Ethical and Legal Dilemmas in Counseling Practice

Introduction

According to Dictionary.com, counseling refers to "professional guidance in resolving personal conflicts and emotional problems." A wide range of people serve as counselors in their professional capacity, from psychologists and psychiatrists to attorneys, clergy, crisis counselors, and social workers. While each of these professionals may rely on a slightly different set of professional ethical rules and guidelines to govern their counselor-client relationships, all of them must be prepared to deal with potential ethical and legal dilemmas that can arise from the counseling relationship. Most of these dilemmas focus on the counselor's role as helper to the client, and are designed to ensure that the counseling relationship is always guided by the client's interests. However, in some circumstances a counselor's legal and ethical obligations may actually require the professional to engage in behaviors that could result in harm to the client.

Because they are situationally specific, determining legal and ethical guidelines for counselors can be extremely complex, requiring professionals to seek guidance from others in their field when confronted with particularly difficult dilemmas. When broken down to their most basic precepts, however, the legal and ethical obligations of counseling require a counselor to work to further a client's best interests — except in very specific situations where helping a client achieve their goals could create a lasting harm for a third party.

Types of Counselors and Their Governing Bodies

Counseling is a very broad term that can encompass a wide range of different relationships between professionals and clients. In fact, in many places, one need not even be a professional to qualify as a counselor. For example, in many states clergy can play the role of counselor even without any formal training. In some states, crisis or emergency counselors can receive training and be permitted to provide counseling specific to an emergency scenario; rape crisis counselors and suicide hotline counselors are often lay people with no professional counseling training or experience. Attorneys are also often referred to as counselors, because they are expected to give their clients professional counsel and advice. However, there are five professions that generally come to mind when one hears the term "counselor": psychiatrists, psychologists, counselors, social workers, and advanced psychiatric nurses (Cherry, 2019). Each group has a different set of training and qualifications, and, more importantly, each is governed by a different professional body — meaning that their professional ethical guidelines, and in some instances their legal obligations, may differ.

When many people think of mental health professionals, they think of psychiatrists. Psychiatrists are medical doctors who have focused their practice on psychiatric care. They can diagnose and treat mental illness and, as medical doctors, can also prescribe medications — a key distinction that sets them apart from most counselors. While psychiatrists can provide counseling as part of their treatment services, most modern psychiatrists do not work primarily as counselors; instead, they either work as part of a treatment team or refer patients who need ongoing counseling to other providers. As medical professionals, psychiatrists fall under the auspices of the American Medical Association.

Although often confused with psychiatrists, psychologists are not medical doctors. These professionals hold non-medical doctorate degrees (a PhD or PsyD) and have received training focused specifically on psychology and mental health. Most states require newly licensed psychologists to begin their careers under supervised practice. Psychologists provide both group and individual therapy; in most states they cannot prescribe medication, though they often collaborate with psychiatrists and other physicians when a patient requires medication as part of a treatment regimen. The professional organization for psychologists is the American Psychological Association (APA).

Licensed counselors form a varied group of professionals who are not psychiatrists or psychologists but who have typically obtained additional graduate-level training in counseling. Licensing requirements vary from state to state; however, the National Board for Certified Counselors (NBCC) can grant the title of National Certified Counselor, and many states require this certification for licensure.

One of the largest groups of practicing counselors in the United States consists of licensed clinical social workers (LCSWs). These professionals have some form of post-graduate training in therapy — which may or may not include a Master's degree in social work — as well as internship or supervised clinical experience. The National Association for Social Workers and the Association for Social Work Boards are two major professional groups for social workers, though states differ in their specific licensing requirements.

Advanced psychiatric nurses are another group of healthcare professionals who may provide counseling services. These nurses hold Master's degrees or higher in nursing, with an emphasis on psychiatric nursing and mental health. They function, more or less, as nurse practitioners serving the same functions as psychiatrists: they can assess and diagnose disorders, provide therapy, and in most states prescribe medications, though states vary considerably in how they recognize nurse practitioners as independent care providers. The American Psychiatric Nurses Association is one of the primary professional organizations for this group.

Legal Obligations of Counselors

Determining a counselor's legal responsibilities can be very difficult, because each state has its own rules and laws governing what counseling behavior is legal or illegal. These rules may not all be located in the same part of a state's legal code — health and safety regulations, professional licensing regulations, family codes, and even criminal codes may all dictate a counselor's legal obligations. Each of these different laws creates different obligations depending on a number of factors, including where the therapist and client are located.

While some of these details may seem like minutiae, they can have a profound impact on clients. For example, homosexuality was once classified as a mental disorder, and conversion therapy for minors identifying as lesbian or gay was somewhat commonplace. Research has revealed that this type of therapy is very harmful to children; as a result, 18 states, Puerto Rico, and the District of Columbia have banned conversion therapy for minors, though it remains legal in 32 states and 4 U.S. territories (Movement Advancement Project, 2019). This example illustrates how the location of the counselor and client can determine what behavior is legally permissible in their relationship, and how evolving societal values can reshape the legal obligations of counselors. It also highlights why blanket statements about those obligations are so difficult to make.

Examining one state's legal guidelines offers some practical insight. Texas's ethical guidelines for counselors are contained in Part 30 of Title 22 of the Texas Administrative Code §§ 681.41–681.51. Under these rules, licensed counselors are prohibited from making false claims about their services; must obtain informed consent from their clients; cannot pay for referrals; cannot engage in sexual relationships with clients or certain other individuals during or for a specified period after the therapeutic relationship; cannot engage in activities for personal gain at the client's expense; must set professional boundaries; must not give or accept gifts from clients; cannot counsel people with whom the counselor has a prior personal relationship; must keep accurate records; and may breach confidentiality to prevent a client from harming himself or others. While these rules are specific to Texas, they are representative of the types of legal obligations counselors face across the United States.

Conclusion

With all of the different types of counseling available, and each state or territory having its own laws regarding counseling, it is impossible to create a single comprehensive list of legal and ethical rules governing the profession. However, it is clear that ethical and legal dilemmas are most likely to arise when a counselor's personal interests or beliefs conflict with a client's personal interests, or when a counselor's legal obligations conflict with a client's best interests. In those scenarios, it can be difficult even for the most well-intentioned mental health professional to determine the right course of action.