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Legal Issues in Counseling

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  • 0:01 Credentialing
  • 1:02 Confidentiality
  • 2:29 Duty to Warn
  • 3:33 Reporting Child Abuse
  • 4:11 Privileged Communications
  • 5:07 Client Records
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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 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.

Credentialing

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

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.

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