Civil and Criminal Liability and the Rights of Minors in Counseling

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  • 0:01 Civil and Criminal Liability
  • 1:24 Malpractice
  • 3:32 Expert and Lay…
  • 5:08 Liability and the…
  • 7:25 Lesson Summary
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Lesson Transcript
Instructor: Michele Chism

Michele is presently a part time adjunct instructor at Faulkner University in the Counselor Education Department where she teaches Measurement and Assessment and Diagnosis and Treatment. I formerly taught at the University of West Alabama where I taught School Counseling and College Student Development Counseling. I was also the Student Success Coordinator for the College of Education.

In this lesson, we will learn about legal issues counselors need to consider when going into practice, such as general information on civil and criminal liability, malpractice, expert and lay witnesses, premature termination, and the rights of minors.

Civil and Criminal Liability

In this lesson, we will learn about the legal aspects of counseling. Being well informed about the legal issues is very important for the counselor because being uninformed could result in serious consequences for the individual and the profession. We will be discussing civil and criminal liability, malpractice, premature termination, the rights of minors, and the counselor's role in court.

There are two types of liability for the counselor to be concerned about. Civil liability is an instance where the counselor commits a wrong against an individual that may be unprofessional but not illegal. Civil liability gives a client the ability to sue for damages or personal injury. The client must have suffered harm or injury due to the negligence or incompetence of the counselor. Civil liability is the most common suit against a counselor and is common in cases of malpractice. Civil liability usually results in financial awards to the client if the suit has merit.

Criminal liability, on the other hand, is illegal behavior that causes damage to someone or something. The penalties for these offenses could result in fines and/or imprisonment and loss of licensure. Often, criminal liability is filed when it involves situations such as sexual relationships with underage or unwilling clients, practicing without a license, or anything else that would be considered illegal.

Malpractice

Malpractice is a type of civil lawsuit that can be filed against a professional for practicing in a manner that leads to injury to a client. Malpractice suits often occur because the counselor was negligent or did not follow the proper procedures. Practitioners are expected to abide by legal standards and adhere to ethical codes of their profession in providing due care for their clients. The best defense against becoming involved in a malpractice suit is to practice quality client care and adhere to the legal statutes and ethical codes of the profession. Counselors who are sued for malpractice must defend themselves before a jury or judge.

To succeed in a malpractice suit, four elements must exist:

  1. A professional relationship between counselor and client existed
  2. Counselor acted negligently or failed to follow standard of care
  3. Client must have suffered harm or injury
  4. There must be a legally demonstrated causal relationship between practitioner's negligence and the damage or injury claimed by the client

The most frequent reasons for malpractice suits are:

  • Sexual boundary violations
  • Nonsexual multiple relationships
  • Insurance and fee problems
  • Child custody
  • Breach of confidentiality
  • Practicing beyond level of competence
  • Inadequate diagnosis
  • Negligent record keeping
  • Impairment

Another area of possible malpractice suit is premature termination, when the counseling process ends early without previous preparation or plan for follow up on the part of the counselor. Clients need to be involved in making decisions about when to end treatment. When both client and therapist agree it is time to end, there is a low risk of malpractice suit.

Abandonment is another issue. This is when the counselor becomes unavailable to the client without warning; for instance, not following up on hospitalized clients, being unreachable in case of emergencies, or scheduling vacations without provisions for a substitute therapist while the client is still seeing the counselor.

Expert and Lay Witnesses in Court

Another area where a counselor needs to be mindful of possible legal consequences is when serving as an expert witness. Expert witnesses must be considered legal experts and demonstrate the mastery of research in all areas in which they claim to be an expert. Often, expert witnesses have little or no connection to the client and should remain neutral.

The expert witness's job is to provide information and help the court resolve issues; it is not to advocate for someone. Since there are no specific guidelines of what an expert is, the witness's expertise may be challenged by others. The expert witnesses should come to court prepared to prove their ability and with an opinion in the case at hand.

Lay witnesses, on the other hand, are in direct contact with the client and have served as the counselor prior to involvement of the legal system. Their role is to relay information in the case, but only information which they are required to release. Giving opinions are not recommended because you may be giving information you are not qualified to give, which could negatively affect the relationship with the client. Clients might file a malpractice suit if the counselor provides confidential information beyond what is required by law.

Counselors should consult with a lawyer to determine if they have privileged communication and how much information they may have to disclose. The counselor should have already informed the client up front concerning the possibility of being subpoenaed to court. Counselors are most likely to be a lay witness when they are a school counselor, therapist to a child or adolescent, and in cases not covered by privileged communication.

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