LEGAL & ETHICAL ISSUES FOR COUNSELING CENTER TRAINING PROGRAMS

1. LEGAL & ETHICAL ISSUES FOR COUNSELING CENTER TRAINING PROGRAMS Gloria C. Saito, Ph.D. University of California, Berkeley

2. Introduction and Overview • Counseling Center settings: agency issues to consider in training unlicensed professionals • Legal and ethical issues for supervisors • Guidelines for ethical decision-making • Case vignettes

3. Definitions: Law and Ethics • Ethical standards are “conceptually broad in nature, few in number and open to interpretation by the practitioner. . . . They are . . . A call to ethical excellence. Ethical standards are a statement from a particular profession to the general public regarding what they stand for.” (Bernard and Goodyear, 1998)

4. Definitions: Law and Ethics • “The law . . . is specific in nature and is introduced when a particular act has been perceived to have endangered or harmed those whom the profession serves. . . . The law is not concerned with the highest standards of professional practice when judging someone, but only in minimally acceptable behavior.” (Bernard and Goodyear, 1998)

5. Agency Issues for Counseling Center Training Programs • Selection Issues • APPIC Match Policies (www.appic.org) • CAPIC Guidelines (www.capic.net) • University personnel and human resources policies • Local, state and federal regulations • Americans with Disabilities Act (ADA) regulations

6. Agency Issues, cont’d • Parameters for Employment and Informed Consent – • Conditions of employment • Requirements for criminal background checks • Stipends, number of hours per week, evaluation process

7. Agency Issues, cont’d • “Truth in Advertising” about the program and training offered. • Is the program designed to provide appropriate training experiences and to meet requirements for academic programs, licensure and/or certification? • Is the description of the program in publicized materials current and accurate, providing information on the training goals and objectives, requirements, stipends, benefits, etc.?

8. Agency Issues, cont’d • Expectation of trainees – clear statement about what is expected of trainees • Competency issues – agency has the duty to assign only those clients whom the trainee is competent to treat • Confidentiality and limits to confidentiality • Written policies and procedures to guide the agency, supervisors and trainees in the management of clients who are dangerous or at risk. • Due process and grievance procedures • Contextual issues: budget and staffing, licensing laws and regulations, agency pressures and the service delivery vs. training balance

9. Supervision Issues • Supervision defined “An interpersonal process that typically involves a more experienced clinician (“master”) with oversight and evaluative responsibility for a less experienced clinician (“apprentice”) who shares educational and therapeutic goals. The educational goal primarily concerns the growth and development of professional competence by the trainee. . . Therapeutically, supervisor and supervisee collaborate to ensure the welfare of the client.” (Holloway, 1992)

10. Supervision Issues • Supervision defined (again) “An intervention that is provided by a senior member of a profession to a junior member of that same profession. This relationship is evaluative, extends over time and has the simultaneous function/purposes of enhancing the function of the junior member, monitoring the quality of professional services offered to clients and serving as a gatekeeper for those who are to enter the profession.” (Bernard and Goodyear, 1998)

11. Legal and Ethical Issues for Supervisors • Getting started: nuts and bolts (Board of Psychology requirements): • Supervisory Agreement form • Supervision Disclosure form • Weekly log of activities • Verification of Experience form

12. Legal and Ethical Issues for Supervisors • Qualifications of supervisors • demonstrated professional training and competence in areas in which supervision is being provided (supervisor must be competent to see a client to whom trainee is assigned.) • formal training in supervision (Board of Psychology regulations) • meet continuing education requirements and have a current license

13. Legal and Ethical Issues for Supervisors, cont’d • Duties and responsibilities of supervisors • Heavy obligation to protect the welfare of the consumer/client • Have sufficient knowledge of each client to monitor the work of the trainee, i.e., client care • Oversight of therapeutic behavior of a less experienced, unlicensed professional whose skills may not be well-known or well-developed • Review and countersign client records

14. Legal and Ethical Issues for Supervisors, cont’d • Duties and responsibilities of supervisors, cont’d • Availability in case of emergencies (be available 100% of the time either on site or by other means) • Keep records of supervision • Obligation to further the professional development of the trainee by focus on skill development as well as professional identity issues • Provide ongoing and timely feedback as well as formal evaluations based on actual performance and established program requirements • Avoid abuses of power in supervision that may potentially result in exploitation or harm

15. Legal and Ethical Issues for Supervisors, cont’d • Duties and responsibilities of supervisors, cont’d • Challenge supervisee about issues that may interfere with quality care while setting appropriate boundaries and limits (supervision is not therapy) • Special responsibility to structure and maintain a supervisory relationship that “demonstrates ethically appropriate behavior and minimizes the potential negative quality of transference issues.” (Upchurch, 1985)

16. Legal and Ethical Issues for Supervisors, cont’d • Informed consent for supervision • Do trainees have a choice of supervisor, and what are the choices? Are trainees aware of how supervisory assignments are made? • Need for clear specification of duties, supervision philosophy/approach, goals, requirements, expectations, evaluation procedures

17. Legal and Ethical Issues for Supervisors, cont’d • Informed consent of clients • Clients must be informed about the trainee’s status and about the supervisor’s oversight of the treatment • Supervisors must be available to clients if necessary • Supervisors must insure that trainees have informed their clients about the parameters of counseling • Clients must give consent for procedures necessary or required for supervision, e.g., audio or videotaping

18. Legal and Ethical Issues for Supervisors, cont’d • Confidentiality • What’s confidential in supervision? • The trainee’s rights to privacy • What about group supervision, supervisors’ meetings, training committee meetings? • Do not require supervisee to disclose personal information about sexual history, history of abuse/neglect, psychotherapy, relationships with family, peers, etc., unless this is specified clearly in program admissions and training materials

19. Legal and Ethical Issues for Supervisors, cont’d • Multiple Relationships • Supervisor is guided by the principle of “DO NO HARM” • Supervisor is in the position of power and trainees have limited power in the relationship • Sexual Relationships between supervisor and supervisee prohibited • Sexual attraction is inevitable and important to discuss • Supervisor’s responsibility to teach trainees how to handle sexual attraction issues

20. Legal and Ethical Issues for Supervisors, cont’d • Multiple Relationships, cont’d • Supervisors should not provide psychotherapy services to supervisees and should avoid conflicts of interest which may impair their judgment • Supervisors avoid dual relationships where there is the potential for abuse of power and/or exploitation • Supervisors avoid actions that may impair their judgment and ability to objectively supervise and evaluate the trainee (e.g., supervising a friend or relative)

21. Legal and Ethical Issues for Supervisors, cont’d • Multiple Relationships, cont’d • Supervisors maintain appropriate boundaries (what about professional lunches, office parties, workshops, conferences?) • Differentiate between multiple relationships that abuse power, exploit or harm the supervisee and those that occur in the positive context of a developing professional relationship • Supervision and therapy and the distinction between them: how to explore personal issues related to client care without crossing privacy boundaries • Conflicting roles inherent in the supervisor role: mentor, supporter, evaluator, colleague, reference

22. Legal and Ethical Issues for Supervisors, cont’d • Due Process Issues • Policies and procedures are provided to the supervisee by the training program and the supervisor in writing at the beginning of the traineeship. These include: • Trainee rights and responsibilities • Expectations, roles, rules, requirements • Procedures and process for feedback and evaluation • Formal guidelines for what happens when a trainee is impaired, including definitions of impairment and processes for notice, warning and appeal, remediation, time frame for notice and appeal • Primary goal is to avoid arbitrary or capricious actions on the part of the training program and the supervisor

23. Legal and Ethical Issues for Supervisors, cont’d • Liability Issues • Malpractice defined: “harm to another individual due to negligence consisting of the breach of a professional duty or standard of care.” (Disney & Stephens, 1994) • The Good News • Why It Pays to Pay Attention • Supervisor is held responsible for supervisee’s actions and quality of client care

24. Legal and Ethical Issues for Supervisors, cont’d • Liability Issues • Direct Liability • Negligent supervision: supervisor’s inattention or negligence caused the client’s damages • Supervisor or training program assigned tasks which the trainee was not adequately trained or prepared to carry out, and the client was harmed

25. Legal and Ethical Issues for Supervisors, cont’d • Liability Issues, cont’d • Vicarious Liability – supervisors can be sued and held liable even if they did nothing wrong under the concept of “respondeat superior” (let the master respond”) • Final responsibility for client welfare rests with the supervisor, not the trainee

26. Legal and Ethical Issues for Supervisors, cont’d • Liability Issues:Vicarious Liability, cont’d • Criteria: • Trainee voluntarily agrees to work under the direction and control of the supervisor • Trainee acts within the scope of tasks permitted by the supervisor • Supervisor has the power to control and direct the supervisee’s work • The act that injured the client is within the supervisee’s scope of employment • Client has the burden to prove that an actual injury occurred

27. Legal and Ethical Issues for Supervisors, cont’d • Areas of Vulnerability for Supervisors (from Campbell, 2000) • Client is not informed of supervisee’s trainee status and the limits of confidentiality • Supervisor has incomplete information about the client due to multiple factors (workload issues, incomplete/inadequate communication, trainee withholds information) • Trainee does not follow supervisor’s recommendations, but does not disclose this

28. To Summarize: Dilemmas for Supervisors • Issues of Hierarchy and Power • Conflicting Roles and Multiple Hats • Negotiating Boundaries • Confidentiality

29. Guidelines for Ethical Decision-Making • Provide current and accurate information about your program • Set standards for training and performance in writing and communicate and discuss these with your trainees • Provide a timely and specific process for providing feedback and evaluation • Develop good record-keeping practices, both for client work and for supervision • Apply standards early and consistently • Base decisions on facts, not opinion or bias, and document behaviors • Document, document, document, but beware of email communication • Seek consultation

30. Guidelines for Ethical Decision-Making, cont’d • Bernard and Goodyear (1998) suggest the following “cognitive map” for resolving ethical dilemmas: • 1. Identify the problem or dilemma • 2. Identify the potential issues involved • 3. Review relevant ethical guidelines • 4. Obtain consultation • 5. Consider possible and probably courses of action • 6. Enumerate the consequences of various decisions • 7. Decide what appears to be the best course of action

31. Case Vignettes • Vignette #1: The client is a 19 year-old Caucasian undergraduate woman with a severe eating disorder (anorexia). The supervisee is a 28 year old Caucasian woman on her predoctoral internship. The intern has had some experience in treating eating disorders and would like to specialize in this area. She has done an assessment of the student’s concerns and in addition to counseling at the University Counseling Center, has referred the student for medical care and follow-up. During supervision, the intern has down-played the severity of the eating disorder, and has assured the supervisor that the student has followed through with medical care. While the intern is on vacation, the student comes into the CC in crisis. It is apparent that she has not in fact followed through with medical care. Moreover, the supervisor reviews the record and, in her assessment, the student is more severely impaired than the intern had indicated. The supervisor decides to involve the student’s parents, and in so doing, breaks confidentiality. What are the legal and ethical issues involved in thiscase?

32. Case Vignettes • Vignette #2 The student is a 22 year old African American male graduate student in Physics who comes into the Counseling Center for an emergency drop-in appointment. The supervisee is a 30 year old Asian American male postdoctoral fellow. In doing the assessment, it is clear to the postdoc fellow that the student is experiencing manic and psychotic symptoms and is potentially suicidal. The postdoc seeks consultation from senior staff members, who strongly advise him to pursue hospitalization for the student. The postdoc feels great empathy for the student who is adamant that he does not want to be in the hospital. As a result, the postdoc is reluctant to hospitalize the student, but finally does so after many hours and numerous consultations with staff. Senior staff are concerned that the postdoc has let his countertransference reactions guide his behavior, thereby prolonging the process of getting the student to the hospital. They try to give the postdoc feedback about this, but the postdoc feels invalidated and wronged and cannot take in the feedback. What are the ethical and liability issues in this case?

33. References Bernard, J.M. & Goodyear R.K. (1998). Fundamentals of clinical supervision.  Needham Heights, MA:  Allyn & Bacon. Campbell,J.M. (2000).  Becoming an effective supervisor. Ann Arbor, MI:  Sheridan Books.Frankel, A.S. (2000).  Laws & ethics:  beyond the basics.  Huntinton Beach, CA:  Psycho-Legal Associates, Inc.Harrar, W., VandeCreek, L. & Knapp, S.  (1990). Ethical and legal aspects of clinical supervision.  Professional Psychology:  Research and Practice.  21, 37-41.Nagy, T.F. (2005).  Ethics in plain english.  Washington D.C.:  American Psychological Association.Roberts, G.T., Murrell, P.H., Thomas, R.E. & Claxton, C.S. (1982).  Ethical concerns for counseling educators.  Counselor Education  and Supervision, 22, 8-14. State of California, Department of Consumer Affairs, Board of Psychology.  (2005).  Laws and regulations relating to the practice of psychology.  Sacramento, CA:  Department of Consumer Affairs.Upchurch, D.W., (1985)  Ethical standards and the supervisiory process.  Counselor Education  and Supervision, 25, 90-98. Wise, P.S., Lowery, S. & Silverglade, L. (1989)  Personal Counseling for Counselors in Training - Guidelines for Supervisors.  Counselor Education and Supervision, 28- 326-336.