Clinical Mental Health Counseling in

Community and Agency Settings

Chapter 2
Ethical and Legal Aspects of
Counseling

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Learning Objectives
2.1 Define ethics, morality, and law
2.2 Describe ethics in counseling
2.3 Discuss the law and counseling
2.4 Understand common legal and ethical concerns for
clinical mental health counselors
2.5 Describe using technology-assisted counseling
responsibly

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Ethics, Morality, & Law
• Ethics - “philosophical discipline that is concerned with
human conduct and moral decision making” (Van Hoose &
Kottler, 1985, p. 3)
• Morality - involves judgment or evaluation of actions, and
is associated with words like good, bad, right, wrong,
ought, and should
• Law - a set of rules that governs particular activities in
society (Wheeler & Bertram, 2015)

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Moral principles
• Form the foundation for ethical guidelines and clarification for ethical
decision-making:
• Autonomy (freedom of choice and action)
• Nonmaleficence (not harming other people)
• Beneficence (doing things that contribute to clients’ welfare)
• Justice (treating all people fairly)
• Fidelity (loyalty)
• Veracity (truthfulness and integrity)
(Barnet & Johnson, 2015; Kitchener, 1984; Hermann,
2011; Remley & Herlihy, 2010)

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Mandatory versus Aspirational Ethics
• Mandatory ethics - followed when clinical mental health
counselors comply with the required minimal standards of
the profession
• Aspirational ethics - followed when counselors make
decisions based on internalized principles and ideals of the
profession, not just external considerations

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Model of Professional Practice (Remley &
Herlihy, 2016)
• Illustrates a balance between internal beliefs and values that drive
counselors and the external forces that guide and support counseling
practice
– Internal beliefs and values
 Courage of convictions
 Decision-making skills and models
 Moral principles of helping professions
 Intentionality

– External Forces
 Consultation, supervision, continuing professional
development
 Laws, Codes of ethics, System policies

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Ethics and Counseling
• ACA (2014) Code of Ethics
– Seventh version of the counseling profession’s ethical
code
– Has been revised periodically since it was first adopted
in 1961
• Ethics Desk Reference for Counselors (Barnett &
Johnson, 2016)
• Ethical Standards Casebook (Herlihy & Corey, 2015)
• Separate codes of ethics within ACA divisions

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ACA Code of Ethics
• Delineates five core professional values
– Enhancing human development throughout the lifespan
– Honoring diversity and embracing a multicultural
approach in support of the worth, dignity, potential, and
uniqueness of people within their social and cultural
contexts
– Promoting social justice
– Safeguarding the integrity of the counselor-client
relationship
– Practicing in a competent and ethical manner (ACA,
2014, Code of Ethics Preamble)

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Sections of the ACA Code of Ethics
• Section A - The Counseling Relationship
• Section B - Confidentiality and Privacy
• Section C - Professional Responsibility
• Section D - Relationships with Other Professionals
• Section E - Evaluation, Assessment, and Interpretation
• Section F - Supervision, Training, and Teaching
• Section G - Research and Publication
• Section H - Distance Counseling, Technology, and Social Media
• Section I - Resolving Ethical Issues

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Overview of Changes Made to the 2014 A CA
Code of Ethics (1 of 2)
• Clarifies and highlights professional values
• Emphasizes guidelines related to the use of technology in
the counseling profession
• Provides guidelines for the use of social media
• Expands definition of relationship to prohibit counselors
from having personal virtual relationships with clients
• Eliminates the end-of-life exception to the referral rule

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Overview of Changes Made to the 2014 A CA
Code of Ethics (2 of 2)
• Clarifies counselors’ duty to inform
• Expands the concept of pro bono services
• Clarifies counselors’ responsibilities with mandated clients
• Expands the role of confidentiality
• Describes updated requirements for counselor educators
and researchers

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NBCC Code of Ethics
• Agreeing to the NBCC Code of Ethics is a prerequisite to
becoming a Nationally Certified Counselor (NCC)
• Consists of seven sections that similar to the ACA Code
of Ethics
• The seven sections include a total of 95 directives

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Limitations of Ethical Codes (1 of 2)
• Some issues cannot be resolved by a code of ethics
• Some codes are ambiguous, making them open to
interpretation
• Enforcing ethical codes is difficult
• Conflicts may exist within ethical codes and among
different organizations’ codes

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Limitations of Ethical Codes (2 of 2)
• Some legal and ethical issues are not covered in codes
• Conflicts may arise between ethical and legal codes
• Some may be adapted to specific cultures
• They do not address every possible situation, nor do they
provide solutions for all situations
• Ethical codes are historical documents
• Knowledge of codes does not necessarily equate with
ethical practice
(e.g., Corey et al., 2015)

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Making Ethical Decisions
• Four step process of separating personal values from
professional values:
– Marginalization (Lack of awareness related to personal or
professional values)
– Separation (Well developed moral values but lack of
awareness of professional ethics)
– Assimilation (adoption of new professional ethics and
abandonment of former cultural values)
– Integration (adoption of new profession’s values while
retaining important aspects of one’s own personal values)
(Ametano, 2014)

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Legal and Ethical Decision-Making Model
• Define the problem, dilemma, and sub-issues
• Identify relevant variables
• Review/consult the law, ethics codes, and institutional policy
• Be alert to personal influences
• Obtain outside perspective
• Enumerate options and consequences
• Decide and take action
• Document decision making and follow-up actions
(Wheeler & Bertram, 2015)

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Other Guidelines for Acting Ethically
• Personal and professional honesty
• Acting in the best interest of clients
• Acting without malice or personal gain
• Justifying an action

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The Law and Counseling (1 of 2)
Case Law -based on court decisions that interpret a law
according to a specific case
• Examples:
– 1993 Napa County, California court case involving Gary
Ramona
 Ramona sued therapists on the grounds that they
had implanted false memories of sexual abuse in his
daughter’s mind.
 Ramona was awarded $475,000

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The Law and Counseling (2 of 2)
 Legal concept on which case decided: Duty to care,
which is the legal obligation of health providers to
not act negligently
– Jaffee v. Redmond
 Communications between licensed psychotherapists
and their patients are privileged and do not need to
be disclosed in cases held in federal court

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Criminal and Civil Law
• Criminal Law - applies to acts that are considered crimes against
society and are prosecuted by the government
• Civil Law - applies to acts committed that affect the civil rights of
individuals or other bodies
– Tort - term that refers to a wrong that legal action is designed to
set right
– Negligence - often unintentional torts, in which mental health
professionals do not carry out their responsibilities in accordance
with the standards of care outlined by the profession
– Malpractice - most common cause of legal liability, in which
counselors have been negligent in carrying out professional
responsibilities or duties.

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Administrative Law
• Created by government administrative agencies that develop
regulations to help define the laws passed by the legislative body.
• Health Insurance Portability and Accountability Act (H IPAA, 1996)
– Addresses client and patient privacy and security
– HIPAA Privacy Rule
– HIPAA Security Rule
• HITECH (Health Information Technology for Economic and Clinical
Health)
• Counselors can determine whether they are covered entities by
visiting the Center for Medicare and Medicaid Services website.

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Common Ethical and Legal Concerns
• Privacy, confidentiality, and privileged communication
• Informed consent
• Professional boundaries and roles with clients
• Professional competence

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Privacy
• Client’s legal right to determine what information about himself or
herself will be shared with others (Remley & Herlihy, 2016)
• Factors that can jeopardize a client’s privacy:
– Waiting in a general reception area
– Using credit cards for billing
– Disposing of records
– Taping sessions
– Documentary or business activities associated with the counseling
setting (Cottone & Tarvydas, 2016)
• Important that clinical mental health counselors take steps to protect
the dignity and privacy of their clients

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Confidentiality
• Professional’s promise not to disclose information revealed
during the privacy of the counselor-client relationship,
except under specific, mutually understood conditions
• Tarasoff v. Board of Regents of the University of
California (1976)
– Duty to Warn: Counselors need to take reasonable
action to help protect victims from dangerous clients
– Mandatory duty does not exist in all states
– Clinical mental health counselors should be aware of
state laws that govern their practice and consult with
colleagues and supervisors

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Privileged Communication
• “Legal term that refers to the protection of confidentiality
between two parties” (Wheeler & Bertram, 2015, p. 104)
• Right of privilege belongs to clients not counselors
• Communication must have been made in confidence with
the intent that the information be kept confidential
• State law governs whether privilege exists in counselor-
client relationships

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Informed Consent (1 of 2)
• Client’s rights to know what they are getting into when they
engage in counseling
• Allows clients to make informed decisions about their
treatment
• Provides clients with information about how the counseling
process works and makes them active partners in the
counseling relationship
• Usually both verbal and written

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Informed Consent (2 of 2)
• Disclosure: providing clients with information they need to
make informed decisions about entering and remaining in
counseling
• Free consent: clients choose to engage in activity without
undue pressure or coercion
• Capacity: ability to make rational decisions

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Professional Boundaries and Roles with
Clients (1 of 2)
• A key aspect of acting ethically and legally as a counselor
includes defining, maintaining, and respecting professional
boundaries.
• Boundaries help provide structure to the professional
relationship and protect the welfare and vulnerability of
clients (Remley & Herlihy, 2016).
• The 2014 ACA Code of Ethics delineates a number of
prohibited counselor-client interactions:

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Professional Boundaries and Roles with
Clients (2 of 2)
– Sexual and/or romantic relationships with current
clients, their romantic partners, or their family members
(in-person as well as virtual interactions or relationship)
– Entering into counseling relationships with former
romantic partners, friends, family members, students,
fellow workers, and others with whom the have a
preexisting relationship
– Socializing or conducting business with clients

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Professional Competence
• Counselors practice within their boundaries of competence
• Competence refers to the capability of providing the
accepted standard of care required for working in a
particular situation
• Developed and maintained through education, formal
training, and supervised practice in particular areas
• Also involves an ability to work with diverse populations
• Important to refer when client needs go beyond the scope
of a counselor’s professional competence

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End-of-Life Decisions
• According to the ACA 2014 Code of Ethics, counselors
have the option of breaking or not breaking confidentiality
in reference to end-of-life decisions
• Before making decisions, counselors working with clients
making end-of-life decisions should engage in consultation
and/or supervision throughout the decision-making
process

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Use of Technology
• Online counseling, internet therapy, cybercounseling, and
technology-assisted distance counseling are commonly
used terms to describe the process of counseling through
the internet (Haley & Vasquez, 2009)
• Synchronous counseling refers to counseling that occurs
during the moment of connection
• Asynchronous counseling refers to a time lapse between
client-counselor communications

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Using Technology-Assisted Counseling
Responsibly (1 of 2)
• Establish methods to ascertain a client’s identity
• Transfer client information electronically to authorized
third-party recipients only when both the counselor and the
authorized recipient have secure transfer and acceptance
capabilities
• Make sure the clients provide informed consent before
engaging in any form of technology-assisted counseling
• Make sure the adequate security configuration is available
• Provide technology-assisted counseling only in practice
areas that are within your expertise

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Using Technology-Assisted Counseling
Responsibly (2 of 2)
• Do not provide technology-assisted counseling to clients in
states where doing so would violate local licensure laws
• Have a plan should emergency situations arise
• Consult with others who are more experienced in using
technology-assisted counseling
• Refer to written resources to become well-versed in
technology-assisted counseling
• If you choose to become a distance credentialed
counselor, participate in NBCC’s training program

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Counseling and Social Media
• According to Wheeler and Bertram (2015), counselors
interacting with clients through social media without
forethought and sound informed consent run the risk of
causing harm to both themselves and their clients
• Two of many concerns associated with social media and
counseling:
– Breach of confidentiality or invasion of privacy
– Boundary violations

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Copyright

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