In this section you will learn about:
- sources of information that set out legal and ethical requirements
- sources of information that guide conduct and practice in the counselling context.
Supplementary materials relevant to this section:
- Reading A: ACA Code of Ethics and Practice
- Reading B: Standards for Registered Counsellors
- Reading C: Universal Declaration of Human Rights
There are a range of legal and ethical frameworks that guide counselling practice. These frameworks help protect clients as well as counsellors and counselling organisations, setting out practices that promote safe and effective service. While you have learned about a number of legal and ethical requirements throughout the previous modules of your diploma, this module will explore these requirements in detail. We will begin by providing a broad overview of the various sources of legal and ethical requirements that guide counselling practice, while the remainder of this module will explore specific requirements and how counsellors maintain legal and ethical practice.
Reflect
Before reading on, take a few minutes to reflect upon everything you have learned so far about the legal and ethical responsibilities of counselling practice.
Can you identify why it is so important for counsellors to be fully aware of the legal and ethical requirements of the counselling role?
Counsellors are required to comply with all relevant laws, practice standards, ethical guidelines, and organisational policies and procedures that apply to their role. The range of these requirements can seem quite overwhelming for many beginner counsellors. Indeed, there are a large number of applicable laws and standards. While it is important for counsellors to have an understanding of all of these, it is useful to remember that they are also all interrelated. For example, industry practice standards and ethical guidelines are, in part, developed to comply with relevant legislation; organisational policies and procedures are developed in accordance with legal and industry requirements.
Unfortunately, the full range of information about the legal and ethical requirements involved in the counselling role is not found in one convenient place. Instead, specific pieces of information can be found in various places depending on whether the information is legal or ethical in nature, and general or workplace-specific. The following diagram sets out some of the most important sources of information for the counsellor role. These are divided into categories or frameworks depending on the type of information.
| Ethical framework | Legal framework |
|---|---|
| This sets out the ethical requirements involved in counselling practice | This sets out the legal requirements involved in counselling practice |
|
|
We will be exploring each framework in more detail shortly – the diagram merely provides a very broad overview to help you begin to identify the different sources of information related to legal and ethical practice.
The legal and ethical frameworks of counselling practice are similar in one key way: they aim to protect the rights and well-being of clients, counsellors, and organisations. The key differences involve how they are developed and the sanctions or penalties that apply. Specific ethical codes and standards are primarily developed, maintained, and monitored by professional counselling bodies (e.g., the Australian Counselling Association) or organisations that employ counsellors. Legal requirements are developed and administered by governments and courts.
While breaching an ethical principle has professional implications for the counsellor (e.g., being expelled from a counselling body or fired from their position), breaching a legal requirement may further result in fines or even incarceration. This highlights the importance of being fully aware of one’s legal and ethical responsibilities. So, how do counsellors develop this awareness? Where can they find information about their legal and ethical requirements? Let’s start by exploring the main sources of ethical practice information that counsellors use to inform their practice.
Becoming a counsellor - Ethical Framework for the Counselling Professions
The presenter discusses aspects of ethical frameworks for counselling.
There are a number of sources of information that effective counsellors use as standards for ethical counselling practice. These include codes of ethics and practice, practice standards, the counsellor’s own values, and organisational policies and procedures.
Codes of Ethics and Practice
The Australian Counselling Association (ACA) is one of the primary professional bodies that seeks to guide counselling practice in Australia, and you will be eligible to join this body once you have successfully completed your Diploma of Counselling. The ACA has developed a Code of Ethics and Practice. The document describes the organisation’s endorsed ethical principles (i.e., the Code of Ethics) and how these should be implemented in practice (i.e., the Code of Practice).
To help you better understand the relationship between codes of ethics and codes of practice, consider the following example of an ethical principle from the Code of Ethics:
“Establish the helping relationship in order to maintain the integrity and empowerment of the client without offering advice.”
(ACA, 2019, p. 7)
This means that counsellors should support client autonomy and avoid advising a particular course of action.
An example of the related practice guideline from the Code of Practice is:
“Counsellors do not normally give advice.”
(ACA, 2019, p. 8)
This guideline explains how counsellors can protect client integrity and empowerment, as described in the ethical principle.
Essentially, the Code of Ethics outlines the core ethical principles that members are expected to abide by, while the Code of Practice sets out guidelines about how counsellors should deliver counselling services so that their practice reflects ethical principles. Failing to adhere to the ethical code can lead to a disciplinary hearing or expulsion from membership.
Read
Reading A – ACA’s Code of Ethics and Practice is provided so you can take the time to review this before continuing because it forms the basis of the ethical practices you will be learning about throughout this module.
Practice Standards
Another important source of information about ethical practice is practice standards. Practice standards generally define the level of expertise and professional practice behaviours that are required for a particular role or industry. For example, they may define required levels of training, continuing professional development, supervision, and service delivery (Bond, 2015).
Read
Reading B – Standards for Registered Counsellors is published by the ACA and is a set of standards for counsellors registered with the organisation. These are included in Reading B. In Australia, there are national standards for mental health practice, but there are no set standards for counselling as a whole.
Failure to meet minimum or fundamental standards may result in disciplinary or ‘fitness to practice’ hearings against an individual counsellor or whole organisation. In cases where counsellors fail to meet minimum practice standards, they may also be liable for legal charges of negligence by clients. (You will be learning more about negligence in the following sections of this module.)
Counsellor Values
Another key source of ethical guidance is the counsellor’s own values. These personal values will inevitably influence the counsellor’s practice. Therefore, it is important for counsellors to embrace the overall values of effective counselling practice such as respect for the client, non-judgemental practice, and the promotion of client autonomy. Of course, ethical issues may arise if the counsellor’s personal values conflict significantly with other sources of ethical guidance. For example, a counsellor who does not believe in abortion may find that this personal value conflicts with a client’s right to self-determination and non-judgemental service. It is important for counsellors to develop an understanding of their own values and how these have the potential to impact their work with clients. (We will be exploring counsellor values in more depth later.)
Applying Ethics in Counselling
The presenters in this video discuss how to apply ethics to counselling.
Check your understanding of the content so far!
There are a number of sources of information relating to legal practice that counsellors must be aware of. These include international treaties and conventions, commonwealth legislation, state legislation, common law, and organisational policies and procedures.
Needs and Rights
International treaties and conventions often influence Australian law. One example of this is the United Nations’ Universal Declaration of Human Rights. This declaration was adopted by the United Nations General Assembly in 1948 and outlines fundamental human rights to be protected. Rights (including human rights, children’s rights and animal rights) are often discussed, and most of us have heard of – or even read – this declaration. But it is worth pausing for a moment to think about what rights are. After all, many sources seem to assume that we already know and do not take the time to explain.
Rights are things that we are entitled to – whether for survival, ethical, or legal reasons – and are related to human needs. We all know there are basics that we need to survive, and still more if we are to live in a way that gives us a decent chance at physical and mental health, engagement with our families and communities, educational and work opportunities, and so on. Some of our basic needs include water, food, shelter, clothing, access to healthcare, and social contact. Among the many things we need if we are to function well and be active in our communities and societies include access to education, news and other information, and ways of communicating.
Therefore, some rights are largely recognition of a human need – we might say that we have a right to a safe home, a right to access clean drinking water or a right to an education. We also recognise that particular groups have additional rights based on their membership of that group. Children, for example, have the right to protection, with parents (or others where parents cannot or do not provide this) having the responsibility to provide protection, food, shelter, education and healthcare for their children. Similarly, people in groups that are marginalised within their societies have the right to freedom from discrimination. There are also rights that go beyond having particular needs met. For example, in democratic countries, we have a right to vote, and in societies with legal systems that aim for fairness and justice, there is a recognition of the right to a fair trial.
But just because someone has a need does not mean that this need will be met. So these rights are often formalised in legislation, such as federal and state or territory laws that outline – and provide mechanisms to promote or enforce – the rights of people in general, children, women, culturally and ethnically diverse groups, people of diverse sexualities and people with disabilities. There is no guarantee that a right will be respected either, but at least the international conventions and domestic laws that are endorsed and enacted provide accountability and encourage mechanisms to make it more likely that they will be. In some cases, they also provide for the punishment of people or organisations who abuse others’ rights or fail in their responsibilities to meet them.
You might be wondering why we are talking about rights here, but as you will see in the remainder of this module, throughout your studies, and in the work that follows, much of what counsellors and other helping professionals do is guided by rights, including human rights, children’s rights, and the right to be free from discrimination. Therefore, the United Nations Declaration of Human Rights is a great starting point.
Read
Reading C – Universal Declaration of Human Rights provides a copy of the Universal Declaration of Human Rights. As you read through it, consider how these articles relate to the counselling provision and the practice of counsellors. Remember that these rights are not only for our clients. As counsellors, you are also covered under these rights.
Check your understanding of the content so far!
Commonwealth and State Legislation and Common Law
As a counsellor, many of your work practices will be regulated by laws. In Australia, there are two sources of law: statutory laws that encompass both Commonwealth and state/territory legislation, and common law.
Statutory laws are laws that have been passed through Parliament. If a responsibility is statutory, it means that it is a legal requirement and there are generally legal consequences for not adhering to it. Legislation may apply to Australia as a whole (Commonwealth laws) or to individual states or territories (state/territory acts).
There are a wide range of statutory requirements that relate to the counselling profession. Some examples include the Privacy Act 1988 (Cth); the Freedom of Information Act 1982 (Cth); mental health legislation, e.g., Mental Health Act 2007 (NSW); anti-discrimination legislation, e.g., Sex Discrimination Act 1984 (Cth), Equal Opportunity Act 2010 (Victoria); reporting child abuse, e.g., Child Protection Act 1999 (Queensland); and workplace legislation, e.g., Fair Work Act 2009; Safe Work Australia Act 2008 (Cth).
While you will learn more about these Acts and how they influence counselling work later in this module, for now, the main point is to understand that counsellors and counselling organisations are required to comply with the legislation set out in Commonwealth and State Acts and that failure to comply with such legislation may result in a punishment determined and enforced by the courts. There is a wide range of resources that you can consult to access specific acts or regulations, or information about specific pieces of legislation. For example:
| Resource | Website |
|---|---|
| Commonwealth Legislation & Related Information | |
| The Federal Register of Legislation (the Legislation Register) is the authorised whole-of-government website for Commonwealth legislation and related documents. | https://www.legislation.gov.au/ |
| Commonwealth acts and regulations, the Constitution, and links to state and territory legislation. | https://info.australia.gov.au/information-and-services/public-safety-and-law/legislation |
| The Australasian Legal Information Institute (AustLII) publishes public legal information (legislation, treaties, decisions of courts and tribunals, etc.). | http://www.austlii.edu.au/ |
| The Australian Law Reform Commission is a federal agency that reviews Australia’s laws to promote improved access to justice for all Australians, encouraging laws and related processes to become more equitable, fair, and efficient. | https://www.alrc.gov.au/ |
| State Legislation & Related Information | |
| Australian Capital Territory | https://legislation.act.gov.au/ |
| New South Wales | https://legislation.nsw.gov.au/ |
| Northern Territory | https://legislation.nt.gov.au/ |
| Queensland | https://www.legislation.qld.gov.au/ |
| South Australia | https://legislation.sa.gov.au/ |
| Tasmania | https://www.legislation.tas.gov.au/ |
| Victoria | https://www.legislation.vic.gov.au/ |
| Western Australia | https://www.legislation.wa.gov.au/ |
However, not all counsellor responsibilities are set out in legislation. Sometimes, a counsellor’s actions (or failure to act) can come under the rule of common law. Common law refers to the decisions that are made in court by judges who are guided by legal precedents (or previous rulings). For example, there is no direct legislation outlining what constitutes a duty of care in a counselling role.
Therefore, if a counsellor is accused of failing in their duty of care it is not simply a case of consulting a specific Act. The counsellor’s case will need to be decided in court according to legal precedents and what the profession and community believe constitutes an appropriate level of care. The court may also refer to instruments such as industry codes of ethics and conduct and organisational policies and procedures in order to determine whether a counsellor has failed in their duty of care. However, if there is a conflict between legislation (i.e., statutory law) and common law, legislation will override the common law.
Organisational Policies and Procedures
Many counselling organisations develop specific codes of conduct and other organisational standards that relate to the behaviours that workers are expected to display. These documents provide counsellors (and other workers) within these organisations with additional guidance on expected behaviours and what to do in the presence of ethical dilemmas. If you work for an organisation that has specific codes of conduct or other standards in place, then it will be vital for you to comply with these standards and follow any protocols or procedures within them.
When working within a counselling service in Australia, it's crucial to have a clear understanding of how workplace policies, procedures, and protocols are developed. These documents are foundational to ensuring that the service operates ethically, effectively, and in compliance with relevant legislation. This section of the learner guide will explore the steps involved in the development process, from identification of need through to implementation and review.
Identifying the Need
The development process begins with identifying a need for a new or revised policy, procedure, or protocol. This need can arise from various sources, including changes in legislation, feedback from clients and staff, or during the review of current practices. Regular audits of the service can also highlight areas where new policies are required.
Conducting Research
Research is a critical step in developing these documents. It involves understanding the legal obligations specific to counselling services in Australia, ethical guidelines provided by professional bodies, and industry best practices. This research ensures that the documents are not only compliant with current laws but also reflect the highest standards of professional conduct.
Drafting the Document
Drafting involves creating a clear, accessible, and relevant document. It's important to use language that is easy to understand and to structure the document in a way that makes it practical to implement. Involving a diverse group of stakeholders, including counselling staff, management, and potentially clients, can provide valuable insights and ensure the document meets the needs of all parties involved.
Legal Review and Compliance
Once drafted, the document should be reviewed by legal advisors or compliance officers. This step is essential to ensure that the policy, procedure, or protocol meets all legislative requirements and ethical standards. It helps to mitigate risks and protect the interests of clients and staff.
Approval
The final draft requires approval from senior management or the organization's governing body. This approval signifies that the document is ready for implementation within the service.
Implementation
Effective implementation involves communicating the new document to all staff, providing training as necessary, and integrating it into the service's daily operations. It may also require updating existing systems and processes to align with the new guidelines.
Monitoring and Review
Establishing a mechanism for monitoring compliance and effectiveness is crucial. The document should be regularly reviewed to assess its impact, with adjustments made as necessary. Feedback from staff and clients should be considered during these reviews to ensure the document remains relevant and effective.
By following these steps, counselling services can ensure that their workplace policies, procedures, and protocols are developed in a thoughtful and strategic manner. This not only aids in compliance with legal and ethical standards but also supports the delivery of high-quality, safe, and effective counselling services.
Legal and Ethical Guidelines Overview for Coaches
This video provides a thorough overview of legal and ethical guidelines to consider in your counselling practice.
In this section of the module, you were introduced to the various frameworks and sources of information that underpin legal and ethical counselling practice. In the next section of this module, you will learn more about these requirements and how they impact the counsellor’s role.
Australian Counselling Association (2019). Code of ethics and practice of the association for counsellors in Australia. https://www.theaca.net.au/documents/ACA%20Code%20of%20Ethics%20and%20Practice%20Ver15.pdf
Bond, T. (2015). Standards and ethics for counselling in action. (4th ed.). International: Sage Publications.
Community Door (n.d.). Equity, anti-discrimination and workplace harassment policy and procedure example. http://communitydoor.org.au/organisational-resources/administration/policies-procedures-and-templates/people-working-in-the
