Landmark Legal Cases Implications for the Counseling Field

Landmark Legal Cases, Informed Consent:

Implications for the Counseling Field

Many seek counseling each year and do not understand what services are offered, or even that the counselor they see is required by law to maintain the confidentiality of the conversation that the two of them are going to have. These issues have been clouding in the past and have led to many court cases that have helped counselors in every state outline exactly what is required of the document. The American Counseling Association (ACA), and the associations of the different states, have specific ethical guidelines which require members to provide new clients with an informed consent document to sign. State and federal legal cases have shown the need for a document which spells out what the counseling services of a particular practice are, what confidentiality is, and oftentimes how the counseling services will be paid (Walsh & Dasenbrook, 2005).

The American Counseling Association recently updated its code of ethics which includes a section (A.2) which outlines informed consent. Counselors must:

"inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor's qualifications, credentials, and relevant experience; continuation of services upon the incapacitation or death of a counselor; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements. Clients have the right to confidentiality and to be provided with an explanation of its limitations (including how supervisors and/or treatment team professionals are involved); to obtain clear information about their records; to participate in the ongoing counseling plans; and to refuse any services or modality change and to be advised of the consequences of such refusal" (ACA, 2005).

This is a comprehensive listing of the counselor's duties as required by an ethical practitioner, but also outlined due to the precedent of law.

Counseling law follows medical law and most of the cases that have to do with informed consent have been brought against doctors. One such landmark case was that of Canterbury v. Spence (1972). In this case, Dr. Spence operated on Mr. Canterbury who was 19 years old at the time. The patient needed was in Washington, D.C., but, being considered a minor at the time of the incident, he needed to have the consent of his mother to have the operation performed. The plaintiffs in the case said that the doctor was negligent because he did not fully explain the dangers of the operation to either the mother or the son. The district court said that the doctor did inform the clients, but upon appeal the doctor was found to have been negligent in his discussion of the dangers of the operation (Wilder, 2000).

This decision was landmark because it determined exactly what must be explained to anyone before they enter into a course of treatment. This case laid the groundwork for informed consent as it is seen presently. A client needs to understand what is entailed in a treatment process, so that they can either accept the conditions or reject them. That is why a counseling professional is required, by the ethical guidelines of the ACA, to disclose payment arrangements, course of treatment and credentials. The client has the right to know everything about the proposed treatment.

This case relates to the formation of informed consent requirements in all manner of helping professions, their ethical guidelines and to state association guidelines. In Hawaii, counseling is in its infancy and therefore follows the guidelines directed by other health profession's ethical guidelines. While there have been few cases in Hawaii that dictate guidance for the use of informed consent material, laws have kept pace with those in the contiguous United States. Hawaii Statute 671 details the use of informed consent for patients (Bussey, 1995). This statute governs all medical professionals, but it is specific to doctors in language.

The language in the Hawaii law requires that medical professionals follow the same guidelines for informed consent that are laid down by the ACA. Informed consent must disclose: