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 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:
- A professional relationship between counselor and client existed
- Counselor acted negligently or failed to follow standard of care
- Client must have suffered harm or injury
- 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
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.
Liability and the Rights of Minors
Counselors of children may have ethical and legal difficulties. Every child has a moral right to privacy in the counseling relationship, but the rights are more limited than for an adult. Counselors have an ethical obligation of privacy to child and adolescent clients but legal obligation to the parents to keep the child safe. Sometimes this conflict between the privacy of the minor (children under 18 years old) and demands of the parents for information about their child as to what is being discussed can be remedied by the counselor and client sharing with the parents together.
Minors need their parents' permission to engage in the counseling process in private practice. Since they are paying the bills, parents often feel that gives them access to what goes on in counseling sessions. The ACA Code of Ethics encourages counselors to work with parents when working with minors. The counselor should also fully inform the client and the parents about confidentiality issues up front and get parents to sign informed consent forms.
School counselors do not have a legal obligation to get parent permission to see a child in counseling. It is assumed in most states that students may be involved in optional services of the school, including counseling. Some parents are concerned about what counseling involves. This can be alleviated by informing parents about the role and limitations of the counselor.
Involving parents when you can with the student's permission allows the parent to understand that the counselor is an advocate for their child. For instance, as a counselor, I would invite parents to meet with me and the child when I thought the parent needed to know something discussed, and I send permission slips home when I begin a group to let parents know the purpose of the group and to give permission for their child to participate. I legally did not have to do that, but it was good practice.
School counselors, who are not protected in many states by privileged communication, are the most likely of counselors to be subpoenaed to court. In cases where counselors are subpoenaed to court, such as in custody cases, they should answer any factual questions asked of them and refrain from answering opinion questions. It is not the role of a school counselor to render opinions involving their students but to remain neutral. Often, the counselor has only heard one parent's side of the story or the child's version of the story and does not know enough for an opinion.
Let's review. Counselors have a lot of legal issues to consider as they enter practice. Being informed of your state laws regarding legal issues is very important. In this lesson, we talked about civil and criminal liability. Counselors are often sued for civil liability issues where the client is seeking financial remunerations. Malpractice suits can be for many reasons, but the most common are engaging in an inappropriate relationship with the client, incompetence, or financial disagreements. Premature termination and abandonment are also grounds for malpractice.
Experienced counselors may choose to be expert witnesses who are hired to testify in court. Lay witnesses are more likely in court because they have been subpoenaed on a client's behalf. They should know what information they can relate and what to keep confidential. They should consult with a lawyer and with the client regarding confidentiality and privileged communication.
Finally, the counselor has to consider the rights of minors. Children should be allowed as much confidentiality as possible. If the counselor gets subpoenaed to court, they should provide factual information but should not give opinions.
After completing this lesson, you should be able to:
- Recognize the legal issues related to being a counselor
- Explain the differences between civil and criminal liability
- Discuss the problems of acting as a witness in court
- Describe the limitations to minors' rights in counseling