Ethical and Legal Dilemmas in Counseling Practice

Introduction

The counseling profession is governed by a set of ethical standards similar to those used in healthcare more broadly. 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 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 referring to the ethical codes of prevailing professional organizations like the American Counseling Association or the American Psychological Association. Unfortunately, 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 as well, which is why counselors always need to keep confidentiality in mind when working with sensitive populations. Clients have the right to sue counselors who breach confidentiality. Counselors could inadvertently breach confidentiality by, for example, neglecting to safeguard client records. For this reason, counselors need to protect client data whether it is stored digitally or in printed formats.

The rationale 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 believed 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 when the client is at risk of self-harm or of 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 and protecting the person's confidentiality. Breaking confidentiality would be warranted only if the counselor has concrete reasons to believe the client could or would act on their suicidal ideations. Even when breaking confidentiality is legally and ethically warranted, the counselor is still morally obliged to disclose their intent to the client in order to avoid legal ramifications or professional censure.

The same principle applies if a client expresses intent to harm another person: the counselor must maintain confidentiality unless there is a genuine belief that the client is capable of taking action. Counselors are not omniscient, however. A counselor can never be certain that a client is not serious when expressing rage or aggression toward another person, and so ethical and legal dilemmas regarding the maintenance of confidentiality frequently arise. Resolving this dilemma is never easy. The counselor risks liability for failing to alert the authorities if harm were to befall someone, and also risks litigation if information is 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 relevant code of ethics 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 clients sue counselors is harassment or unwanted 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 such a relationship is consensual, the law and professional ethical codes are clear: counselors must refrain from crossing their professional boundaries.

Counselors also cannot enter into a therapeutic relationship with a current or former intimate partner or family member. In such cases, the counselor would likely be biased or exercise poor professional judgment with respect to a client who is a friend, family member, or intimate partner. The counselor should refer that individual to a colleague rather than agree to provide treatment, even if the client insists that the counselor is the only person who truly understands them. Regardless of how reluctant the client may be to see a different counselor, maintaining professional boundaries preserves the integrity of the profession and prevents legal problems as well.

A counselor may in some situations receive small gifts from clients—such as birthday cards or chocolates—but should never accept 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, a clear ethical dilemma arises: declining risks hurting the client, while attending risks professional impropriety by crossing an important boundary of professional distance. It is generally best to refrain from any personal interaction with clients, so as to avoid even the appearance of impropriety.

As Dowd (2018) points out, 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 practicing in more populated areas. In rural communities, counselors may inevitably form personal relationships with clients who are also 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 consider referring clients to online counselors. However, online counseling presents its own set of ethical and legal dilemmas.

Conclusion

Although counseling remains one of the most rewarding professions, it is also a highly sensitive one. Clients confide in their counselors, and the degree to which a client trusts their counselor is directly related to the benefit they receive from treatment. Therefore, counselors need to ensure that clients continue to trust not just individual therapists but also the counseling profession as a whole. Awareness of common ethical and legal dilemmas—and familiarity with principled strategies for resolving them—is essential to upholding that trust and protecting both clients and practitioners alike.