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The Counselor and the Law: A Guide to Legal and Ethical Practice, 7th Edition



The Counselor and the Law: A Guide to Legal and Ethical Practice, 7th Edition

Anne Marie Wheeler, Burt Bertram

ISBN: 978-1-119-02680-8 January 2015 354 Pages


Each chapter in The Counselor and the Law has been updated to reflect changes in the 2014 ACA Code of Ethics, findings of recent court cases, and new federal and state legislation. Attorney Nancy Wheeler and Burt Bertram, a private practitioner and counselor educator, provide a comprehensive overview of the law as it pertains to counseling practice; an in-depth look at counselors’ legal and ethical responsibilities; and an array of risk management strategies.

This edition contains a thoroughly updated chapter on distance counseling, technology, and social media; regulatory updates to the HIPAA and the HITECH Act; and recent case law developments regarding legal risks for counselor educators. The issues surrounding civil malpractice liability, licensure board complaints, confidentiality, duty to warn, suicide and threats of harm to self, professional boundaries, records and documentation, and managing a counseling practice are also addressed in detail.

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Preface ix

About the Authors xi

Chapter 1 The Counseling Profession 1

Our Perspective 1

The Counselor 3

The Law 5

Licensing Standards for Counselors 7

Efforts Toward National Standards and Definitions 16

Summary 21

Chapter 2 The Counseling Relationship 23

Who is a Client? 24

Duty and Standard of Care 25

Informed Consent for Treatment 27

Fees 32

Terminating the Counseling Relationship 35

Summary 41

Chapter 3 Overview of Law and Ethics 43

The American Legal Structure 43

Criminal, Civil, and Administrative Law 44

The Court System 45

Ethics Standards 47

Legal and Ethical Decision-Making Model 51

Ethics and the Law 56

Summary 57

Chapter 4 Civil Malpractice Liability, Licensure Board Complaints, and Criminal Actions 59

Competence and Preparation 59

Duty of Care and Potential Malpractice and Liability 61

Common Complaints Against Counselors 65

Other Civil Actions 86

Other Criminal Actions 98

Summary 101

Chapter 5 Confi dentiality, Privilege, and HIPAA Privacy 103

Confi dentiality 103

Privileged Communication 104

Privacy and HIPAA 107

HITECH Changes to HIPAA 111

Specific Concerns Regarding Confi dentiality, Privilege, and Privacy 117

Summary 130

Chapter 6 Duties to Report, Warn, and/or Protect 131

Duty to Report 131

Duty to Warn and/or Protect 134

Practical Risk Management Guidelines 145

Chapter 7 Communication Technology and Social Media 149

Distance Counseling 150

Social Media: Think Before You "Tweet," "Friend," or "Blog" 154

Texting, Instant Messaging, and E-Mail 157

Other Technologies 161

Recommendations 162

Chapter 8 Suicide and Threats of Harm to Self 167

Prevalence of Suicide and Threats of Harm to Self 168

Suicide and Ethics 172

Legal Issues of Suicide 173

Bullying and Cyberbullying 178

End-of-Life Issues 181

Summary 182

Chapter 9 Professional Boundaries 183

Counselor–Client Interactions or Relationships 184

Licensing Board Complaints and

Selected State Disciplinary Action 191

Risk of Malpractice Lawsuits 196

Mishandling of Transference 197

Risk of Criminal Prosecution 200

When Is a Dual Relationship Appropriate? 201

Summary 202

Chapter 10 Records and Documentation 203

Records: The Standard of Care 203

Purpose of Client Records 209

Ownership of Records 216

Alteration of Records 216

Financial Records and Financial Relationship 217

Technology, Client Records, and Information 217

Record Retention 218

Records Custodian 219

Summary 220

Chapter 11 Managing Your Counseling Practice 221

Opening a Counseling Practice: Forms of Operation 222

Private and Nonprofi t Business Procedures 227

Federal and State Taxes, Reporting, and Licensing 227

Professional Liability Insurance 228

Other Insurance Coverage 231

Employment Law Considerations 234

Training and Supervising Employees 240

Hiring Workers as Independent Contractors or as Employees 242

Fee Splitting and Fraud and Abuse Laws 243

Billing and Collection Practices 245

Third-Party Payments 246

The Americans With Disabilities Act 248

Genetic Information Nondiscrimination Act of 2008 252

New Counseling Approaches, Techniques, and Professional Expressions 253

Closing a Counseling Practice 255

Summary 258

Chapter 12 Counselor Educators and Clinical Supervisors 259

Counselor Educators 259

Clinical Supervisors 265

Summary 271

References 273

Appendix A ACA Code of Ethics 287

Appendix B Top Ten Risk Management Strategies 329

Appendix C How to Access Laws and

Find an Attorney 333

Index 335 See more American Counseling Association titles!