Four Ethical and Legal Issues Related to Counseling Minors
Confidentiality, counselor competence, reporting abuse and neglect, and informed consent require special consideration when counselors provide services to minors. Although often the guidelines for working with minors may seem ambiguous, or ill-defined, following ethical codes and legal statutes is essential. This may be espcially critical when decision making relies on the counselor's discretion.
Ethical and Legal Conflicts. In some states, the law requires counselors to maintain confidentiality with clients as young as 12 in the school setting, but in a counseling setting parents usually have a legal right to information regarding their child until the age of 18. Ethical codes advise counselors to maintain confidentiality as specified by federal and state laws, but parental rights are upheld by law in most states. Many times counselors are "caught between allegiance to their minor clients and the legal reality of parental rights" (Herlihy & Corey, 2006, p. 201).
Related Ethical Codes. Standard A.2.a. states all clients have the right for informed consent and the freedom to decide to enter and remain in therapy after understanding their rights and responsibilities as well as the responsibilities of the counselor (ACA, 2005). Furthermore it states in Standard B.1.b., Standard B.1.c., and Standard B.2.d. counselors must respect clients' right to privacy unless they disclose an intention to harm self or others or when the client discloses they have a communicable and life-threatening disease. When counseling minor clients, the Standard B.5.a. states counselors must protect confidentiality according to federal and state laws (ACA, 2005).
The counselor will inform the parents and legal guardians about confidentiality as it applies to the minor's counseling sessions and work toward establishing a collaborative relationship with the parents (ACA, 2005, Standard B.5.b). When information must be released, the parent must be notified. Additionally, the minor should receive an explanation suitable for their developmental ability to understand why their confidentiality is being breached (ACA, 2005, Standard B.5.c.).
Resolving the Conflict. In many cases of counseling in private practice, the parents must understand confidentiality as it applies to their child in therapy (Remley & Herlihy, 2010). Difficulties may arise when children (especially adolescents) disclose information to the counselor that they do not want disclosed to the parents. When the child is in apparent danger, or may be exposed to foreseeable harm, it is necessary to inform the parents, however, the counselor can use discretion when disclosing other information to the parents. Resolving this conflict may include encouraging the child to disclose the information to the parents with the counselor's help. If the child refuses to disclose the information to the child and the counselor deems it necessary, the counselor should fully explain to the child why the information must be conveyed to the parents (Remley & Herlihy, 2010).
Ethical and Legal Conflicts. The law has no prescription for specific competence when counseling minors. However, the ACA (2005) describes the boundaries of competence for mental health counselors as practicing in situations based on "education, training, supervised experience, state and national professional credentials, and appropriate professional experience" (p. 9). When the counselor enters into a new area or specialty, and when developing new skills, counselors must make every effort to protect their clients from harm. This is especially true with children as a population already considered vulnerable (Remley & Herlihy, 2010). According to Lawrence & Kurpius, (2000) some psychological disorders are specific to children and applying the rules of adult psychopathology to them is incompetent and inappropriate.
Related Ethical Codes. ACA (2005) Standard C.2.a. states that counselors should understand and practice within the boundaries of their knowledge and experience and should not hold themselves out to providing services of which they are not appropriately trained. For the best possible outcome, counselors who work with children should be trained and experienced in providing services to minors. The ACA (2005) Code of Ethics Preamble states that "members are dedicated to the enhancement of human development throughout the life span" (p. 3 as cited by Lawrence & Kurpius, 2000).
Resolving the Conflict. Counselors should realize that effectiveness in adult counseling does not always transfer to working with children (Lawrence & Kurpius, 2000). The ACA (2005) directs counselors to consult with other professionals when confronting ambiguous situations with minors or when their experience is lacking (Standard C.2.e.). Additionally, counselors must continue to monitor their effectiveness and take reasonable steps to make any appropriate improvements (Standard C.2.d.). Counselors should understand theories of child development as well as gender role development. As with counseling any population, counselors must refrain from imposing their beliefs and values on their minor clients (Standard A.4.b.).
Reporting Abuse and Neglect
Ethical and Legal Conflicts. "Failure to report child abuse...constitutes one of the most common breaches of the law and ethical standards" (Lawrence & Kurpius, 2000). Reporting such abuse upsets the therapeutic process as well as the client/counselor relationship and can "disrupt and irrevocably destabilize the family in which the abuse occurs" (Lawrence & Kurpius, 2000, para. 41). Although reporting child abuse is difficult and may result in additional trauma for the child, the family, and the counselor, it is imperative to report such abuse. In most states, laws exist for the immediate notification of suspected child abuse and neglect and must be upheld by anyone responsible for the care and treatment of minors (Herlihy & Corey, 2006).
Related Ethical Codes. The ACA (2005) Standard B.2.a. requires a breach of confidentiality when the counselor believes such disclosure will protect the client from serious and foreseeable harm. In the case of reporting child abuse, federal and state laws require such reporting by mental health counselors and other health professionals.
Resolving the Conflict. Child abuse and neglect must always be reported to the proper authorities. In cases of suspected abuse, the counselor must be certain to gather adequate evidence and information prior to filing a report (Girgus, 2010). When making a determination to report abuse or neglect, the counselor should keep in mind the importance of advocating for what he or she thinks is best for the minor (Diaz et al., (2004). Lawrence and Kurpius (2000) note counselors may have to make ethical decisions that can put them in an ambiguous situation with the law and even with clients. Reporting child abuse and neglect will have significant consequences for the counselor, the child, and the family. Herlihy and Corey (2006) recommend consulting with other professionals as well as obtaining legal advice in any situation that may have future legal or ethical repercussions, or when the counselor has little or no experience with such reporting.
Ethical and Legal Conflicts. Lawrence and Kurpius (2000) point out informed consent is a contractual agreement between the client and the counselor for the initiation of therapy and falls under the jurisdiction of contract law. In most cases, however, when providing services to minors, the contract is between the parents and the counselor. This may present a conflict for the counselor, especially if the minor child is old enough to want to be involved and directive in the counseling process. Adolescents can consent to their own care when they are pregnant, married, emancipated, or when they are parenting (Diaz et al., 2004). Related Ethical Codes. The ACA (2005) Standard A.2.d. states when counseling minors, counselors must obtain informed consent from the parents or legal guardian (or other appropriate third party) prior to initiating therapy with a minor client. Counselors should include the minor in the agreement to initiating therapy, and include them, as appropriate, in decision making (Lawrence & Kurpius, 2000). Lawrence and Kurpius (2000) recommend making sure the minor client understands the implications and repercussions of therapy and obtaining their consent as well. Furthermore, they recommend using language understandable to the child's particular developmental ability.
Resolving the Conflict. Obtaining parental informed consent prior to initiating therapy is essential and a legal and ethical requirement. Lawrence and Kurpius (2000) note that in most cases, keeping the minor informed and integrated into decision making is helpful to the therapeutic relationship, although this does not waive parental consent or other parental rights.
American Counseling Association (ACA). (2005). 2005 ACA code of ethics [White Paper]. Retrieved from the ACA website: http://www.counseling.org/Files/FD.ashx?guid=ab7c1272-71c4-46cf-848c- f98489937dda
American Mental Health Counselors Association (AMHCA). (2010). 2010 AMHCA code of ethics [White Paper]. Retrieved from the AMHCA website: https://www.amhca.org/assets/news/AMHCA_Code_of_Ethics_2010_w_pagination.pdf
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Girgus, J. (2010). Barriers preventing the reporting of child abuse and neglect: A comparison of school social workers in public and private settings (Unpublished doctoral dissertation). Walden University.
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Remley, T. P., Jr., & Herlihy, B. (2010). Ethical, legal, and professional issues in counseling (3rd ed.). Upper Saddle River, NJ: Merrill/Pearson Education