The Counselor and the Law

A Guide to Legal and Ethical Practice

Anne Marie Wheeler, Burt Bertram

• Publisher: American Counseling Association
• Year: 2019
• ISBN:
  9781119602118
• Edition: 8
• Topic: Pedagogía
• Subtopic: Desarrollo profesional

This eighth edition provides a current and comprehensive discussion of counselors' legal and ethical responsibilities, an examination of state and federal laws as they relate to practice, and helpful risk management strategies. Attorney Nancy Wheeler and Burt Bertram, a private practitioner and counselor educator, offer real-world practical tips to help navigate professional risks while providing competent clinical care. New or updated topics include matters surrounding informed consent, current case law on duty to warn/protect and issues surrounding suicide in college/university settings, electronic records and ransomware concerns, and updates on state licensure board data regarding boundary violations. The authors' legal and ethical decision-making model will assist counselors and students with processing their own legal and ethical dilemmas, and the ACA Code of Ethics is included as a handy reference.

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Chapter 1
Overview of Law, Ethics, and Professionalism

Virtually every aspect of American society is affected by the law. Counselors and other health professionals are subject to a variety of legal and ethical considerations governing their professional practices. It is important that counselors understand the basic concepts of the legal system and the general body of law affecting professional practice. It is also vital that counselors appreciate the impact of professional ethics standards and the subtle but important influence of the counselor’s professionalism. Remaining attentive to these three factors—law, ethics, and professionalism—can help a counselor successfully address problems that may arise in practice.

Legal mandates should be distinguished from ethics codes, which are developed by the profession to guide professional practice. This chapter is designed to help counselors understand and appreciate the differences, similarities, and relationships among the law, ethics, and professional behavior.

The American Legal Structure

The American legal system as we know it today evolved from the common-law system of England. Unlike codified written laws, the common law was derived from court decisions, which reflected the customs and values of the time. Americans are also governed by the U.S. Constitution, which established our tripartite form of government (legislative, executive, and judicial branches) to initiate, administer, and enforce laws passed by the U.S. Congress (federal laws). Individual states also have legal systems with legislative, executive, and judicial branches similar to those of the federal government.

Within this structure are laws governing our society that originate from two sources: laws (sometimes called statutes) passed by governmental bodies such as Congress or state legislatures; and rules of law made by the courts in interpreting the Constitution, federal and state law, and the existing common law. Law made by courts, sometimes called judge-made law, takes into account the relevant facts of each particular case, the applicable statutes and administrative regulations governing the situation, and decisions from other court cases (called precedents) that might bear on the facts of the case before the court. This all-inclusive approach to interpreting individual cases results in an ever-evolving body of law, within the overall framework of the Constitution, that reflects the changing character of our society.

In appropriate cases, courts also consider standards of conduct relevant to a particular profession. Taking the customary conduct of similarly situated professionals into account when interpreting the particular facts of a case has been an important safeguard for both the public and the affected professionals in many cases. The practice of counseling as well as other mental health professions has been shaped by this activity. Throughout this book, we highlight several important cases that have served to shape the counseling profession.

This all boils down to a simple but powerful fact: Our body of laws is dynamic and ever changing. It is not possible to predict accurately the result of any particular case that might be presented in the future, but rules of law guide the analysis of situations that may develop. It is those rules of law that we attempt to present in the remaining chapters, along with practical suggestions for incorporating the law into one’s counseling practice.

Criminal, Civil, and Administrative Law

There are two major types of law: criminal law and civil law. Criminal (penal) law includes acts that are prosecuted by the government, not by private individuals. These crimes are punishable by fine, imprisonment, or death and include offenses such as murder, rape, burglary, robbery, and assault with a deadly weapon. Individuals can also be prosecuted for aiding and abetting someone who has committed such crimes or for failing to notify proper authorities in some situations when they have knowledge of such crimes (e.g., in cases of child abuse if the state statute imposes a criminal duty for failure to report).

Civil law generally includes everything that is not criminal in nature concerning the civil rights of individuals or other bodies. Some of these civil wrongs, called torts, are wrongful actions taken by one private person against another (other than breach of contract). Intentional torts include battery, defamation, and invasion of privacy. Unintentional torts include negligence, which is the basis of most malpractice suits against professionals, including counselors. Other types of action that are governed by civil law include contract and property disputes. Violations of civil laws are enforced by private persons bringing suit against the violators in a court of law. The sanctions awarded to successful plaintiffs are usually in the form of monetary damages to compensate the plaintiff for his or her loss.

Beyond civil and criminal law, administrative law has assumed new prominence for counselors and other mental health professionals in recent years. Administrative law is created (usually by a process of rulemaking) by government administrative agencies charged with the task of developing regulations to help define the laws, or statutes, that are passed by Congress or a state legislative body. For example, pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), the HIPAA Privacy Rule was promulgated by the U.S. Department of Health and Human Services. Subsequent rulemaking activity has continued to hone HIPAA more than 2 decades after the initial enactment of the statute and regulations, making the law relevant to an increasingly electronic world.

The Court System

Our court system is composed of both federal and state courts. Trial courts are the original venues for resolving disputes; the facts of particular cases are explored at this level and appropriate law is applied. Many cases are settled before or during the trial stage. As explained in the following sections, few cases are appealed to a higher court.

Federal Courts

Federal courts were created by Article III, Section 2, of the U.S. Constitution and have the power to hear cases “arising under this Constitution” and the laws of the United States. Federal law provides for several situations in which cases may be brought in federal courts. One is when the case arises under the laws of the United States or presents a question of federal law (federal question jurisdiction; 28 U.S.C. § 1331, 2017). Another is when the case involves citizens of different states and the amount in controversy exceeds $75,000 (diversity jurisdiction; 28 U.S.C. § 1332, 2017). Potential litigants may have the option to bring their claims in either state or federal court if the jurisdictional requirements of the federal system can be met.

State Courts

Most state courts are patterned after the federal system, with trial courts, a middle-level appellate court, and a top-level appellate court (often called a supreme court) as the final arbiter of decisions involving state and federal laws that affect the residents of the state. The names of these courts may vary from state to state, but their function is essentially the same. They can hear both civil and criminal cases arising under either state or federal laws, and their decisions are binding on the residents of the state unless overturned by a higher court within the state or by a federal court.

Appellate Process

In both the state and federal court systems, cases originate in the trial court (called the Federal District Court in the federal system). Both parties put on (try) their case at this level, witnesses are heard, evidence is taken, the relevant law is applied to the facts, and a decision is rendered either by a judge or by a jury. The judge then assigns the appropriate remedies to the parties.

Parties may have the right to appeal decisions of the trial or district court to the intermediate-level appeals court. In the federal system, these 13 courts are called the U.S. Circuit Courts of Appeals. Their function is to review how the law was applied to the facts of each particular case and to determine whether the trial court made any errors in its decision; if so, the case should be overturned, reversed, or sent back to the trial court for additional findings of fact. State appeals courts generally operate in a similar manner.

The losing party can request that his or her case be heard at the third and final level: either the highest court in the state system or, in the federal system, the U.S. Supreme Court. In addition, parties who have had cases decided by the highest court of a state may move to the U.S. Supreme Court through the process known as a petition for certiorari, or asking the Court to hear the case. The nine justices of the Supreme Court then vote to decide whether to hear the case; if at least four justices agree, the Court will issue a writ of certiorari asking that the case be forwarded to the Supreme Court. Cases accepted by the Supreme Court generally involve issues of federal law in which decisions of circuit courts on similar issues conflict with one another. Very few cases actually end up in the U.S. Supreme Court.

Ethics Standards

At some level, nearly every human being has developed his or her own set of beliefs about what is good and what is bad. This results in the adoption of our morals and values, which may be viewed as our personal code of conduct. Our personal morals and values are influenced by our family-of-origin values, religious moral education, formal civics instruction, and informal observation of the behavior and interaction of important individuals and groups as well as the personal conclusions reached from the lessons of life.

Ethical behavior is not just something nice—it is critical to our survival as a society. Think of the impact on individuals and our society of the economic turbulence of the early 2000s, which was caused at least in part by the actions of financial professionals who, one by one, engaged in behavior that placed personal short-term financial gain ahead of the overall well-being of the nation’s economy. Our culture is awash in recent examples of financial moral and ethics travesties, including sales incentive pressures at Wells Fargo Bank that led to the opening of an estimated 3.5 million customer accounts without the permission or knowledge of the customer, some of which cost customers money or negatively affected their credit. Bernard Madoff’s Ponzi scheme is another notorious example of thousands of individual and institutional investors being deceived and destroyed financially. There are also very public breaches of moral and ethics standards that involve high-profile individuals who demonstrated serious lapses in moral and ethical behavior, each of which serves as a cautionary tale in our culture.

There are many more private and personal examples of ethical failure that never garner media attention. As we step away from looking at the public examples, we invite you to reflect on your own experience with moral or ethical dilemmas—the times you adhered to your standards and the times you failed. Most ethical decisions are in the moment and very private. This leads to an inescapable conclusion: No matter how many laws we pass or codes of ethical conduct we develop, everything comes down to a private decision. There are no ethics police patrolling our thoughts and monitoring our personal or professional behavior. Ethicist Rushmore Kidder (1995) suggested that ethics can be defined as “obedience to t...