Ethical and legal aspects of counseling remain one of the most popular topics in professional literature. Counseling is a field of practice that exists and evolves at the intersection of ethics and law. The goal of this paper is to review the foundational legal and ethical aspects of the counseling profession. The paper includes the following elements: history of the discussed aspects, their importance to counselors, the main themes relevant to the topic, key implications for the counselor’s identity, counseling from a Biblical perspective, as well as personal reflections.
Keywords: ethical, legal, counseling, counselor, practice, profession, Biblical, identity.
Ethical and Legal Aspects of Counseling
Counseling is a challenging endeavor. Every person who chooses to be a counselor is bound to exist at the complex intersection of various ethical and legal norms. Apart from the fact that the counseling profession is being governed by the whole set of legal and ethical norms, the boundary between these norms is extremely blurred. To a large extent, everything that is considered unethical in counseling can readily result in serious legal consequences for the counselor. The history of the legal and ethical standards in counseling is quite new: it is not before the middle of the 20th century that the importance of regulation and ethical standardization in the counseling profession was publicly recognized. The major themes related to the ethical and legal standards of practice in counseling include informed consent, confidentiality and duty to warn, the use of technologies and e-mail counseling, and multiculturalism coupled with the nature and consistency of therapeutic relationship. Both legal and ethical aspects of counseling have far-reaching implications for the counseling process. Actually, they predetermine the direction of this process and set the criteria for quality and expected outcomes. However, while legal standards set explicit boundaries in counseling, the ethics of the counseling profession is still confusing and, at times, even mutually exclusive. Therefore, counseling cannot be ethical, unless professional counselors possess relevant decision making, problem solving, and critical thinking skills required to successfully resolve the emerging ethical dilemmas for the benefit of the client.
History of Legal and Ethical Aspects in Counseling
The roots of traditional psychotherapy can be found in a unique combination of magic, religion, and science (Madden, 1998). For thousands of years, many cultures used to have their “professionals” to assist individuals in overcoming their emotional and mental health problems. For the most of its history, psychotherapy and counseling had been regarded as a nonmedical profession, and many methods of treating emotional and mental illness had been quite bizarre (Madden, 1998). However, as the need for professional mental health and emotional assistance continued to increase, society developed a natural interest to monitor and further regulate the counseling profession (Madden, 1998). In light of the unique dynamics of the therapeutic relationship between the counselor and the client, the legal aspects of the counseling profession had to be clarified. The developed society wanted to minimize the risks of harm caused to the client by incompetent and unprofessional counselors (Madden, 1998). Meanwhile, counselors had to learn to comply with the fundamental legal standards of care and be able to prove their compliance. All those considerations gave rise to the standards of care in counseling in the 20th century. The standard of care has become a foundational pillar of the counseling profession, confirming and governing the reciprocal nature of the dynamic relationship between psychotherapy/counseling and the law (Madden, 1998).
The history of ethics in counseling is very similar to that of the legal standards. Since the beginning of the 1970s, ethical standards and the provision of ethical counseling services have become one of the top priorities in psychotherapy. Throughout the dynamic 1980s, members of ethics committees and counseling professionals persistently tried to establish a new, ethical basis for quality counseling care in the developed world. With time, and quite quickly, ethics became one of the major forces driving the evolution of the counseling profession (Nassar-McMillan & Niles, 2010). Increased attention to the ethical aspects of counseling manifests in all elements of counseling education, preparation, training, and practices (Nassar-McMillan & Niles, 2010). The volume of literature devoted to the ethics of counseling constantly expands. Ethics in the counseling profession goes hand in hand with jurisprudence, and this continued emphasis on the legal and ethical aspects of counseling exemplifies, probably, the healthiest approach to the counseling profession in its current and future states (Nassar-McMillan & Niles, 2010).
Importance of Ethics and Jurisprudence in Counseling
The legal and ethical aspects of counseling are extremely important. Mental health services are no longer confined to asylums and mental health institutions, and the risks of legal complaints for psychotherapists and counselors have increased dramatically (Madden, 1998). Counselors and psychotherapists operate in an extremely challenging environment, where each move and word can easily result in a lawsuit. It would be fair to say that the counseling profession once again reminds the developed society of the inescapable presence of law (Madden, 1998). Like manufacturers who are legally obliged to warn their workers about inevitable workplace risks, counselors are bound to follow an array of legal and ethical norms. Law continues to permeate all aspects of the counseling field, profession, and practice. The rhetoric of the legal system and greatly impacts the essence and quality of counseling provided.
These impacts of law and ethics on counseling have become so enormous that many counselors live their lives fearing legal actions and lawsuits. Madden (1998) writes that counseling practitioners are scared by the mere idea that their clients or clients’ families can resort to filing a lawsuit if they are not satisfied with the counseling service. The extent of the legal system’s intrusion into the counseling practice has become unprecedented (Madden, 1998). It increases the overall legitimacy of the counseling profession but, simultaneously, creates new barriers to providing professional care to clients. This increased presence of the legal system also implies the difficulty interpreting various legal and ethical standards (Madden, 1998). Counseling has a limited history of sound ethical and legal standards (Madden, 1998). Therefore, professional counselors are expected to study the existing legal and ethical problems in detail, to ensure they can avoid the most common pitfalls in their relations with clients.
Another reason why ethical and legal aspects of counseling are important is because they have always been part of most, if not all, healthcare professions. For students and practitioners in counselors, knowing, understanding, and complying with the fundamental legal and ethical norms is a must (Hodges, 2010). The existing legal and ethical recommendations for counselors have been designed with the goal of promoting clients’ best interests (Hodges, 2010). Therefore, by following these norms and being aware of these aspects, counselors can ensure the clients’ wellbeing and avoid misunderstandings and conflicts of interest. The counseling profession is extremely dynamic, and the norms of law and ethics in counseling are also subject to changes. Consequently, it is within any counselor’s scope of responsibility to be aware of these changes and implement them accordingly.
Finally, conflicts between legal and ethical norms governing the counseling profession are not rare. At times, law and ethics are at odds, and counselors face the task to manage and resolve these contrasting obligations (Nassar-McMillan & Niles, 2010). Apparently, without detailed knowledge of these norms, counselors cannot identify the obvious conflicts and resolve them without any risks of harm to the client. Both ethics and law can be considered as the tools of empowerment for counselors (Nassar-McMillan & Niles, 2010). They enable counselors to be more proactive in their practice and move beyond mere avoidance of legal and ethical violations in their professional work. Simultaneously, counselors should recognize that, most of the time, they remain extremely vulnerable to various ethical and legal risks, mainly because the quality of assistance provided to the client is not always related to the degree of education, skill, or knowledge possessed by the counselor (Madden, 1998). The nature of the counseling profession remains extremely imprecise, which also increases counselors’ susceptibility to legal and ethical risks. Even the most professional counselor cannot predict with the desirable extent of certainty how the client will react to a particular treatment strategy (Madden, 1998). The risks of legal actions in counseling are almost unavoidable, but for counselors who are aware of the ethical and legal aspects of their profession, these risks are close to zero.
Ethical and Legal Aspects of Counseling: Main Themes
As mentioned earlier, the volume of literature concerning the main legal and ethical aspects of counseling constantly expands. The main themes related to the topic include: confidentiality versus duty to warn; multiculturalism in counseling; the ethics and law of informed consent; the use of technologies in counseling; and therapeutic relationship.
Confidentiality and Duty to Warn
Confidentiality remains one of the fundamental ethical principles of counseling. As an ethical principle, confidentiality also has far-reaching legal implications for counselors. Maintaining confidentiality is commonly considered as vital to effective therapeutic relationships (Kampf, McSherry, Thomas & Abrahams, 2008). Different schools of philosophy and numerous laws justify the importance of keeping patient information confidential (Kampf et al., 2008). Confidentiality in counseling is morally and legally justifiable, as it serves the client’s interests and facilitates high-quality care provision (Kampf et al., 2008). Confidentiality is a serious moral obligation and a professional action, which is intrinsically right (Kampf et al., 2008). However, when it comes to ethics and law in counseling, the theme of confidentiality is often contrasted to the duty to warn. One of the most difficult questions facing professional counselors is when and how they should disclose confidential information if, in their view, this information is vital to prevent the risks of abuse or harm to other people. This is where ethical and legal norms come at odds: while counselors are expected to maintain ethical confidentiality, the law can obligate them to disclose personal information under the threat of legal sanctions. Certainly, many states and countries favor confidentiality over duty to warn (Barbee, Combs, Eckleberry & Villalobos, 2007). Nevertheless, the conflict of confidentiality and duty-to-warn principles remains one of the toughest in the counseling practice.
Multiculturalism has already become one of the most prevalent themes in the analysis of counselors’ ethical and legal dilemmas. Multiculturalism is an ethical theme, as it relates to the ethical principles of equity, fairness, respect, and even social justice (Vera & Speight, 2003). Multiculturalism also has profound legal implications, as it directly and indirectly related to the themes of discrimination based on clients’ individual characteristics, namely, the culture of origin. Increased attention to multiculturalism in counseling reflects the growing public recognition that the society is becoming more diverse (Sue, Arrendondo & McDavis, 1992). It comes as no surprise that, at times, multiculturalism is referred to as the psychology and counseling’s “fourth force” (Sue et al., 1992). The growing popularity of the multiculturalism theme is justified by the need to reduce counselors’ vulnerability to various sorts of legal and ethical risks. Counselors who are aware of the growing population diversity and pursue multiculturalism values have greater chances to act in the client’s interests and avoid the risks of legal actions.
Regardless of the theoretical framework which counselors follow in their practice, informed consent is a universally accepted legal and ethical requirement and the basic ingredient of effective therapeutic relationship/process (Corey, 2012). Informed consent means that counselors must inform their clients about the nature and intent of the proposed therapy, and provide any other information to enable the client to make autonomous decisions related to therapy (Corey, 2012). Like multiculturalism and confidentiality, informed consent is primarily an ethical norm which, nevertheless, can easily transform into a legal action, if violated. One of the emerging themes in professional literature is the way counselors should use informed consent to publish clients’ clinical materials (Bridges, 2010). Counselors who wish to use their clients’ clinical materials in their professional work confront a serious conflict of their obligations as counselors, their clients’ interests and needs, and their professional strivings (Bridges, 2010). Most probably, the future will witness the growing concern over the way counselors try to balance their clients’ needs and their own professional ambitions.
Technologies and Counseling
In the age of the Internet and satellites, counselors should familiarize themselves with the benefits of various communication technologies. E-mail counseling is getting more popular among counseling professionals and their clients. Needless to say, the effects of technologies on counseling and the counseling potentials of various technologies remain a popular subject of discussions in counseling literature. No less important is the way technologies impact the ethical and legal sides of the counseling profession. Today’s technological realities suggest that innovations provide exciting counseling possibilities, but there are always new dangers emerging from the ill-informed and unprofessional utilization of these opportunities (Goss & Anthony, 2009). For instance, how do counselors ensure confidentiality in e-mail counseling? To answer this question, most counselors need additional ethical and legal guidance and, most probably, effective training to meet the requirements of the new age. Such guidelines are vital for establishing an effective bond between the counselor and the client and avoiding the risks of misunderstandings and confusions in the technology-mediated environment (Goss & Anthony, 2009).
Therapeutic relationship has always been one of the most popular themes in relation the legal and ethical aspects of counseling. Most counselors admit the centrality of an effective bond between them and their clients in the counseling process, although many authors used to ignore the importance of therapeutic relationship and its utility (Follette, Naugle & Callaghan, 1996). The concept of therapeutic relationship is inseparable from the ethics of counseling practices, as it builds on the conditions of trust, openness, honesty, equity, and social justice. The importance of dynamic therapeutic relationship in effecting clinical change can hardly be overstated (Follette et al., 1996). However, future counselors will have to reconsider its nature and importance in light of the emerging technology trends.
Legal, Ethical, and Professional Identity
The discussion of the main legal and ethical aspects of counseling is impossible without considering their importance for counselors’ professional identity. The formulation of professional identity is usually understood as a process of ethical acculturation (Anderson & Handelsman, 2011). However, professional counselors cannot deny the fact that legal knowledge and compliance also contribute to the development of their professional identity, whose chief benefits include but are not limited to providing quality psychotherapy to clients and facilitating an easy and self-fulfilling career (Anderson & Handlesman, 2011). Ethical and legal aspects of counseling are directly related to counselors’ professional identities, since both ethical and legal compliance are at the heart of any good counseling practice. Professional identity means ethical identity and legal identity, and no good therapy is possible without following the principles of law and standards of ethics.
It is interesting to note, that counselors’ professional identity has numerous ethical components. Moral sensitivity, moral motivation and follow-through decisions are all essential ingredients of professional identity (Anderson & Handelsman, 2011). Ethics and law are relevant not only when counselors are facing professional dilemmas but every time they are choosing the most appropriate professional behavior or action. All professional behaviors, especially in the counseling profession, have ethical and legal components (Anderson & Handelsman, 2011). As they develop their professional identity, counselors should remember that ethical acculturation is a lifelong process. As a result, having any particular ethical skill or legal knowledge may not suffice to deliver high-quality ethical psychotherapy. Counselors should always use their basic knowledge to advance their skills continuously and for the benefit of their clients.
Ethics and Law in Counseling: Reconsidering Biblical Values
Biblical values and the ethical and legal norms of counseling are directly related. Basically, Biblical values confirm the importance of compliance and establish an atmosphere of fairness, honesty, trust, and humility in counseling practice. Christian psychology and psychotherapy relies on the importance of affirmatives, which enable counselors to move beyond the postmodernist reality and use Christian norms as a guide in the social scientific process (Johnson, 2010). At the same time, Christian psychology and psychotherapy provide a perspective that differs greatly from traditional law and ethics. Biblical values provide the sense of humility that may be lacking in traditional ethics and science, although many contemporary ethical norms can be traced to the beginnings of the Christian world. As a result, any attempt to integrate Biblical values and psychotherapy may result in ethical dilemmas that need to be urgently resolved. This is where the ethical and, furthermore, legal aspects of counseling come into play. Nevertheless, most ethical principles and standards of practice currently provided through numerous codes of ethics for counselors, including competence, responsibility, respect, and integrity, have their reflection in the Bible. All these standards, norms, and values may lead to negative legal consequences, if not followed by counselors. Counselors who seek greater integration of psychotherapy and religion must be prepared to face the risks of dual relationships, blurred boundaries, competence and concern issues (Plante, 2007). Yet, Biblical values do have the potential to strengthen the importance of both ethical and legal aspects in counseling.
Personal Reflection and Conclusion
In the current state of law and counseling ethics, I see the progress the counseling profession has made over years. It is no longer an unregulated field where non-scientific methods are used to heal non-existing emotional diseases. On the contrary, counseling has turned into an object of ethical and legal regulation, aimed at precision and non-ambiguity in counselors’ relations with their clients. I can admit that, for many years, ethics has been much more important for counselors than the rule of law. Counseling is a field that differs greatly from all other professional fields, and professional counselors develop an ethical intuition that helps them govern the dynamic therapeutic relationship. Simultaneously, there is no single professional left where law has not become the dominant decision making force. Counseling has already fell victim to the growing pervasiveness of legal norms, and many counselors are simply scared by the legal omnipotence which their clients tend to exercise. Under the influence of law, counselor-client power misbalances are getting more visible, and I do not think that the word of law is the most effective force of compliance in the counseling profession. It is through ethics, not law, that counselors can work in their clients’ interests. Law should be a guiding light, a helping hand, and not an instrument of coercion in counseling practice.
Another important thing to consider is the relation of Biblical values to the legal and ethical aspects of counseling. I am convinced that, in the world of diversity, using Biblical values as the foundational element of effective counseling practice is incorrect and, possibly, even unethical. As mentioned earlier, multiculturalism has become one of the most urgent topics in counseling literature, and many counselors lack the desired multicultural competence to provide high-quality psychotherapy to diverse clients. I think that we still have to expand our frames of ethical reference.