court ruled in favor of the plaintiff (her husband) in finding that the hospital staff had a duty to warn the intended victim about the threat (2003).
In Jablonski v. United States (1983), Phillip Jablonski had been hospitalized and had a history of violence, including threatening to kill and rape his mother-in-law. Following his stay, he killed his mother-in-law. His estranged wife sued the VA Hospital where he had been treated. The court found in favor of the plaintiff, citing that the staff at the hospital “should have concluded, based on the information and prior records available, that Kimball [the victim] was a foreseeable victim” (p. 31).
However, subsequent rulings have helped to clarify (in most cases) what constitutes such things as imminent harm, the intended victim, and what actions constitute a warning. The ruling in the case of Mavroudis v. Superior Court (1980) clarified that threats must pose an “imminent threat of serious danger to a readily identifiable victim” (Reamer, 2003, p. 31). This was further clarified during a subsequent ruling in Thompson v. County of Almeda (1980), when the court ruled that the threat must be specific (Reamer, 2003).
Clearly, the best therapeutic choice for a therapist treating clients who pose an immediate danger to themselves or others is to seek hospitalization. However, the court’s ruling in the case of Currie v. United States (1986) “suggests that therapists may have a duty to hospitalize dangerous clients to protect potential victims” (Reamer, 2003, p. 34). Thus, clinicians should take heed to their ethical and potential legal obligations to protect others from a client posing an imminent danger.
Reamer (2003) offers four guidelines to help clinicians balance the professional obligation of confidentiality with the duties to warn (and protect):
First, the social worker should have evidence that the client poses a threat of violence to a third party.... Second, the social worker should have evidence that the violent act is foreseeable.... Third, the social worker should have evidence that the violent act is imminent.... Finally...a practitioner must be able to identify the probable victim. The disclosure of confidential information against a client’s wishes should not occur unless the social worker has specific information about the client’s apparent intent (pp. 38-39).
It is clear that work with a dangerous client poses many therapeutic and ethical challenges. Clinicians may be concerned about the liability that a breach of confidentiality may pose. Dickson (1998) suggests that “When there is no statutory protection, consultation combined with careful documentation should minimize the chances of successful litigation” (p. 164). In many states, mental health practitioners are protected from litigation when they are following, for instance, mandated reporting guidelines. A careful assessment and consultation with a supervisor are often the first steps in making an appropriate plan of action. Reamer (2003) further outlines ten steps to be taken by clinicians if their clients pose a threat to another party:
- Consult an attorney who is familiar with state law concerning the duty to warn and/or protect third parties.
- Consider asking the client to warn the victim (unless the social worker believes this contact would only increase the risk).
- Seek the client’s consent for the social worker to warn the potential victim.
- Disclose only the minimum amount necessary to protect the potential victim and/or the public.
- Encourage the client to agree to a joint session with the potential victim in order to discuss the issues surrounding the threat (unless this might increase the risk).
- Encourage the client to surrender any weapons he or she may have.
- Increase the frequency of therapeutic sessions and other forms of monitoring.
- Be available or have a backup available, at least by telephone.
- Refer the client to a psychiatrist if medication might be appropriate and helpful or if a psychiatric evaluation appears to be warranted.
- Consider hospitalization, preferably voluntary, if appropriate (p. 41).
But not all clinical situations involving confidentiality are quite so clear. Let’s look at a case vignette to examine some of the clinical issues surrounding client confidentiality and the practitioner’s role in working with a blended family where custodial parties believe a third party to have the potential for violence.
Jill sought play therapy treatment for her son Bobby, age 6, because of his reported difficulty revolving around his parents’ divorce. Jill and William (Bobby’s father) share custody. Bobby was allegedly exposed to a great deal of his parents’ marital strife by his mother’s report. She stated that prior to the divorce, there was constant tension and turmoil in the home. Jill attributed much of this to his father’s alleged untreated mood disturbance and substance use. In a separate meeting with William, information concerning Bobby’s exposure to marital conflict was not confirmed. His father was suspicious of why I was asking about this and stated that his relationship with his former wife did not have “anything to do with Bobby” and his treatment. It was one of my main hopes for his treatment that the contentious nature of the parental separation and divorce would not contaminate Bobby’s ability to use the therapeutic relationship most effectively.
Although my individual work with Bobby was critical in terms of his own development and understanding about his experience, the work with his family was perhaps equally important in the effort to tend to his psychological health. It was in my work with his family that the issue of confidentiality and the possibility of an intersection with the courts became a treatment issue.
Bobby’s paternal grandfather related to me that he was pursuing legal action against William in regard to Bobby’s custody arrangement, pursuing what he deemed his legal “grandparent rights.” His grandfather also related that Bobby had been increasingly withdrawn in their home and had been indirectly asked to “take sides” and placed in a precarious situation of choosing between his father (on one side) and his mother and paternal grandparents (on the other). Following this meeting, I met with William once again. He was quite resistant and seemed mistrustful of my intentions to gain helpful information from him in the interest of his son. Although his willingness to come to our meeting was a good start, I was able to gather only limited information from William, as he was thoroughly guarded and defended against attempts to build a meaningful alliance.
The week following this contact, I met with Jill and the paternal grandparents. As I began to provide them an update on Bobby’s progress and work during his therapeutic play, my meeting with them was quickly pervaded by a much more serious and somewhat adversarial tone. His paternal grandfather pressed for specific information that Bobby may have revealed regarding his feelings and thoughts about his father and his treatment of him or other family members. Specifically, Bobby’s paternal grandparents were concerned that their own son’s behavior was becoming increasingly combative and were concerned about his potential for violence. I informed him that the themes present in Bobby’s play indicated conflictual feelings of loyalty and marked differences between households, although he had not revealed any specific information regarding his father. I further explained that it would not be appropriate for me to reveal any specific information in this regard, as it may affect the therapeutic relationship and trust that had developed, not to mention the issue of confidentiality. I explained that therapy was a special place for Bobby in that it may have been the only place where he didn’t have to choose sides. Lastly and most importantly, I suggested to all parties that a family evaluation be completed by an independent clinician, so that any potential risks (for violence, for instance) could be assessed, and that this would not interfere with my work with Bobby.
The grandfather pressed me further and insisted that I would be compelled to reveal any specific information if asked by a judge. Clearly, the grandparents were interested in pursuing revised custody and/or contact arrangements between Bobby and his father through involvement with the legal system and were hoping I would collude with them in this effort. What are the issues legally relevant to my work with this client?
Legally and Ethically Relevant Issues, Discussion, and Concluding Remarks
I am ethically (and legally) bound not to reveal any information about Bobby and my work with him to anyone but his parents without a court order. However, there are indications that his grandparents are directly attempting to have me collude with their efforts to alter Bobby’s custody and/or visitation arrangements with them. Certainly, the legally relevant issue at hand is Bobby and the current custody arrangement. The grandparents (and Jill) inferred that William might be prone to violence and were concerned about the impact that possible exposure may have had on Bobby. It was not clear to me that he posed an imminent danger, and I referred the family to a forensic practitioner who performs independent family evaluations for the local courts. This evaluation would include a battery of psychological assessments, including measures of any potential dangerousness. Ethically, I had to distinguish and clarify my role with Bobby. I was not in the role of custody evaluator and made my therapeutic role very clear to all parties. In this case, I was a clinical social worker and not a forensic evaluator.
In addition to issues surrounding the parental separation and divorce, particularly as it related to and was experienced by Bobby, it was important to guard his confidence within the therapeutic relationship. Work with children is specialized in that a clinician must balance the confidentiality of the client while maintaining an appropriate alliance with the caregivers and/or legal guardian(s). The contentious nature of the divorce and the interference by the grandparents certainly made this case much more complex than some. I needed to balance and protect Bobby’s needs and our therapeutic alliance and confidence with the sometimes competing interests of his estranged adult caregivers.
American Psychological Association—Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665.
American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-680.
Clinical Social Work Association. (1997). Code of ethics. Arlington, VA: Author.
Dickson, D. T. (1998). Confidentiality and privacy in social work. New York: The Free Press.
Levine, M., & Wallach, L. (2002). Psychological problems, social issues, and law. Boston: Allyn and Bacon.
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, 2nd edition. New York: The Guilford Press.
National Association of Social Workers. (1996). Code of ethics. Washington, DC: NASW Press.
Reamer, F. (2003). Social work malpractice and liability (2nd Ed.). New York: Columbia University Press.
Stein, T. J. (2004). The role of law in social work practice and administration. New York: Columbia University Press.
Tarasoff v. Regents of the University of California, 108 Cal. Rptr. 878 (Ct. App. 1973); reversed and remanded, 13 Cal.3d 177 (1974); modified, 17 Cal.3d 425 (1976).
Wexler, D. B. (1990). Therapeutic jurisprudence: The law as a therapeutic agent. Durham, NC: Carolina Academic Press.
Wexler, D. B., & Winick, B. J. (1991). Essays in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.
Wexler, D. B., & Winick, B. J. (1996). Introduction. In D.B. Wexler and B.J. Winick (Eds.) Law in a therapeutic key (pp. xvii-xx). Durham, NC: Carolina Academic Press.
Winick, B. J. (1997). The jurisprudence of therapeutic jurisprudence. Psychology, Public Policy, and the Law, 3 (1), 184-206.
Brown v. Board of Education, 347 U.S. 483 (1954).
Chrite v. United States (2003).
Currie v. United States (1986).
David v. Lhim (1983).
Jablonski v. United States, 712 F.2d 391 (1983).
Mavroudis v. Superior Court (1980).
Muller v. Oregon (1908, U.S. Supreme Court).
Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 441 (1976).
Thompson v. County of Almeda, 614P .2d 728 (Cal. 1980).
James R. Corbin, MSW, LSW, received his MSW from Temple University and is a doctoral candidate at the Clinical Social Work Institute in Washington, DC. He is a licensed social worker in Pennsylvania with a specialty in children, adolescents, and their families. He has been appointed since Fall 2002 through Spring 2008 as Visiting Instructor/Lecturer of Social Work at McDaniel College (formerly Western Maryland College). He practices privately at the Play Therapy Center in York, PA. He can be reached at firstname.lastname@example.org.
This article appears in the Fall 2007 issue (Vol. 14, No. 4) of THE NEW SOCIAL WORKER magazine. All rights reserved. For permission to reprint or reproduce, contact email@example.com
After 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.
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.
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 firstname.lastname@example.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.
“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 Todaywill 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 email@example.com.
Letters to the editor: firstname.lastname@example.org
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