Section 3: Fulfilling Legal and Ethical Responsibilities

Counsellors can be faced with a range of legal and ethical issues throughout their practice. In the case of legal issues, the counsellor’s course of action is usually clear – they are required to comply with their legal requirements. However, in the case of ethical requirements, the ‘right’ course of action isn’t always as clear because there can be conflicts between different ethical principles and/or practices. There is a wide range of potential ethical dilemmas that a counsellor might face throughout their career. We will explore a few of the most common.

What Ethical Dilemmas Do Psychologists Face?

A  short video describing common ethical dilemmas in the counselling industry. 

Managing Conflicts Between Different Counsellor Responsibilities and Client Rights

One common ethical dilemma occurs when there is a conflict between a counsellor’s duty of care to prevent harm from occurring to the client or another person and the counsellor’s responsibility to protect client confidentiality. For example, what should a counsellor do when a client tells them that they intend to harm another person? What about if the client tells the counsellor that they intend to harm themselves? In these situations should the counsellor protect the client’s confidentiality and autonomy or should they take action to warn the person the client intends to harm or take action to prevent the client from harming themselves? These are considered ethical dilemmas because in these situations the counsellor has conflicting ethical responsibilities.

While these are extreme examples, counsellors face a similar ethical dilemma when clients tell them that they intend to engage in risky behaviours like drug use. In these situations do counsellors have a duty of care to prevent harm coming to the client? Does this responsibility override the client’s right to autonomy? The concept of duty of care is often tied up with the concept of dignity of risk.

Dignity of risk is often used in disability services and the mental health sector, and it essentially refers to the concept that clients have a right to make their own decisions regarding risk in order to allow them to experience life fully. The goal of this principle is to emphasise personal choice and self-determination. This corresponds to the general counselling ethical consideration of promoting client autonomy. However, the question then arises as to at what point a counsellor’s duty to prevent harm necessitates intervention. This is where ethical decision-making comes in.

While there are a number of different approaches to ethical decision-making, they all involve the counsellor fully considering various options in line with legal, ethical, and organisational responsibilities, before selecting the most appropriate course of action to take. Proctor proposes a simple four-step model of ethical decision-making:

1. Identify and describe the problem or dilemma and consider all perspectives in the situation, identifying laws, ethical frameworks, ethical principles, organisational values and rules, and sociocultural factors involved.
2. Consult with peers or experts, exploring one’s own feelings, intuitions, values, biases, self-interests and prejudices in the situation.
3. Identify possible courses of action, exploring the potential impact of each course and benefits and risks of each.
4. Using all these considerations select an action and take responsibility for justifying it and then monitor and evaluate the outcome.

^{(Proctor, 2014, p. 73)}

Corey, Corey, Corey, and Callanan (2015) suggest the following process for ethical decision-making:

1. Identify the problem or dilemma: Gather all relevant information, clarify the nature of the issue, and look at it from multiple perspectives.
2. Identify the potential issues involved: Fully consider the context, including the rights, responsibilities, and welfare of all involved.
3. Review relevant ethical codes: Consult the codes and standards of the organisation and the profession to determine whether they offer guidance and what that guidance is.
4. Know the applicable laws and regulations: Consider all relevant legislation and organisational policies; determine whether they guide actions to be taken in such a situation.
5. Obtain consultation: Consult with colleagues and supervisors to gain the benefit of their perspectives, experience, and expertise, and to extend your understanding of relevant factors.
6. Consider possible and probable courses of action: Brainstorm as many potentially viable solutions to the dilemma as you can.
7. Enumerate the consequences of various decisions: Consider the probable outcomes, risks, and benefits of the various solutions. It is important to consider your legal and ethical responsibilities as you do so.
8. Determine what appears to be the best course of action: Carefully review everything, select a course of action (in consultation with your supervisor), and enact it.

Avoiding Common Ethical Violations 

This video provides an informative lecture on how to avoid common ethical violations. 

As you read through each of these models, take some time to reflect upon what they have in common – the concept of the importance of carefully considering a full range of information before deciding how to proceed. This is fundamental to effective ethical decision-making. Counsellors should not make ‘snap decisions’ when faced with an ethical dilemma. Additionally, they should not make their decisions alone. The importance of supervision cannot be overstated in this context. Counsellors should discuss all ethical dilemmas in supervision and obtain guidance when determining the most appropriate course of action.

Managing Boundaries and Dual Relationships

In the previous section of this module, you learned about the importance of maintaining appropriate client-counsellor boundaries. Boundaries and dual relationships are another common source of ethical dilemmas. For example, what should a counsellor do when a client gives them a small gift and the counsellor believes that turning this down would damage the therapeutic relationship? What about a long-term client inviting a counsellor to their graduation ceremony because they feel that the progress they have made in counselling has been instrumental in enabling them to graduate? What about a counsellor in a small town who is likely to see her clients about town and, as a result, be exposed to dual relationships?

Not all dual relationships can be avoided and counsellors need to engage in ethical decision-making processes in order to decide upon appropriate actions to manage potential boundary issues. Younggren (2002) proposes the following questions for counsellors to ask themselves when considering whether or not to engage in a dual-role relationship with a client:

• Is the dual relationship necessary? While counsellors should ideally choose to avoid dual-role relationships, such a relationship may be necessary in some cases.
• Is the dual relationship exploitive? If the relationship would in any way exploit the client then it is unethical and should not be entered into.
• Who does this dual relationship benefit? Dual relationships may be appropriate if they benefit the client but are generally unethical if they only benefit the counsellor.
• Is there a risk that the dual relationship could harm the client? As part of their decision-making processes, counsellors should consider if such a relationship could harm the client.
• Is there a risk that the dual relationship could disrupt the therapeutic alliance? Similarly, counsellors must consider if the dual relationship would damage the existing therapeutic alliance and take all reasonable steps to minimise harm.
• Am I being objective in my evaluation of this matter? Counsellors should be objective in their evaluation and decision-making. Conferring with professional supervisors is a common way to promote objective decision-making.
• Does the client give informed consent regarding the risks of engaging in the dual relationship? It is vital to discuss the possible consequences of dual-role relationships with the client and gain informed consent.

Counsellors should consider these sorts of questions as part of the ethical decision-making process. They also need to discuss these issues during supervision to ensure the issue is considered thoroughly.

Conflicts of Interest

Another common ethical dilemma that can arise in counselling practice is conflict of interest. A conflict of interest occurs when there is the potential to undermine the counsellor’s impartiality due to a conflict between the counsellor’s self-interest and their professional responsibilities or the best interests of the client. Conflicts of interest can occur when a counsellor engages in dual relationships and boundary violations. For example, it would be a conflict of interest for a counsellor to accept a family member or friend as a client. Conflicts of interest also arise when a counsellor seeks to work separately with two clients who are known to each other and discuss each other during sessions. For example, it would be a conflict of interest for a counsellor who had been counselling a man in relation to marital issues to also then accept his wife as a client due to the counsellor’s existing therapeutic relationship with the husband. Another type of conflict of interest that can arise occurs when a counsellor is in a position to receive personal or financial benefits based upon decisions made in counselling. Let’s look at a case study of how that could occur.

Counsellors should always be mindful of the potential for conflicts of interest to occur. The ACA Code of Ethics and Practice advises counsellors to avoid conflicts of interest wherever possible. Obviously, a counsellor should avoid foreseeable conflicts of interest. For example, they should not accept people who they have established personal/professional relationships with as clients. Additionally, in situations of potential financial conflict of interest such as that presented in the case study, a counsellor should discuss the situation with their supervisor/manager and allow an independent party to make the decision.

Conflicts of interest are not always immediately identifiable. Consider the case of a counsellor who accepts a client and only later finds out that this client has an existing relationship with them or one of their other clients. When a conflict of interest does arise, counsellors will need to discuss the issue with their supervisor in order to determine the most appropriate actions to take.

It is essential that when a conflict of interest is identified, steps are taken to address the situation promptly and in accordance with all relevant ethical and organisational requirements. In many cases, organisations have specific policies and procedures in place to manage conflicts of interest. These typically involve the same general requirements, including the following:

• Conflicts of interest should be avoided wherever they are foreseeable.
• If a conflict does occur then it must be disclosed immediately. This typically involves the counsellor raising the matter with their supervisor or manager, who decides upon the next steps based on the specific situation and the organisation’s policies and procedures.
• The supervisor or manager will provide guidance regarding how the conflict or situation should be handled. These instructions must be actioned by the counsellor.
• All decisions and actions must be documented.

These steps promote the appropriate handling of conflicts of interest and ensure that the decision-making surrounding them is documented. This helps protect the counsellor and the organisation in the event of future legal or ethical complaints.

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Managing Values Conflict

This short film provides a lesson about not judging others. Reflect on the video as you work through this section. 

We see someone walk into a room and BAM! We judge them by how they walk, talk, dress and look. In a clever lesson about not judging others we see how we can be totally off by what we think is happening or who the person is before us and from what is actually happening and who in essence we are in contact with. Give the person the benefit of the doubt, we hardly know the full picture so take a moment, pause, and allow yourself the beauty of connecting with another human being without any judgments. - Mier Kay

An important area of counselling practice involves the counsellor managing their own personal values and engaging in non-judgemental practice. While this seems to be quite a simple requirement, it is a common source of problems within counselling.

Every individual has their own personal values that they hold dear. For counsellors, these values help shape the decisions they make, the way in which they do their work and their interactions with clients. However, counsellors are required to minimise the impact that their personal values have on the counselling process and provide non-judgemental practice. This is not as simple as it sounds. Counsellors need to develop their self-awareness and monitor their attitudes throughout counselling practice. It is important for counsellors to continually monitor themselves and become adept at reading their own emotional reactions in order to prevent these from impacting the counselling relationship.

If, as a counsellor, you ever identify that you are imposing your own values on a client or judging a client from your own frame of reference then you will need to address this. Some of the steps that you can take include:

• As soon as you are aware of the issue take a mental step back and seek to better understand and work within the client’s own value system rather than your own.
• Consciously consider the professional values of counselling practice and carefully frame your interactions around these values.
• Continually monitor your interactions with the client. Maintain a non-judgemental approach, foster self-determination, be respectful, and prioritise your client’s interests.
• Discuss the situation with your supervisor so that they can also carefully monitor your practice.
• If you find that you are not able to be respectful and objective or if you find yourself imposing your own values upon your client then you should consider making arrangements to refer the client to another counsellor; it will be important to discuss this with your supervisor. If your supervisor agrees that this is the most appropriate action to take then they will also help you decide upon the most appropriate way to discuss this with the client.

Ultimately, counsellors have an ethical responsibility to take all appropriate steps to manage any values conflicts that occur.

Nonjudgemental Language | Open Up | how we communicate

A short video providing advice and tips on using nonjudgmental language. 

Recognising and Addressing Legal and Ethical Breaches

So far we have discussed how to avoid unethical conduct and how to handle potential ethical dilemmas that a counsellor might face. While each counsellor has a responsibility to conform to their legal and ethical requirements, counsellors also have a responsibility to recognise and appropriately address any breaches that they observe. As a counsellor, if you become aware of any unethical conduct, you have a responsibility to act on this information by following your organisation’s policies and procedures for such situations. In most cases, this will involve reporting the matter immediately to your supervisor or manager (either verbally or in writing). From there it will be important to accurately document what has occurred (e.g., what you observed or heard) and to cooperate with management as they investigate the matter.

In some cases, counsellors may also identify improvements that can be made to organisational policies and procedures to support legal and ethical compliance. In such cases, counsellors should proactively share their thoughts with their colleagues and supervisors.

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Organisational policies, procedures and protocols should be regularly reviewed and updated to reflect current legislation and standards of practice. Typically, organisational management should ensure that policies, procedures and protocols are reviewed:

• when there is a change in legal or ethical requirements (for example, updates to acts, codes of ethics or practice and standards of practice)
• as new guidelines and evidence on best practice emerge
• when incidents occur that indicate the policy is not working (for example, clients submit complaints about confidentiality violations created by a particular service process)
• regularly as part of the organisation’s annual review and planning.

Most organisations will have committees made up of management representatives and workers to review policies, procedures and protocols regularly. However, it is every worker’s responsibility to contribute to this process. You can do this by:

• being familiar with current policies, procedures and protocols and being willing to make suggestions and contribute to the discussion
• proactively sharing feedback with colleagues and supervisors (for example, when you have dealt with a legal or ethical issue, share your experience and lessons learned with colleagues and supervisors); working with the organisation’s management to review and improve their protocols and procedures to reflect legal and ethical responsibilities
• keeping up-to-date with current best practice through continuing professional education and sharing your knowledge with management and work colleagues
• involving clients and other stakeholders in the consultation process
• participating in committees and meetings set up to review policies and protocols
• completing employee feedback forms.

If you ever observe a situation in which policies, procedures, or work practices could be improved to better meet legal and ethical requirements, it is your responsibility to share this information. This might involve discussing the matter directly with a colleague, raising the issue with your supervisor/manager, or completing an employee feedback form.

Let’s look at an example of how a counsellor can identify a problematic work practice and contribute to the review of policies and procedures to help improve their organisation’s compliance.

A Note on A Counsellor’s Rights

Throughout this module, the focus has been on the rights of clients and the responsibilities that a counsellor has to their clients. However, it is important to note that counsellors also have rights that should be protected by their organisations. For example, you briefly learned about an organisation’s responsibility to provide a safe working environment when you learned about WHS requirements. As a counsellor, if you are ever concerned about your own, your colleagues', or your client’s safety, you should raise this issue with management and take appropriate steps to contribute to the improvement of WHS policies and procedures.

A key piece of industrial relations legislation that is designed to protect workers in Australia is the Fair Work Act 2009. This act sets out national statutory requirements and obligations related to areas such as workplace rights, discrimination and unfair dismissal, and employee entitlements. As a counsellor, you should be aware of your rights under this legislation and promote compliance within your workplace.

If you identify any breaches of your own or your colleagues’ rights you should raise this matter with your organisation’s management or discuss the matter with the Fair Work Ombudsman. Protecting your own rights as an employee helps to contribute to overall organisational compliance and to safe, effective, and professional counselling services.

Counsellors have other rights too, even if they aren’t clearly stated in the Fair Work Act or WHS legislation and regulations. Some of these rights are protected by legislation; some are not but are generally agreed upon within the professional community. Some require others to do (or not do) something; others counsellors will have to organise for themselves. These rights include the right to:

• be treated with respect by employers and co-workers
• be free from violence and abuse from any source, including clients
• be protected from discrimination
• ‘leave work at work’ (e.g., not being expected to answer calls or do other work outside of stated working hours)
• regular breaks in work, such as snack and meal breaks
• take time off for personal care, family reasons, and holidays
• support in their professional lives (e.g., supervision, debriefing)
• support in their personal lives (e.g., personal counselling, health care).

Remember, as a human being, you have all the same rights as everyone else, and your well-being is just as important as anyone else’s.

Rights, Responsibilities and Accountabilities of a Counsellor

A short video outlining the legal and ethical accountabilities of a Counsellor. 

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Throughout this module, you have learned about the key legal and ethical requirements of effective counselling. However, it is important to understand that this module has only provided you with a broad overview of the legal and ethical requirements of counselling practice. As you progress in your career as a counsellor, you must continue developing your skills and knowledge to maintain effective, professional, and compliant service delivery.

Corey, G., Corey. M., Corey, C., & Callanan. P. (2015). Issues and ethics in the helping professions (9th ed.). Boston, MA: Thomson Brooks/Cole.

Proctor, G. (2014). Values and ethics in counselling and psychotherapy. London, UK: Sage.

Younggren, J. (2002). Ethical decision-making and dual relationships. Retrieved from http://www.kspope.com/dual/younggren.php