We have all had courses on legal and ethical issues in counseling. In most cases, our credentialing organizations require that we have six hours of training on ethics every two years. So, with all of that training on ethics, why are there still ethical violations? There are two reasons: most writing and courses on ethics do not teach people to think— how to make sound ethical decisions that are in the best interest of the heart. Most courses teach the do’s and don’ts but do not provide people with the tools to work through complex clinical cases. Second, the alcohol and drug abuse field generally does not provide adequate clinical supervision to counselors. What happens behind closed doors is unseen and unknown until it blows up in our faces.
This article may pose more questions than it does answers, in hopes that it will spur thought and discussion about legal and ethical issues. This will be done through case studies and scenarios that will hopefully challenge you to think through your decisions and how you went about coming to those decisions.
Let’s start with a common scenario.
Ray is a recovering alcoholism counselor. He has a brief (two-day) lapse following the death of his wife. He immediately goes to AA, meets with his sponsor, and sees a grief counselor. He is not drinking now. Your agency’s policy requires two years of continuous sobriety. No one knows of Ray’s lapse. He fears he may lose his job if he discloses the lapse. He comes to you as a coworker and friend seeking your advice. What do you do? What do you say to Ray? If Ray does not want to report his lapse to management, would you?
This scenario raises the distinction between what is legal and what is ethical. The key to this question concerns whether the employment policy of two years of continuous sobriety is legal. I am not a lawyer, and you might seek legal counsel on this issue. My contention is the agency’s policy is illegal as it discriminates between recovering and nonrecovering personnel, setting a higher standard for recovering staff than nonrecovering. Instead, the policy ought to read that all staff, regardless of recovery history, must have two years of nonabusive use of substances. This holds everyone to the same standard.
Now, that’s a legal answer. What, on the other hand, is ethical? What is just to Ray, to your friendship with Ray, to the agency, to the other clients, to the field?
Actually, there are three issues we must face when considering making a decision about how to act: what is legal, what is ethical and what is moral. The legal standard is typically the minimum acceptable level to meet the requirements of the law. If you’ve ever gone to court to testify, your lawyer likely told you to say as little as necessary and answer only the question asked. The ethical standard, on the other hand, is the opposite: what is the most I should do for this individual? Finally, the moral issue is, when I put my head on the pillow tonight, how will I feel about what I am about to do? Can I tell my partner, my employer and my children? We must ask all three questions to come up with a possible action. But don’t get the questions in the wrong order; don’t start off with what’s legal. If you do, you will be operating out of fear. Instead, start with what is in the best interest of the client, the moral question, and then go to the ethical and then legal questions. Ask all three, but in that order.
Meta-, Macro-, and Micro-ethics
When we think of “ethics” we often immediately think of “codes of ethics.” However, underpinning codes of ethics are universal principles societies have determined to be right, just and fair, such as the “golden rule.” These are meta-ethical principles that seem to apply to almost all cultures and societies and address what is right, wrong, good or bad. In addition, we have international and national constitutions that state how particular societies will treat one another. Next come macro-ethical principles, such as those about a patient’s right to autonomy and freedom of choice about what will happen to their body and those about benevolent treatment by caregivers, as we shall see below. Finally, we have micro-ethical principles—codes of ethics that determine how a particular profession should act.
There are certain assumptions that I bring to a discussion of ethics:
- Ethics is a continuous, active process in which all clinicians must engage.
- Standards (codes of ethics) are not cookbooks. They often tell us what to do but not always how to do it.
- It is the responsibility of the clinician, not the client, to set the boundary. And if a boundary is crossed, we should not blame the client or stigmatize them for the boundary crossing.
- Each clinical situation is unique. We must examine all of the relevant variables and factors that might affect our choices.
- Counseling is done by fallible human beings. We make mistakes. Wouldn’t it be wonderful if we could admit our mistakes to one another? Sometimes the answers to what to do under what circumstances are elusive because sitting in front of you in a counseling session is a unique person with individual characteristics, needs and issues.
There are four “Ds” of legal and ethical practice: Do I have a Duty to do something? Am I Derelict in fulfilling that duty? Were there any Damages (harm) done? And can what I did be Directly connected to the damages? Other macro-ethical issues are:
- The therapeutic frame. Is this something that falls within my scope of practice or competence? Would other counselors do what I am considering doing?
- Acts of omission or commission. An act of omission is when I don’t do something I should do. An act of commission is when I do something I probably shouldn’t do.
- Rule of double effect. One action with two results, perhaps one positive, one negative. An example: A pregnant woman is in danger of either her or her baby dying in childbirth, or perhaps both. What would the physician do? In most cases, they would abort the baby to save the life of the mother. Rule of double effect: one action with two results.
- Ethical slippery slope. When I do what I am about to do, what other actions might follow? An ethical slippery cliff, in other words, is equivalent to “there ain’t any coming back once I step off that cliff.” An example of an ethical slippery cliff is having sex with a client.
There are four primary macro-ethical principles: autonomy, nonmaleficence, beneficence, and justice or fairness. Autonomy includes a patient’s right to choose what they want to happen to their body, respecting their privacy, truth telling, informed consent and helping others to make a decision. For example:
A dermatologist saw a teenager who smoked cigarettes but came to talk to the doctor about her acne. The doctor told her that the acne would not clear up until she stopped smoking, when in truth, only prescription medicine was needed. The doctor was only trying to help improve the teenager’s overall health. Was the doctor right? Most would say no, depending on what culture in which you live. The doctor did not tell the truth to the patient. This is called “paternalism,” making a decision that the caregiver deems to be in the best interest of the client, but, in fact, hurts the client in some way.
The second macro-ethical principle is “do no harm”—nonmaleficence. This is a basic principle of caregiving. The third macro-ethical principle is beneficence, which means “do good.” Finally, justice and fairness issues affect what we do as caregivers. What is right, what is just, what is fair in our society? Consider the following scenarios:
Mr. E is a twenty-five-year-old man with symptoms of fever and fatigue. He sees his doctor and asks for an HIV test, which is positive. The doctor gives him the news in a gentle, supportive manner and recommends treatment and counseling. Mr. E says he has only one sexual partner and is adamant that the partner not be told of Mr. E’s HIV status. The doctor tries to convince Mr. E to do so but to no avail. Should the doctor inform the partner? The answer may not be clear, as will be the case in many of the scenarios in this article. The answer may be, “It depends.” It depends on state and local laws, the patient’s right to confidentiality and the well-being of society.
Mary is a heroin addict in withdrawal from an overdose. She comes into the emergency room for help. She’s smoking a cigarette. The ER nurse tells Mary she is not permitted to smoke in the ER as it is a fire hazard with oxygen around. Mary refuses to stop smoking. The nurse tells her she must leave the ER then. Mary leaves, and an hour later she is brought into the hospital in an ambulance, dead on arrival. Did the nurse do anything “wrong?” Legally, likely not. Ethically, the questions are: “Did she do all she could do to help Mary?” “Were there alternative directives she could have offered?” Morally, when she goes home tonight, how will she feel about what she did today? Three questions: what is legal, what is ethical, what do our values suggest we should do?
Another macro-ethical issue America faces today is the moral hazard: if someone else is paying for the service, the lab test, the x-ray, what do I care? We may do it, no matter what the cost may be, as long as someone else pays for it. In sum, macro-ethics provides general principles that underpin micro-ethics. These must be assessed before moving into what one’s code of ethics says. Counselors should consider these principles first. A macro-ethical principle comes from Karl Menninger, the famed psychiatrist, who said, “When in doubt, be human.” What would a normal human being do in this situation?
Consider these cases:
After a hard week you go to the movies with your partner. The theatre is packed. As the lights dim, you lean over and give your partner a passionate kiss. While doing so, you notice in the seat next to your partner a client of yours whom you saw today when the client revealed intense sexual attraction to you.
Or, you’re having difficult financial times and may have to declare bankruptcy if you don’t sell your house. You put your house up for sale. After twelve months there are no buyers. You hold an open house to promote a sale and the only one to come to the open house is an active client of yours who says to your real estate agent, “Love your house, I want to buy it.”
These two cases introduce us to clinical issues specific to a client, an out of-office setting and the question of whether, as counselors, we are on duty 24/7. What do we do when we are not “on duty?” How do we handle dual relationships? These are micro-ethical questions.
We might begin this discussion by looking at problems in counseling. The top four reasons why counselors are sued by clients are: sexual impropriety (20 percent), incorrect treatment (14 percent), breach of confidentiality (7 percent) and incorrect diagnosis (7 percent). The most frequent claims against a counselor that are heard by professional ethics boards are sexual relationships (35 percent), unprofessional behavior (29 percent), fraudulent acts (10 percent) and conviction of a crime (9 percent) (Gutheil and Brodsky, 2008).
Try this quiz to see how you’d answer these questions. (For each question, state under what circumstances this occurred and what were the consequences of the action).
- Have you ever hugged a client? What type of hug was it?
- Have you ever accepted a gift from a client? Given a gift to a client?
- Have you ever seen a client when you were tired or distressed? (Come now, be honest.)
- Have you ever given a client a peck on the cheek? (I have, whenever I see my adolescent substance abuse boys in southern Turkey.)
- Have you ever given an indigent client bus fare home, perhaps out of the company kitty or perhaps out of your wallet?
- Have you ever gone to the funeral of a client’s loved one? Of the client themselves? How did you handle the interactions or questions such as, “Oh, how did you know my son?”
- Have you ever felt sexual attraction to a client? (If you have any blood in you, you likely have.)
These are practical, everyday issues we face in counseling. And the answer to each question may vary based on the clinical circumstances, culture, treatment setting, your code of ethics, your model or your agency’s model of counseling and your personal values.
To prevent conflicts in counseling and avoid being sued or brought up before a state ethics board, here are some guidelines:
- Ask yourself “cui bono,” which means in Latin, “who benefits.” Does this enhance the therapy process and bring the client to wholeness and health or am I doing this because it feels good to me?
- Can I document what I did? Addiction counselors often hug clients, but when was the last time you read in a clinical record, “At this point in the session, I got up and hugged a client?”
- Discuss the counseling issues in supervision.
- Get training in how to make ethical choices. Most courses are “black and white” training: do this, don’t do that. Instead, we need training on ethical decision-making that serves the needs of the client.
- If you are a clinical supervisor, watch for warning signs. You don’t walk up to a new client, introduce yourself and say, “Want to go to bed?” There is a progression of steps that lead to a boundary violation. The counselor sees a client longer and at later hours of the day. The counselor dresses differently for the client. The counselor manipulates transference. (“What you need is a warm, decent, emotional person in your life. Like me.”) The client is seen after hours and out of the office. Watch for these warning signs.
The steps to ethical decision-making in counseling are as follows:
- Identify the ethical issues and conflicting values and duties.
- Identify the multiple stakeholders affected (clients, coworkers, the agency, the community, the profession).
- Identify possible actions, participants and alternatives.
- Examine the reasons for and against each action, including the macro-ethical principles, micro-ethical codes of practice, legal principles, standards of practice and care, your personal values, and agency policies and procedures.
- Consult with supervisors and colleagues about what options are preferred.
- Make a decision, document the actions (if it is not in writing, it didn’t happen), and monitor and evaluate the results of the decision.
Key Ethical Issues
In this section we will examine three key ethical issues: boundary concerns, dual relationships and confidentiality.
It’s a cold, snowy afternoon. You are on your way home, driving your car in a blinding snowstorm. No other cars are on the road, no taxis, no buses. You come to a street corner and observe a client of yours whom you’d seen today, walking home. He lives three miles from there. He has no way to get home other than walking. Do you pick him up and drive him to a safe place? What if your agency policy is to not ever transport clients? What risks are you incurring by driving the client? On the other hand, how would you feel if tomorrow morning you read in your local newspaper that the client froze to death while trying to walk home?
Or, your agency policy reads, “No hugging or client contact other than a handshake.” A client is walking out of your office after a counseling session and trips. She’s falling to the floor. Do you reach out to grab the person from hurting themselves, despite company policy? Your reactions may even be instinctive, reaching out automatically.
How would you deal with these two situations?
Boundary issues are arguably the most common concerns in counseling. There is a distinction between a boundary crossing and a boundary violation. The two above examples may illustrate a boundary crossing: a benign action that may benefit the client’s well-being. A boundary violation is one in which harm is done to the client, to a professional’s credibility and standing, or to an agency’s reputation. A boundary violation is coercive or exploitive. Factors that affect a boundary violation are when the action occurs (after hours, between sessions), place (culture, out of the office) and purpose. The key question to ask oneself when faced with boundary issues is intent. Why am I doing this? Cui bono? Giving my Turkish clients a peck on the cheek is a proper form of greeting in Turkey but not in Texas.
A few axioms apply to boundary issues:
- Good intentions are not enough justification. The impact on the client is essential.
- Never do anything inside your office you wouldn’t feel comfortable doing in the hallway.
Dual relationships are also a common complaint against counselors. A dual relationship is an abusive use of a counselor’s power, one that takes away the client’s autonomy and freedom of choice. It may involve intentional personal gain for the counselor, and harm is always done to the client and the therapeutic relationship.
However, we need to make a distinction between a dual relationship and a dual quality. I live in a small town of 3,000 people. It is not uncommon for me to run into a client in the local supermarket. That’s a dual quality. You may see clients in a faith community, a civic activity, a 12-Step meeting. The key is how you prepared the client (and your partner) for the possibility that such chance meetings may happen, and how you dealt with them then and afterwards.
These are questions a counselor should ask themselves about dual relationships:
- Is this relationship necessary?
- Who benefits from it?
- Will it hurt the client or affect the therapeutic alliance?
- Is the decision-making process documented? Have I told my supervisor about it?
- Have I discussed the risks and issues with the client?
At a college reunion you meet a client whom you treated six years ago. You discover you both went to the same summer camp when growing up. You laugh together reminiscing about the past. You date the person and within a year, you marry the former client. Is that ethical? The answer, as in many of the above scenarios, is “it depends.” It depends on the code of ethics of your profession. For example, if you are a drug and alcohol counselor, a client is a client for life. If you are a psychologist or marriage and family counselor, in most states, after two years of termination of counseling, a client is fair game. Some addiction credentialing boards are considering lower the standard of a “client for life” to two to five years after treatment, reflecting the direction other counseling disciplines have taken. We must be running out of dateable people.
Surely, you are aware of the key legislation affecting confidentiality in the substance abuse field: HIPAA and CFR 42, part 2. Here are other issues affecting confidentiality.
- Crisis management agreement. It is essential that an agency have a policy and procedures outlining how a clinical crisis will be handled. Within what time frame should management be informed of the crisis? Do not say “immediately, or as soon as possible.” You must be specific: “within one hour, 24 hours, etc.”
- Psychological Miranda Warning. It is imperative that clients be told at the onset of counseling about the limits of confidentiality. A clinician cannot wait until a client reports child abuse and then you tell the client such information is reportable to authorities. The client must know of the limits of confidentiality from the beginning of counseling.
Finally, self-disclosure is arguably one of the major issues faced by substance abuse counselors. It is overly simplistic to say a counselor should never self-disclose or tell a client of their recovery. Unintentional self-disclosure happens inevitably: the information available online about a counselor and the agency, whether the counselor wears a wedding ring, if a clinician is six months pregnant (it’s hard to hide that), vocabulary and accent, etc. Instead, a counselor must assess each client in each clinical situation to determine if self-disclosure is appropriate and how it will affect the client. With the assistance of a clinical supervisor, the counselor can assess what is appropriate and when, what they are comfortable with and how self-disclosure can aid in building a therapeutic alliance. More often than not, though, I think counselors self-disclose when they don’t know what else to say.
This section ends with a couple more case studies to ponder and discuss with other clinicians and supervisors.
A substance abuse treatment program honors the annual Recovery Month by participating in a Walk for Recovery to lobby the state legislature to ensure appropriate funding for addiction services. Former clients of the agency volunteer to participate and are transported to the walk, provided with placards and t shirts with the name of the agency on it, and coached for interviews with the media. No one is coerced into participating or asked to self-disclose about their recovery. Is this proper and ethical? What factors affect your decision-making in this situation?
A related issue is that the state has a referendum on the November ballot to reduce the state taxes on cigarettes, some of which is used to fund your agency. Should your agency recommend clients and staff take a stand on this issue? If passed, it would significantly reduce funding for your agency, perhaps resulting in the elimination of substance abuse services.
Ethics is a complex issue involving global principles and codes of ethics, and takes into account culture, setting, client characteristics and an array of other issues. If this article has spurred your thoughts on ethical dilemmas, I have achieved my goal. I have not sought to provide you with answers, but hopefully have challenged you to review how you make ethical decisions, what principles apply and how to incorporate ethical decision-making into your clinical practice. Again, it is imperative to focus on the ethics of the heart and not just the head. Remember the wisdom of Karl Menninger: “When in doubt, be human.” Stop thinking like a darn therapist and ask yourself the question, “What would be a normal human response to this situation?”
We invite readers to submit ethical dilemmas and questions to this magazine to be considered for discussion in the Ask the Ethicist column.