Effective counseling requires a skilled, empathic, and trustworthy clinician to guide and support clients through the change process. When people seek help from clinicians, they are often troubled, and they want to believe someone can help them with their problems. As a result, they may be especially vulnerable to being manipulated or exploited.

A clinician is in a position of power and trust, and therefore has a duty to be respectful of this position. Clinicians who act irresponsibly can cause harm to their clients, their employers, and to the reputation of their profession. Client confidence and trust in the clinician and the counseling process are paramount.

Clinicians who violate their clients’ trust are insensitive to clients’ needs and they may be acting unethically and engaging in illegal behavior. The most fundamental ethical imperative is to act in the best interests of the client and avoid actions that could harm clients.

All professional counseling organizations have written codes of conduct that identify a set of behaviors that is expected of clinicians, as well as a set of behaviors that are prohibited of practitioners. Professional codes educate clinicians and the general public about the responsibilities of the profession. Knowing and interpreting the ethical guidelines of your professional organization and state requirements - and applying them to particular situations - demands the utmost ethical and moral sensitivity.

Each code includes a discussion of how the practitioner ought to relate to clients, colleagues, to employers, and to the public, emphasizing the responsibility to promote client welfare as the primary goal. Each code also includes statements describing the client’s right to privacy, accurate assessment of needs, freedom of choice, and fair and competent treatment or referral.

Codes define the responsibilities of practitioners to present their training and experience honestly, to be fair in assigning fees for services, to keep current with changes in their practice, to conduct research responsibly, to do accurate assessments, and to train competent future professionals. Each code explicitly prohibits certain behaviors such as sexual relations with clients and dual relationships with clients (i.e., situations where the clinician has more than one relationship with a client).

Each code also advises practitioners to abide by the laws of their jurisdiction. Finally, each code defines the responsibilities clinicians have for reporting unethical or illegal behavior of their colleagues.

While ethical standards are internal guidelines developed by a profession to govern and guide the activities of its membership, there are also state and federal laws regulating counseling practice as determined by statutes passed by legislatures and case law determined by court rulings. These laws can vary widely from state to state. Therefore, practitioners must educate themselves about the statutes within each state they practice and the court case that have come to define professional practice.

There can also be ethical issues with managed care providers involving clients’ freedom to choose a clinician, confidentiality in terms of sharing information with the managed care organization, and the degree to which managed care organizations control treatment protocols and the duration of treatment. If there are these requirements, they need to be shared with clients.

While the codes can give guidelines for ethical and legal behavior, clinicians are often asked to make ethical decisions in situations where there is not always a definitive answer. Codes are not blueprints for appropriate action. That is, they cannot anticipate all possible situations. However they are signposts that identify the most obvious and frequently occurring ethical and legal problems.

Even responsible practitioners differ over how to apply established ethical principles to specific situations. There is a real difference between merely following the ethical codes and making a commitment to practicing with the highest ideals. Mandatory ethics are concerned with where the clinician acts in compliance with the minimal standards of ethical practice. Aspirational ethics strive for the optimum standards of conduct.

Rather than merely focusing on ways to avoid a malpractice suit, clinicians who are committed to aspirational ethics are primarily concerned with doing what is in the best interests of their clients. (Corey, 2001b).

Ethical codes inform clinicians as to what behaviors are ethical or unethical and ethical principles explain why behaviors have ethical or unethical aspects. The following ethical principles should serve as a fundamental foundation of clinicians’ ethical behavior.

- Prudence: Clinicians should use deliberate reflection and care in the decisions they make during the counseling process.
- Respect for Autonomy: So long as an individual is competent, they have the right to self-determination as long as other people rights are not compromised.
- Integrity: Clinicians should make sound moral judgments during the counseling process
- Respectfulness: Clinicians should show respect for people and their situation.
- Non-malfeasance: Clinicians should not put their clients at risk for harm.
- Benevolence: Clinicians must do all within their control to try to help their clients.
- Justice: Clinicians should treat their clients equally based upon the individual characteristics of each client.
- Fidelity: Clinicians should be loyal and trustworthy to their clients, employers, and to the profession. (Mesa, Schmidt, & Day, 1996; Welfel & Patterson, 2005)

The Right of Informed Consent

One significant aspect of ethical counseling is concerned with educating clients about their rights and responsibilities so they can make informed choices and be active participants in the counseling relationship. By educating clients about their rights and responsibilities, clinicians are empowering them and building a trusting relationship with them.

Clients often do not realize that they have rights and they do not think about their own responsibilities in dealing with their problems. Informed consent includes:
the general goals of counseling; the responsibilities of the clinician toward the client; the responsibilities of the client; limitations of, and exceptions to, confidentiality; legal and ethical parameters that could influence the counseling relationship; the clinician’s qualifications and experience; the fees involved; the services the client can expect; and the approximately length of the counseling process.

The challenge of fulfilling the spirit of informed consent is to strike a balance between giving clients too much information versus giving them too little. The best practice is to have the basic information about the counseling process and informed consent in written form in addition to discussions about it with each client.
 
Such a written form, usually called a Statement of Understanding, or Statement of Services/Privacy Practices, will be presented to the client in the course of the first session. It will be signed by both the clinician and the client(s), with one copy offered to the client and one copy kept in the client files. The clinician can then refer back to this document when addressing issues of informed consent in the course of treatment.

This form will typically provide the client with a clear and concise overview of the informed consent issues noted previously, allowing the clinician to enter into the treatment relationship with the nature of the relationship and its rights and responsibilities understood by the client.

In addition to the standard practice issues that have been traditionally addressed in a Statement of Understanding, there are new and emerging issues related to privacy and informed consent that must also be considered when composing a statement of informed consent. Until the past couple of decades, most communication between clients and clinicians was conducted over what are considered secure modes of communication.

This is to say that the technology – wire to wire phone service and fax machines - through which communications occurred would generally allow those communications to occur without a significant risk of being intercepted by a third party.

However, the past couple of decades have seen a tremendous explosion in the development of electronic forms of communication that allow for many more options for the client-clinician interaction. Communication through email, social media, e-faxes, chat rooms, and texting or speaking via smart phones has supplanted phone calls as the more likely way that clients will choose to communicate and interact.

However useful these new means of communication are, they are not as reliably secure in terms of protecting the client’s right to privacy when interacting with their clinician. This issue is enough of a concern for the whole of the medical profession that in 2010 Congress implemented an update to the Health Insurance Portability and Accountability Act (HIPAA) addressing the subject of e-communications and the responsibilities of any medical provider in terms of protecting privacy in this new era of communications.

This law was name the Hi-Tech Act of 2010, and its implications must be known and understood by every clinician. The practical effect of this law is that questions related to the use of smart phones, email, social media, chatting and texting within the treatment relationship must be addressed in the context of the informed consent agreement. Clients must be notified that communications of any sort via smart phones cannot be considered secure and consideration must be given to what that means in terms of assuring and protecting the client’s right to privacy.

Given that today’s smart phones have a multitude of different capabilities, the informed consent process is going to need to be more thorough in helping clients to think through and understand the various risks to privacy that can occur in the interactions between a clinician and a client.

Smart phones can transmit photos, texts, and emails, in addition to phone calls. They also store records of communications – often until the client actively deletes them. This makes smart phone information vulnerable should other persons gain access to the smart phone screens, or to the smart phone software using a computer virus that has been designed to target the software systems currently in use.

Emails, chat rooms and social media sites that allow for easy communications between clients and clinicians must also be examined in terms of whether they are secure enough to protect the privacy rights of the client, and clients must be informed about when these modes of communication will not be considered secure.

The Hi-Tech Act of 2010 is such an important statute for health care providers to research and understand, we have included a link that will take you to a printable copy of what is included in this statute. That link is shown below:

http://www.hhs.gov/ocr/privacy/hipaa/administrative/enforcementrule/enfifr.pdf

Like most complex laws and statutes, the Hi-Tech Act of 2010 is not an easily digestible article for reading. Fortunately, all other health professional have been faced with similar difficulties in terms of maintaining adequate privacy in the era of e-communication.

For the benefit of our trainees, we have located a very helpful and easy to read set of guidelines put forth by the Florida Medical Association to address these questions. These guidelines will be presented on the pages that follow, with additional discussion in subsequent pages.
The link to see this document in its original form may be found at:

http://www.flmedical.org/HITECH_Act_Decrypted.aspx

There is another much less technology driven problem with smart phones and other forms of e-communication. They can be used anytime, anywhere, so that supposedly private communications can be overheard or overseen by people for whom the communications are not intended.

Clinicians who are engaged in conversations with clients via cell phone must not only be concerned as to whether people may be listening in on conversations on the clinician’s end, but also from the client’s end. This suggests the need for some careful consideration about what might be discussed via voice, text or email modes of communication.

The forethought of the clinician in addressing these hi-tech and lo-tech concerns during the informed consent process is very important from an ethical and therapeutic perspective. While it may technically not be the clinician’s responsibility to educate each and every client about all of the aspects of responsible and secure smart phone use, the technology intersects with the clinical and privacy issues in a very powerful way. It is protective of the therapeutic relationship to help the client anticipate and respond to privacy risks and dangers in a proactive way.

This can be done early in the therapeutic relationship and as an integral part of the process of formalizing the informed consent agreement. However, because there are so many different elements involved in determining how communication might proceed, it may be helpful to create some separation between this aspect of the informed consent and all the other parts of the informed consent agreement.

A conscientious clinician might consider the recommendations noted earlier: to provide the client with a menu of options concerning how e-communication might proceed under a variety of possible circumstances for a variety of different purposes. This could be presented to the client as an addendum to the formal informed consent agreement.

One potential model of this kind of addendum, as well as a much more thorough conversation on the informed consent concerns in this area of practice may be examined in yourceus.com’s course: Ethical Considerations of Practice in the Age of Social Media and Electronic Communication.

Confidentiality and Release of Information

Another significant aspect of ethical counseling is confidentiality. Both professional codes and state laws address confidentiality in counseling. Clinicians have a responsibility to discuss the nature and purpose of confidentiality with their clients early in the counseling process. It is the clinician’s primarily responsibility to protect client disclosures as a vital part of the therapeutic process.

For example, the clients should be told that the clinician will have no professional contact with the family, friends, or associates of the client without first securing the client’s permission. When assuring clients that what they reveal in sessions will be kept confidential, clinicians should also tell clients of the limitations of confidentiality.

There are times when confidentiality information must clearly be divulged, but there are many instances when breaking or keeping confidentiality becomes a cloudy issue. In determining when to breach confidentiality, clinicians must consider the professional codes of ethics, applicable state regulations, the requirements of the place where they work, and the clients they serve.

In general, confidentiality must be broken: 1) when it becomes clear that clients might do serious harm to themselves or others; 2) when a client under the age of 16 is the victim of incest, rape, child abuse, or some other crime; 3) when there is elder abuse or neglect (in some states); 4) when the client needs hospitalization; 5) when information is made an issue in a court action; 6) when the clinician is attempting to obtain payment for services and the payment has not been made; and 7) when clients request that their records be released.

 Because there are both state and federal laws that address issues related to privacy and the release of Protected Health Information, and because there may at times be various aspects of this where state and federal laws are not in full and complete agreement , it is extremely important that each clinician spend some time understanding the laws and statutes at the federal level and within each state the clinician is licensed to practice.

This issue has been made yet more complex with the emergence of modes of providing treatment that may cross state lines. The past decade has seen a significant expansion of Telemental Health (TMH) services, whereby counseling is being provided through the use of teleconferencing technology, allowing for real time interaction between clients and clinicians over great distances – between states, even between different countries and continents.

Because you may have a clinician operating in a state and/or country with laws and statutes different from the state and/or country in which the client resides, it poses complex questions about which set or sets of laws and statutes will be in effect when it comes to decisions about whether circumstances exist that allow for the breaking of confidentiality in a legal and ethical way.

Any clinician choosing to provide TMH services across state or country lines must not only have clarity about these legal and ethical issues prior to engaging in that form of treatment, he/she must also provide clear guidelines to each client within the body of the informed consent agreement.

Moreover, there may also be some categories of clients for whom there are special protections in terms of privacy rights. In some states, there are specific regulations regarding clients who are HIV positive. Clients should also be told that the clinician may share information obtained in the counseling relationship with other professionals on a consultation or supervision basis. The best practice is to have these principles in written form and discuss them with clients early in the counseling process.

Steps to Follow in Making Ethical Decisions

There are a number of steps clinicians can follow to guide you in making ethical decisions. (Corey, 2001b)

- Identify the problem or dilemma
- Identify the potential issues including the rights, responsibilities, and welfare of all parties involved in this matter
- Look at the relevant ethics codes for general guidance on the matter.
- Know the applicable laws and regulations and if and how they apply in this situation
- Seek professional consultation
- Examine possible courses of action
- Examine the implications of each course of action for all parties involved in this matter
- Decide on the best possible course of action, take the appropriate action, and follow-up to determine if any further action is necessary

To help determine your level of ethical knowledge and skills, the following self-inventory is attached.  Please review your current stage in each of the ethical areas noted below.

Foundation of Ethical Skills Self-inventory

Pre-awareness: Level 0 – Not yet aware of what the skill involves and/or not yet aware of own areas of strength and weakness, not knowledgeable about what is involved in using skills on a consistent basis nor about how to improve skill sets, not yet able to use skills with consistency and control
Awareness: Level 1 – Aware of what the skill involves and aware of own areas of strength and weakness in defined areas, but not knowledgeable about what is involved in using skills on a consistent basis nor about how to improve skill sets, and not yet able to use skills with consistency and control
Knowledge: Level 2 – Aware of what the skill involves, aware of own areas of strength and weakness in defined areas, knowledgeable about what is involved in using skills on a consistent basis and about how to improve skill sets, but not yet able to use skills with consistency and control
Skill / Competency: Level 3 - Aware of what the skill involves, aware of own areas of strength and weakness in defined areas, knowledgeable about what is involved in using skills on a consistent basis and about how to improve skill sets, able to use skills with consistency and control
Mastery / Mentor Readiness: Level 4 - Aware of what the skill involves, aware of own areas of strength and weakness in defined areas, knowledgeable about what is involved in using skills on a consistent basis and about how to improve skill sets, able to use skills with consistency and control, sufficient understanding of both subject area and how to impart subject area that the ability exists to educate and mentor others successfully in the development of skills

Ethical areas:

____Code of ethics for your profession and how to apply it in clinical practice, including knowledge of roles and boundaries with clients, supervisees, peers, and the public; how to manage competing obligations to multiple codes of ethics, legal versus ethical concerns, obligations to employers, diverse populations within the framework of the dominant culture; ethical obligations in administrative roles and in research and writing

____Core ethics knowledge base, including stages of ethical decision making, competing principles and interests in ethical dilemmas, who the client is and when the client is a client, differences between moral, legal and ethical considerations, special considerations in working with diverse populations

____The major ethical decision making models, including models for working with diverse populations

____Laws and statutes relevant to clinical practice in GA, including duty to warn and duty to protect, privacy and confidentiality, rights of minors, age of majority, populations with special protections

____Common ethical violations and how to prevent them, including boundary and dual role violations, scope of practice, competence

____Best practices in ethical record keeping, including knowledge of HIPAA compliant releases of information, assessment, treatment planning, progress notes, statements of understanding/privacy notification, discharge summaries

The Ethical Decision Process Worksheet

Ethical decision making also takes place with a clear understanding of a process, and with the tools that support that process. This will involve a deep knowledge of the codes of ethics for your profession, as well as the most frequently used models of ethical decision making that may be applied. 

yourceus.com has developed form to provide structure and focus to the essential elements of ethical decision making. This form is called the Ethical Decision Process Worksheet, and it may serve as both a tool for organizing a robust ethical decision making process and a tool for recording the process in a manner that may be used within the client record to demonstrate the steps taken to ensure that the right ethical approach has been undertaken. Built into this form are the steps and stages of the ethical decision making process, with each of the stages noted in sequence. 

Below is copy of this form, with each of the elements noted:

                  Ethical Decision Process Worksheet

Client Name:                                                    Date/Time:

Nature of ethical dilemma:

Knowledge Stage:

What knowledge must be known to address this ethical dilemma? (laws and statutes, regulations, code of ethics sections, moral considerations, etc.)


Identification Stage:

What ethical principles and considerations are in conflict?
What model(s) of ethical decision making will be used to address this ethical dilemma?

What other parties will be involved in examining and resolving this ethical dilemma?

What are the best potential solutions to resolve this ethical dilemma?

Evaluation Stage:

What are the strengths and weakness of each potential solution (Apply the Consequentialist test, Fairness test, Enduring Values test, Light of Day test)?

Selection Stage:

What solution has been selected to address the ethical dilemma?

Comments:

Assessment Stage:

What occurred as the result of the implementation of this selection?

Adaptation Stage:

What changes to the ethical decision were implemented based upon assessment of the outcomes of the initial ethical decison?


Comments:

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