This paper examines the legal and ethical implications that counselors across various treatment settings must navigate in professional practice. Drawing on peer-reviewed literature, it explores how professional codes of ethics—from organizations such as the American Counseling Association and the American Psychological Association—define appropriate conduct and protect client welfare. The paper addresses emerging challenges including the ethics of online counseling, the growing importance of multicultural competence, and the legal dimensions of confidentiality and privileged communication. It also presents practical frameworks such as an ethical intent checklist for online services and a multicultural ethical decision-making model to guide practitioners confronting complex cross-cultural dilemmas.
Although counselors work in a wide range of treatment settings — including healthcare institutions, organizations of all types and sizes in both the private and public sectors, and even academia — they share certain commonalities when it comes to the legal and ethical implications of the counseling services they provide. The problems that individuals present with for counseling services range the entire gamut of the human condition, but no matter what issues are involved, it is important for counselors in any treatment venue to recognize the legal and ethical implications associated with the services they provide. To this end, this paper reviews relevant peer-reviewed and scholarly literature concerning the legal and ethical implications of counseling, identifies some of the more important issues involved, and provides a summary of the research in the conclusion.
In the delivery of professional counseling services, many of the identical functions of the counselor may have both legal and ethical implications. However, while something may be legal, it may not be ethical, and vice versa — as in the case of treating patients who present with suicidal ideation (Francis, 2003). For discussion purposes, these issues are reviewed separately below.
Whatever their treatment venue and area of specialization, counselors of all types are obligated to deliver their services in a manner congruent with the ethical codes and standards established by their respective professions (Pack-Brown, Thomas & Seymour, 2008). In any analysis of the ethical implications involved in counseling, it is essential to determine the various ways in which ethical practice has been defined and the impact that cultural factors have on the development of codes of ethics for counseling professionals (Pack-Brown et al., 2008). According to Pack-Brown and her colleagues, "Although some persons define ethics from a theoretical and moral stance, others emphasize the practical, professional meaning of the term. Philosophical ethics relates to theoretical and moral consideration of what is thought to be 'good,' 'right,' or 'worthy' actions in different situations" (2008, p. 296). The term "professional ethics," when applied to the counseling profession, is typically used to refer to a group of rules, principles, and standards that have widespread acceptance and that are used to define appropriate conduct and acceptable practices (Pack-Brown et al., 2008).
Generally, such ethical codes also contain the core values of the area of specialization involved. For instance, the ethical codes of the American Psychological Association, the American Counseling Association, and the National Association of Social Workers all contain guiding standards for ethical professional practices intended to reflect the core values of the professions involved (Pack-Brown et al., 2008). According to these authors, "These ethical values and pragmatic standards highlight the importance of operating in ways that respect the dignity and worth of the persons served by counselors, psychologists, and social workers" (Pack-Brown et al., p. 297). As an example, Pack-Brown and her associates cite the preamble to the ethical code of the American Counseling Association, which states that it is the ethical responsibility of members to seek to:
1. Enhance human growth;
2. Recognize and respect the diversity of their clients; and,
3. Embrace culturally appropriate strategies that honor the dignity and uniqueness of the persons they serve.
Likewise, the American Psychological Association's code of ethical conduct emphasizes the need for its members to:
1. Be impartial and just when providing psychological services to persons in diverse groups;
2. Allow all persons equal access to available services; and,
3. Ensure that personal biases, boundaries of competence, and limitations of expertise do not result in unfair or improper professional practices (Pack-Brown et al., 2008, p. 297).
The professional codes of ethics for those working in counseling have experienced changes over the years, and they will undoubtedly continue to be revised to reflect shifts in the population, best practices based on empirical evidence, and the changing needs of the populations being served. One area of professional counseling that is becoming increasingly popular — yet has not been the focus of a great deal of research — is online counseling. It is clear that online counseling will demand critical assessments concerning the ethical issues involved both today and in the future. Shaw and Shaw (2006) emphasize that almost 85 million Americans are already using the Internet to search for counseling services, a trend that must be taken into account in the development of ethical codes of conduct for the counseling profession. These authors note that, "Since the arrival of online counseling, the practices and ethics of the counseling profession are being displayed in a new arena. How the counseling field is presented to the public on the Internet, including its values, practices, and level of professionalism, should be of great concern to all counselors" (Shaw & Shaw, 2006, p. 41). A past president of the American Counseling Association has maintained that online counseling services must be as "ethically sound as all other forms of client service delivery" (Lee, 1998, p. 2). According to Shaw and Shaw, "A solid code of ethics professionalizes an occupation by creating a social contract with the public that balances professional privilege and responsibility with a commitment to the welfare of clients. Each time a new field in counseling arises, this delicate balance is challenged" (p. 41). The Code of Ethics of the American Mental Health Counselors Association also addresses this issue by noting, "Mental health counselors engaged in delivery of services that involves the telephone, teleconferencing and the Internet — in which these areas are generally recognized — standards for preparatory training do not yet exist" (Principle 14, Internet Online Counseling).
Because of the dearth of guidance from various professional associations to date, the American Mental Health Counselors Association emphasizes that it is currently the responsibility of the individual practitioner to ensure that the services being delivered and the website content they provide satisfy their respective professions' ethical standards: "Mental health counselors take responsible steps to ensure the competence of their work and protect patients, clients, students, research participants, and others from harm" (Principle 14, Internet Online Counseling, 2001). To help counselors determine the appropriateness and ethics of their online counseling services and website content, Shaw and Shaw (2006) developed an ethical intent checklist following the guidance contained in the American Counseling Association's (ACA) Code of Ethics, presented in Table 1 below. The 16 items comprising the Ethical Intent Checklist in column one are linked to the relevant ACA standard or standards from which each item was developed in the second column.
Table 1: The Ethical Intent Checklist
Ethical Issue — ACA's Code of Ethics Reference
1. Is the full name of the counselor given? — Confidentiality: b.2., Professional Counselor Identification.
2. Does the site clearly identify the state from which they are operating? — Establishing the Online Counseling Relationship: d., Boundaries of Competence.
3. Are degrees listed? — Confidentiality: b.2., Professional Counselor Identification.
4. Are areas of study and university given for degrees? — Confidentiality: b.2., Professional Counselor Identification.
5. Is the address or phone number of the counselor given for backup purposes? — Establishing the Online Counseling Relationship: c., Continuing Coverage.
6. When requesting client information, does the site require the client's full name and address? — Must be a required field for client to fill in; Confidentiality: b.3., Client Identification.
7. Does the site clearly state that clients must be 18 years or older or have consent of a legal guardian? — Establishing the Online Counseling Relationship: e., Minor or Incompetent Clients.
8. When requesting client information, does the site require the client's age or birth date? — Must be a required field for client to fill in; Establishing the Online Counseling Relationship: e., Minor or Incompetent Clients.
9. Does the site have an intake form that clients must fill out before counseling can begin? — Must be a required field for client to fill in; Establishing the Online Counseling Relationship: a., the Appropriateness of Online Counseling.
10. Does the site have a statement indicating that online counseling is not the same as face-to-face counseling? — Establishing the Online Counseling Relationship: a., the Appropriateness of Online Counseling.
11. Does the site have a statement indicating that not all problems are appropriate for online counseling? — Establishing the Online Counseling Relationship: a., the Appropriateness of Online Counseling.
12. Does the site refer clients to traditional forms of counseling, or provide other suggestions (crisis lines, etc.) for clients who are not deemed appropriate for online counseling? — Establishing the Online Counseling Relationship: b., Counseling Plans.
13. Does the site have a statement indicating that ensuring complete confidentiality over the Internet is not possible? — Confidentiality: a., Privacy Information.
14. Is email secure via a Secure Sockets Layer (SSL) or via encryption software? — Confidentiality: a.1., Privacy Information, Secured Sites.
15. Does the site have a statement about conditions under which confidentiality must be breached for legal reasons? — Confidentiality: a.4., Privacy Information, Limits of Confidentiality.
16. Does the site have a waiver that clients must electronically sign or mail in before beginning counseling that specifically states the limits of ensuring confidentiality over the Internet? — Confidentiality: a.4., Limits of Confidentiality; Confidentiality: c., Client Waiver.
Source: Shaw & Shaw, 2006, p. 42
Other changes that will undoubtedly influence the types of ethical codes of conduct mandated for counselors in the future include the enormous demographic shifts taking place in the United States. Pack-Brown et al. conclude that nowhere is this change more evident than in the need for cross-cultural awareness on the part of counselors today. According to these authorities, "The recent changes in the professional ethics of the American Counseling Association, American Psychological Association, and National Association of Social Workers reflect a growing sensitivity and moral-ethical respectability for the diverse cultural constructions of terms such as mental health and appropriate helping interventions and the meaning of ethical practices" (Pack-Brown et al., p. 297).
"Cross-cultural awareness and multicultural decision models"
"Unique ethical dilemmas in group counseling contexts"
"Confidentiality, privileged communication, and legal duties"
The research showed that professional counselors currently practicing in the United States are expected to follow the ethical codes of conduct developed by their respective professional associations. These codes share a number of commonalities, including the need for informed consent, the requirement for maintaining confidentiality of the counselor-client relationship, and the importance of protecting client information. The research also showed that the introduction of online counseling services and the provision of counseling in an increasingly multicultural society have generated a growing body of research aimed at identifying best practices. The overarching theme that emerged from the literature is the need to avoid applying an ethnocentric view to people from other cultures and to resist the tendency to view others through a worldview that fails to appreciate the important cross-cultural differences that can adversely impact the therapeutic relationship.
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