In this lesson, we will be looking at the legal issues in counseling. We will be discussing the importance of credentialing, what the client’s rights are regarding their records, privileged communication, duty to report child abuse, and duty to warn.
As a counselor, it is vitally important to be aware of legal issues pertaining to counseling practice. Lack of knowledge could result in lawsuits and legal actions. In this lesson we will be discussing counselor credentialing, client’s rights, privileged communication, and confidentiality.
First of all, licensure is issued by the state to protect the public from unqualified and untrained practitioners. Passage of a state licensure law restricts or prohibits the practice of counseling by individuals not meeting state-determined qualification standards. To practice as a private practice counselor a license is required. All states require the counselors practicing within the state be licensed, except for school counselors and counselors working in local, state, and federal agencies, and nonprofit organizations. Other counselors are certified, such as school counselors and substance abuse counselors that are certified by the state. National counselor certification is voluntary, and is not required to practice, but does add to a counselor’s credibility.
Confidentiality is the client’s ethical duty to protect private client communication. Confidentiality is a complicated concept because of its exceptions and because it effects both legal and ethical situations. In most situations, the counselor is expected to maintain confidentiality. Counselors should always try to maintain confidentiality because it will affect the relationship the client has with the counselor. The counselor should let the client know prior to beginning therapy when confidentiality has to be broken and that this will not happen unless absolutely necessary. The counselor should always get this consent from the client in writing.
The counselor should breach confidentiality in cases where the client is a threat of danger to themselves or others, property, or suspected child abuse. In cases where the counselor is not covered by privileged communication, as in school counseling, the counselor may have to testify in court and produce records. Counselors need approval from clients in cases where interns are being supervised or where a counselor is consulting with another counselor. An intern should not use a client name and should protect the client anonymity in any way they can. The client can share confidential information at any time. Breaching confidentiality in the absence of an exception could result in ethical and legal sanctions, including loss of license, certifications, and a possible malpractice suit.
Duty to Warn
A licensed counselor has many legal issues to consider. Breaching confidentiality becomes necessary when the counselor has a duty to warn or an ethical duty to protect the client and others from harm. The counselor must take measures to protect the client or anyone they may put in danger. This breach of confidentiality is allowed, in order to inform family members, persons threatened, or the authorities when a person puts themselves or others in danger. It also may be necessary to have the person hospitalized or involuntarily committed when they may harm themselves. It is important that the counselor evaluate the situation accurately. Counselors are responsible for notifying potential victims of violence to others or their property. Over reacting may do damage to the client, and at the least cause damage to the relationship between counselor and client. The counselor could face a malpractice suit for breaching confidentiality if it was not necessary for people’s safety. Failure to report when the counselor should may also result in lawsuits and legal consequences.
Reporting Child Abuse
In addition to duty to warn, counselors have a mandated responsibility to report cases of suspected abuse or neglect to a government agency. Confidentiality is overridden by the need to protect the child. Although all states have statutes regarding the duty to report, the statutes may differ, so it is the responsibility of the counselor to find out what their state requires. Mandatory abuse reporting laws have protective clauses that protect counselors who report suspected abuse in good faith, or who believes it occurred. The laws also vary by state regarding the duty to report past abuses that are no longer happening.
Privileged communication is a legal concept that protects clients from having confidential information disclosed in a court of law without their permission. We typically think of this privilege with lawyers and psychologists, but it also applies to other professions. Even though all states have laws regarding counselor-client privilege, what is covered varies by state. That information covered by privileged communication cannot be revealed by the counselor without the client’s permission. Licensed counselors can refuse to answer questions or produce client records in court. If the client waives this right, the counselor does not have this privilege, although the counselor can only reveal those things that are necessary and sufficient and only to people designated by the client. Privileged communication does not apply to group counseling, marriage counseling, or child or adolescent counseling. The counselor should inform the client from the initial intake about confidentiality and privileged communication.
Among those items that may be protected through privileged communication are client records. All counselors should maintain records on their clients. Counselor records, or clinical case notes, may be paper or video recordings. Clinical case notes allow the counselor to refer back to past sessions to review the treatment process and why the counselor is proceeding in a certain way. This can be especially helpful with clients who leave for a while and then return. Clinical case notes are for the benefit of the counselor, and may include reasons for decisions regarding the client, and documentation of actions taken. Who can have access to the records? Legally, since the records are about the client, they belong to the client, and the client has access to them. If the client changes to another counselor, that therapist would also have access to the records. The client may have copies of the records and use them in litigation. Others can subpoena the case notes when in litigation, and legal representatives of deceased clients may have access.
Administrative records, including appointment books, correspondence, informed consent forms, and other forms, are not considered confidential, but should be protected as if they were. The counselor who uses audio or video recordings should inform the client that they will be recorded, why they would be recorded, and who will have access to the recordings. For instance, counseling interns may need recorded sessions for review with their counseling supervisor. Once recordings have been used they should be destroyed.
In order to protect the public from inadequate counselors, all the states require that private practice counselors should be licensed. Counselors in any practice have a duty to warn. When a client is a danger to themselves, others, or property, and tells the counselor, the counselor has a legal responsibility to report the situation to the people involved or the authorities. In addition, counselors are considered mandated reporters, which means they have to report to the proper authorities if they suspect child abuse or neglect.
Privileged communication, for the licensed counselor, is a protection of a client’s information or counselor case notes from disclosure in court without client permission. Each state varies in what is considered privileged.
At the end of the video, you should be able to:
- Recall the licensure needed to be a counselor
- Consider some of the legal issues involved in counseling
- Define confidentiality and the duty to warn
- Discuss a counselor’s obligation to report child abuse
- Explain what privileged communication refers to
- Describe how client records should be handled