Ethical and legal dilemmas in counseling

Abstract
Counseling is a highly sensitive profession that depends on maintaining boundaries and solidifying trust. The establishment of clear ethical codes helps counselors to understand their roles and responsibilities to clients and to their colleagues. Laws at the state and federal level may provide additional protection to both clients and counselors and determine penalties for ethical violations. However, counselors inevitably encounter ethical dilemmas. Ethical dilemmas can arise when there is a conflict between two or more moral standards, or between the law and an ethical standard. Likewise, a counselor’s personal moral code could sometimes conflict with the law or the ethical code guiding their professional practice. This paper outlines some of the most common ethical and legal dilemmas counselors are likely to face, and how counselors can rightfully and safely resolve those conflicts. 
Introduction
The counseling profession is governed by a set of ethical standards similar to those used in the healthcare profession in general. For example, the foremost ethical principles guiding the American Counseling Association (ACA, 2014) Code of Ethics include autonomy, nonmaleficence, beneficence, justice, fidelity, and veracity. Autonomy refers to the empowerment of the client: protecting the client’s rights to self-determination. Yet counselors may inevitably encounter dilemmas related to the client’s right to self-determination. A client who is a minor, for example, has fewer rights than an adult client. An adult client, on the other hand, may also experience lapses in judgment that would require the counselor to make informed decisions affecting treatment options. 
Many of the situations counselors face in their work can be resolved simply and in a straightforward manner by simply referring to the ethical codes of prevailing professional organizations like the American Counseling Association or the American Psychological Association. Unfortunately, though, many situations are ambiguous. Counselors can consult with trusted colleagues, mentors, and advisors, or even with a legal team when dilemmas prove particularly problematic. To avoid lawsuits, to prevent errors in judgment that might impact one’s license or certification, and particularly to avoid harming clients and other stakeholders, counselors need to be aware of the best ways of resolving common conflicts in their profession.
Confidentiality
One of the most important ethical principles in counseling is confidentiality. Clients—including children—are entitled to confidentiality. The law generally protects the client’s right to confidentiality, too, which is why counselors always need to keep confidentiality in mind when working with sensitive populations. Clients will have the right to sue counselors who breach confidentiality. Counselors could inadvertently breach confidentiality, such as neglecting to safeguard client records. For this reason, counselors need to protect client data when it is stored digitally as well as in printed formats. 
The reason behind client confidentiality is clear: the counseling profession depends on the maintenance of trust. Clients would not open up to or confide in their counselors if they knew that the counselor might divulge that information to a family member, a friend, a colleague, or an employer. The information shared in therapy is often highly sensitive and could seriously compromise the client’s reputation or relationships. 
Ethical and legal dilemmas regarding client confidentiality frequently arise in situations when the client is at risk for self-harm or harming others. For instance, if a client expresses suicidal thoughts and has attempted suicide in the past, the counselor faces a clear dilemma between alerting a third party to protect the client versus protecting the person’s confidentiality. Only if the counselor has concrete reasons to believe the client could or would act on their suicidal ideations would breaking confidentiality be warranted. Even if breaking confidentiality is legally and ethically warranted, the counselor would still be morally obliged to disclose their intent to disclose to the client in order to avoid legal ramifications or censure.
The same would be true if a client expressed intent to cause harm to another person; the counselor must maintain confidentiality unless it was earnestly believed that the client was capable of taking action. Counselors are not omniscient, though. A counselor can never be sure that a client is not serious when expressing rage or aggression towards another person and so ethical and legal dilemmas regarding the maintenance of confidentiality frequently plague counselors. Resolving this ethical dilemma is never easy. The counselor risks liability for failing to alert the authorities if some harm were to befall someone, and also risks litigation if the information were disclosed but the client never took action.
Counselors also need to be careful when discussing their cases with colleagues. Even when a client is seeing other therapists or healthcare workers, confidentiality remains an ethical and legal obligation. However, information sharing may become critical for treatment in some clinical settings. To resolve this ethical dilemma, the counselor should consult the codes of ethics of the mental health organization and ask the client for permission to disclose information that may help improve treatment outcomes.
Inappropriate Relationships and Role Clarity
Another common ethical and legal dilemma counselors face is related to the maintenance of professional boundaries. One of the most common reasons why clients sue counselors is harassment or wanted sexual advances. According to the American Counseling Association, counselors must wait at least five years after terminating the therapeutic relationship before engaging in intimate relationships with a former client or even a former client’s family member (“Ethical and Legal Issues in Counseling,” n.d.). Even if the counselor believes that the relationship is consensual, the law and professional ethical codes are clear on this matter: counselors must refrain from crossing their boundaries.
Counselors cannot enter into a therapeutic relationship with a former or current intimate partner or family member for different reasons. In this case, the counselor would be likely to be biased or have poor professional judgment related to a client that is a friend, family member, or intimate partner. The counselor should refer the individual to a colleague rather than agree to treat the person, even if the client insists that the counselor is the only person who understands him or her. No matter how reluctant the client may be to see a different counselor, maintaining professional boundaries maintains the integrity of the profession and prevents any legal problems, too.
A counselor may in some situations receive small gifts from clients such as birthday cards or chocolates, but never any inappropriate gifts that would cross the ethical or legal boundaries of the profession (Dowd, 2018). The counselor has discretion in these matters. If a counselor is invited to a client’s wedding, for example, it would present a clear ethical dilemma. The counselor risks hurting the client by not attending but also risks professional impropriety by crossing an important line demarking professional distance. It is usually best to refrain from engaging in any personal interaction with clients, to avoid even the appearance of impropriety. As Dowd (2018) points out, though, counselors working in small towns and rural areas may find that their role in the community is more ambiguous than it would be for counselors working in more populated areas. Counselors in small towns and rural communities may find that they inevitably form personal relationships with clients who also happen to be neighbors, members of the same clubs, or parents of children who attend the same schools. To resolve possible legal or ethical conflicts in small towns, counselors may want to refer clients to online counselors. However, online counseling presents its own set of ethical and legal dilemmas.
Dilemmas Associated with Online Counseling
Online counseling has become more common and is bound to become even more so. The benefits of online counseling include making mental health services more affordable and accessible to more people, and expanding the range of therapeutic interventions available to any given client. For instance, a client seeking a particular type of therapeutic intervention like cognitive-behavioral therapy (CBT) may not be able to find a licensed CBT therapist in their area. Online counseling offers an attractive alternative to driving out of the way to see a licensed CBT practitioner.
The same ethical and legal rules apply to online therapy as to face-to-face counseling relationships (Zack, 2011). Privacy and confidentiality must be maintained, and so too must the boundaries of the therapeutic relationship. Legal dilemmas may arise related to professional licensure, however, given that practitioners could be located in a different state or even a different country from the client. The laws governing the therapeutic relationship may vary from state to state and certainly do from country to country.
Another possible dilemma when working with clients in an online counseling relationship is the ability to acquire informed consent. There is no sure way to provide or receive informed consent online. Online counseling also makes it more challenging to maintain client privacy and confidentiality. Counselors need to take care to safeguard all client digital data and to advise clients as to how they can also protect their privacy and confidentiality by reducing the digital footprint, using a VPN, and avoiding the discussion of issues on social media.
Competency
Counselors have a legal obligation—as well as an ethical one—to maintain their credentials and licensure. Moreover, counselors are ethically and legally obliged to represent themselves in accordance with their training and certification. It is not just unethical to misrepresent oneself to clients, but also illegal. Counselors are “ethically bound to counsel and conduct research only in areas within the bounds of their competency, credentials and level of education,” (Dowd, 2018, p. 1). For example, a counselor cannot claim to be competent in providing services for a person diagnosed with bipolar disorder without actually having the appropriate training and may not recommend treatment interventions without having the appropriate background knowledge in that area. To resolve related ethical dilemmas, the counselor only need refer the client to a colleague who is competent in that subject area. Counselors are also responsible for being aware of the laws relevant to the state in which they practice, and to practice only with the proper license and/or certification required in their area of specialization as well as their geographic practice region.
Cultural Competency
Counselors will be working with a diverse client base. Therefore, counselors “must be appropriately trained to understand how factors such as race, cultural beliefs, gender identity, disability and national origin influence a client's needs and desired treatment goals,” (Dowd, 2018). If a counselor’s biases impact ability to provide competent treatment, then the professional is both legally and ethically obliged to refer the client to an appropriate colleague. A counselor is ethically responsible for cultivating the level of self-awareness required to recognize personal bias or lack of understanding of client needs, and should also have the corresponding level of humility needed to refer the client to someone who can provide better professional care. Counselors need a high degree of “ethical sensitivity” and the ability to clearly and constructively analyze each ethical dilemma to resolve it appropriately and professionally (Akers, 2018).
Use of Psychometric Assessments and Diagnostics
Counselors often rely on standardized assessments and diagnostic procedures. These assessments and diagnostic procedures must be administered competently and used with care. Some assessments can only be administered by counselors with specialized training, and no counselor should administer an assessment for which they are not fully trained. A counselor could encounter an ethical dilemma when administering the wrong psychometric assessment, or one that is inappropriate for the client’s demographic or for the client’s presenting problems. In fact, one of the most common reasons for litigation against counselors is inappropriate diagnoses (“Ethical and Legal Issues in Counseling,” n.d.).
Interpreting assessment results is also an area of practice that can raise ethical dilemmas. The results of psychometric evaluations can be used for critical life decisions including employment or education. Therefore, the counselor faces ethical dilemmas when reporting the results of any assessment to a school or to an employer. To resolve an ethical dilemma related to psychometric assessments, the counselor must receive informed consent: alerting the client as to the ramifications and limitations of that particular assessment. 
Financial Need and Access to Care
An important ethical dilemma in the counseling profession is related to the client’s ability to pay for needed services, and to the accessibility of mental health treatment. In many situations, a client’s insurance may not cover counseling and the client may not be able to afford the service fees associated with mental health care. In these situations, the counselor faces an unfortunate dilemma. To refuse treatment to an individual who needs it could represent a form of maleficence if the counselor does not offer the client suitable alternatives such as low-cost or free options or even bartering when appropriate (ACA, 2014). 
Dual Relationships
Counselors often work in collaboration with other mental health professionals or healthcare professionals like physicians. For example, some counselors will treat an individual who is simultaneously in marital or family counseling, or will be treating a child who is also seeing a school counselor. In these situations, the counselor must take great care to avoid breaches of confidentiality while still maintaining continuity of care across the healthcare spectrum.
Conclusion
Although counseling remains one of the most rewarding professions, it is also a highly sensitive one. Clients confide in their counselors. The level to which a client trusts a counselor is parallel to the benefit received from treatment. Therefore, counselors need to ensure that clients continue to trust not just individual therapists but also the counseling profession as a whole.