LEGAL

1
LEGAL ETHICAL ISSUES FOR COUNSELING CENTER
TRAINING PROGRAMS

• Gloria C. Saito, Ph.D.
• University of California,
• Berkeley

2
Introduction and Overview

• Counseling Center settings agency issues to
  consider in training unlicensed professionals
• Legal and ethical issues for supervisors
• Guidelines for ethical decision-making
• Case vignettes

3
Definitions Law and Ethics

• Ethical standards are conceptually broad in
  nature, few in number and open to interpretation
  by the practitioner. . . . They are . . . A call
  to ethical excellence. Ethical standards are a
  statement from a particular profession to the
  general public regarding what they stand for.
• (Bernard and Goodyear, 1998)

4
Definitions Law and Ethics

• The law . . . is specific in nature and is
  introduced when a particular act has been
  perceived to have endangered or harmed those whom
  the profession serves. . . . The law is not
  concerned with the highest standards of
  professional practice when judging someone, but
  only in minimally acceptable behavior.
• (Bernard and Goodyear, 1998)

5
Agency Issues for Counseling Center Training
Programs

• Selection Issues
• APPIC Match Policies (www.appic.org)
• CAPIC Guidelines (www.capic.net)
• University personnel and human resources policies
• Local, state and federal regulations
• Americans with Disabilities Act (ADA) regulations

6
Agency Issues, contd

• Parameters for Employment and Informed Consent
• Conditions of employment
• Requirements for criminal background checks
• Stipends, number of hours per week, evaluation
  process

7
Agency Issues, contd

• Truth in Advertising about the program and
  training offered.
• Is the program designed to provide appropriate
  training experiences and to meet requirements for
  academic programs, licensure and/or
  certification?
• Is the description of the program in publicized
  materials current and accurate, providing
  information on the training goals and objectives,
  requirements, stipends, benefits, etc.?

8
Agency Issues, contd

• Expectation of trainees clear statement about
  what is expected of trainees
• Competency issues agency has the duty to assign
  only those clients whom the trainee is competent
  to treat
• Confidentiality and limits to confidentiality
• Written policies and procedures to guide the
  agency, supervisors and trainees in the
  management of clients who are dangerous or at
  risk.
• Due process and grievance procedures
• Contextual issues budget and staffing,
  licensing laws and regulations, agency pressures
  and the service delivery vs. training balance

9
Supervision Issues

• Supervision defined
• An interpersonal process that typically involves
  a more experienced clinician (master) with
  oversight and evaluative responsibility for a
  less experienced clinician (apprentice) who
  shares educational and therapeutic goals. The
  educational goal primarily concerns the growth
  and development of professional competence by the
  trainee. . . Therapeutically, supervisor and
  supervisee collaborate to ensure the welfare of
  the client. (Holloway, 1992)

10
Supervision Issues

• Supervision defined (again)
• An intervention that is provided by a senior
  member of a profession to a junior member of that
  same profession. This relationship is
  evaluative, extends over time and has the
  simultaneous function/purposes of enhancing the
  function of the junior member, monitoring the
  quality of professional services offered to
  clients and serving as a gatekeeper for those who
  are to enter the profession.
• (Bernard and Goodyear, 1998)

11
Legal and Ethical Issues for Supervisors

• Getting started nuts and bolts (Board of
  Psychology requirements)
• Supervisory Agreement form
• Supervision Disclosure form
• Weekly log of activities
• Verification of Experience form

12
Legal and Ethical Issues for Supervisors

• Qualifications of supervisors
• demonstrated professional training and competence
  in areas in which supervision is being provided
  (supervisor must be competent to see a client to
  whom trainee is assigned.)
• formal training in supervision (Board of
  Psychology regulations)
• meet continuing education requirements and have a
  current license

13
Legal and Ethical Issues for Supervisors, contd

• Duties and responsibilities of supervisors
• Heavy obligation to protect the welfare of the
  consumer/client
• Have sufficient knowledge of each client to
  monitor the work of the trainee, i.e., client
  care
• Oversight of therapeutic behavior of a less
  experienced, unlicensed professional whose skills
  may not be well-known or well-developed
• Review and countersign client records

14
Legal and Ethical Issues for Supervisors, contd

• Duties and responsibilities of supervisors,
  contd
• Availability in case of emergencies (be available
  100 of the time either on site or by other
  means)
• Keep records of supervision
• Obligation to further the professional
  development of the trainee by focus on skill
  development as well as professional identity
  issues
• Provide ongoing and timely feedback as well as
  formal evaluations based on actual performance
  and established program requirements
• Avoid abuses of power in supervision that may
  potentially result in exploitation or harm

15
Legal and Ethical Issues for Supervisors, contd

• Duties and responsibilities of supervisors,
  contd
• Challenge supervisee about issues that may
  interfere with quality care while setting
  appropriate boundaries and limits (supervision is
  not therapy)
• Special responsibility to structure and maintain
  a supervisory relationship that demonstrates
  ethically appropriate behavior and minimizes the
  potential negative quality of transference
  issues. (Upchurch, 1985)

16
Legal and Ethical Issues for Supervisors, contd

• Informed consent for supervision
• Do trainees have a choice of supervisor, and what
  are the choices? Are trainees aware of how
  supervisory assignments are made?
• Need for clear specification of duties,
  supervision philosophy/approach, goals,
  requirements, expectations, evaluation procedures

17
Legal and Ethical Issues for Supervisors, contd

• Informed consent of clients
• Clients must be informed about the trainees
  status and about the supervisors oversight of
  the treatment
• Supervisors must be available to clients if
  necessary
• Supervisors must insure that trainees have
  informed their clients about the parameters of
  counseling
• Clients must give consent for procedures
  necessary or required for supervision, e.g.,
  audio or videotaping

18
Legal and Ethical Issues for Supervisors, contd

• Confidentiality
• Whats confidential in supervision?
• The trainees rights to privacy
• What about group supervision, supervisors
  meetings, training committee meetings?
• Do not require supervisee to disclose personal
  information about sexual history, history of
  abuse/neglect, psychotherapy, relationships with
  family, peers, etc., unless this is specified
  clearly in program admissions and training
  materials

19
Legal and Ethical Issues for Supervisors, contd

• Multiple Relationships
• Supervisor is guided by the principle of DO NO
  HARM
• Supervisor is in the position of power and
  trainees have limited power in the relationship
• Sexual Relationships between supervisor and
  supervisee prohibited
• Sexual attraction is inevitable and important to
  discuss
• Supervisors responsibility to teach trainees how
  to handle sexual attraction issues

20
Legal and Ethical Issues for Supervisors, contd

• Multiple Relationships, contd
• Supervisors should not provide psychotherapy
  services to supervisees and should avoid
  conflicts of interest which may impair their
  judgment
• Supervisors avoid dual relationships where there
  is the potential for abuse of power and/or
  exploitation
• Supervisors avoid actions that may impair their
  judgment and ability to objectively supervise and
  evaluate the trainee (e.g., supervising a friend
  or relative)

21
Legal and Ethical Issues for Supervisors, contd

• Multiple Relationships, contd
• Supervisors maintain appropriate boundaries (what
  about professional lunches, office parties,
  workshops, conferences?)
• Differentiate between multiple relationships that
  abuse power, exploit or harm the supervisee and
  those that occur in the positive context of a
  developing professional relationship
• Supervision and therapy and the distinction
  between them how to explore personal issues
  related to client care without crossing privacy
  boundaries
• Conflicting roles inherent in the supervisor
  role mentor, supporter, evaluator, colleague,
  reference

22
Legal and Ethical Issues for Supervisors, contd

• Due Process Issues
• Policies and procedures are provided to the
  supervisee by the training program and the
  supervisor in writing at the beginning of the
  traineeship. These include
• Trainee rights and responsibilities
• Expectations, roles, rules, requirements
• Procedures and process for feedback and
  evaluation
• Formal guidelines for what happens when a trainee
  is impaired, including definitions of impairment
  and processes for notice, warning and appeal,
  remediation, time frame for notice and appeal
• Primary goal is to avoid arbitrary or capricious
  actions on the part of the training program and
  the supervisor

23
Legal and Ethical Issues for Supervisors, contd

• Liability Issues
• Malpractice defined
• harm to another individual due to negligence
  consisting of the breach of a professional duty
  or standard of care. (Disney Stephens, 1994)
• The Good News
• Why It Pays to Pay Attention
• Supervisor is held responsible for supervisees
  actions and quality of client care

24
Legal and Ethical Issues for Supervisors, contd

• Liability Issues
• Direct Liability
• Negligent supervision supervisors inattention
  or negligence caused the clients damages
• Supervisor or training program assigned tasks
  which the trainee was not adequately trained or
  prepared to carry out, and the client was harmed

25
Legal and Ethical Issues for Supervisors, contd

• Liability Issues, contd
• Vicarious Liability supervisors can be sued and
  held liable even if they did nothing wrong under
  the concept of respondeat superior (let the
  master respond)
• Final responsibility for client welfare rests
  with the supervisor, not the trainee

26
Legal and Ethical Issues for Supervisors, contd

• Liability Issues Vicarious Liability, contd
• Criteria
• Trainee voluntarily agrees to work under the
  direction and control of the supervisor
• Trainee acts within the scope of tasks permitted
  by the supervisor
• Supervisor has the power to control and direct
  the supervisees work
• The act that injured the client is within the
  supervisees scope of employment
• Client has the burden to prove that an actual
  injury occurred

27
Legal and Ethical Issues for Supervisors, contd

• Areas of Vulnerability for Supervisors
• (from Campbell, 2000)
• Client is not informed of supervisees trainee
  status and the limits of confidentiality
• Supervisor has incomplete information about the
  client due to multiple factors (workload issues,
  incomplete/inadequate communication, trainee
  withholds information)
• Trainee does not follow supervisors
  recommendations, but does not disclose this

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To Summarize Dilemmas for Supervisors

• Issues of Hierarchy and Power
• Conflicting Roles and Multiple Hats
• Negotiating Boundaries
• Confidentiality

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Guidelines for Ethical Decision-Making

• Provide current and accurate information about
  your program
• Set standards for training and performance in
  writing and communicate and discuss these with
  your trainees
• Provide a timely and specific process for
  providing feedback and evaluation
• Develop good record-keeping practices, both for
  client work and for supervision
• Apply standards early and consistently
• Base decisions on facts, not opinion or bias, and
  document behaviors
• Document, document, document, but beware of email
  communication
• Seek consultation

30
Guidelines for Ethical Decision-Making, contd

• Bernard and Goodyear (1998) suggest the following
  cognitive map for resolving ethical dilemmas
• 1. Identify the problem or dilemma
• 2. Identify the potential issues involved
• 3. Review relevant ethical guidelines
• 4. Obtain consultation
• 5. Consider possible and probably courses of
  action
• 6. Enumerate the consequences of various
  decisions
• 7. Decide what appears to be the best course of
  action

31
Case Vignettes

• Vignette 1
• The client is a 19 year-old Caucasian
  undergraduate woman with a severe eating disorder
  (anorexia). The supervisee is a 28 year old
  Caucasian woman on her predoctoral internship.
  The intern has had some experience in treating
  eating disorders and would like to specialize in
  this area. She has done an assessment of the
  students concerns and in addition to counseling
  at the University Counseling Center, has referred
  the student for medical care and follow-up.
  During supervision, the intern has down-played
  the severity of the eating disorder, and has
  assured the supervisor that the student has
  followed through with medical care.
• While the intern is on vacation, the student
  comes into the CC in crisis. It is apparent that
  she has not in fact followed through with medical
  care. Moreover, the supervisor reviews the
  record and, in her assessment, the student is
  more severely impaired than the intern had
  indicated. The supervisor decides to involve the
  students parents, and in so doing, breaks
  confidentiality.
• What are the legal and ethical issues involved in
  this case?

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Case Vignettes

• Vignette 2
• The student is a 22 year old African American
  male graduate student in Physics who comes into
  the Counseling Center for an emergency drop-in
  appointment. The supervisee is a 30 year old
  Asian American male postdoctoral fellow. In
  doing the assessment, it is clear to the postdoc
  fellow that the student is experiencing manic and
  psychotic symptoms and is potentially suicidal.
  The postdoc seeks consultation from senior staff
  members, who strongly advise him to pursue
  hospitalization for the student. The postdoc
  feels great empathy for the student who is
  adamant that he does not want to be in the
  hospital. As a result, the postdoc is reluctant
  to hospitalize the student, but finally does so
  after many hours and numerous consultations with
  staff. Senior staff are concerned that the
  postdoc has let his countertransference reactions
  guide his behavior, thereby prolonging the
  process of getting the student to the hospital.
  They try to give the postdoc feedback about this,
  but the postdoc feels invalidated and wronged and
  cannot take in the feedback.
• What are the ethical and liability issues in this
  case?

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References

• Bernard, J.M. Goodyear R.K. (1998).
  Fundamentals of clinical supervision.  Needham
  Heights, MA  Allyn Bacon. Campbell,J.M.
  (2000).  Becoming an effective supervisor. Ann
  Arbor, MI  Sheridan Books.Frankel, A.S.
  (2000).  Laws ethics  beyond the basics. 
  Huntinton Beach, CA  Psycho-Legal Associates,
  Inc.Harrar, W., VandeCreek, L. Knapp, S. 
  (1990). Ethical and legal aspects of clinical
  supervision.  Professional Psychology  Research
  and Practice.  21, 37-41.Nagy, T.F. (2005). 
  Ethics in plain english.  Washington D.C. 
  American Psychological Association.Roberts,
  G.T., Murrell, P.H., Thomas, R.E. Claxton, C.S.
  (1982).  Ethical concerns for counseling
  educators.  Counselor Education  and Supervision,
  22, 8-14.
• State of California, Department of Consumer
  Affairs, Board of Psychology.  (2005).  Laws and
  regulations relating to the practice of
  psychology.  Sacramento, CA  Department of
  Consumer Affairs.Upchurch, D.W., (1985) 
  Ethical standards and the supervisiory process. 
  Counselor Education  and Supervision, 25, 90-98.
• Wise, P.S., Lowery, S. Silverglade, L.
  (1989)  Personal Counseling for Counselors in
  Training - Guidelines for Supervisors.  Counselor
  Education and Supervision, 28- 326-336.