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Article Excerpt
The ACA Code of Ethics (American Counseling Association [ACA], 2005; available at www.counseling.org) has a significant impact on the counseling profession. All ACA members are required to abide by the ethics code and over 20 state licensing boards use the ACA Code of Ethics as the basis for adjudicating complaints of ethical violations (ACA, 2007, pp. 98-99). Because the ACA Code of Ethics is considered the standard for the profession, professional counselors can be held to the standards contained within by a court of law, regardless of whether or not they hold ACA membership (N. Wheeler, personal communication, April 5, 2007).
The ACA Code of Ethics is revised every 10 years, with the latest edition approved by the ACA Governing Council in October of 2005. In order to accomplish this task, an Ethics Revision Task Force was appointed in 2002 and charged with revising the ethics code to be congruent with changes that had occurred in the counseling profession since 1995, the date of the previous edition. The members of the Ethics Revision Task Force were John W. Bloom, Tammy B. Bringaze, R. Rocco Cottone, Harriet L. Glosoff, Barbara Herlihy, Michael M. Kocet (Chair), Courtland C. Lee, Judith G. Miranti, E. Christine Moll, and Vilia M. Tarvydas.
The revised ACA Code of Ethics drafted by the Ethics Revision Task Force and approved by the ACA Governing Council contains substantive new mandates throughout the document. The interviews that follow flesh out 10 of these new imperatives in the areas of confidentiality, romantic and sexual interactions, dual relationships, end-of-life care for terminally ill clients, cultural sensitivity, diagnosis, interventions, practice termination, technology, and deceased clients. The interviews were conducted in 2006 by David Kaplan, the ACA Chief Professional Officer, with the members of the Ethics Revision Task Force previously listed. As a service to members, ACA ran the following columns consecutively in Counseling Today in 2006 (available to ACA members online at www.counseling.org.ethics).
* The End of "Clear and Imminent Danger"
David Kaplan: For many, many years the Code of Ethics stated that confidentiality was to be broken if there was "clear and imminent danger." The 2005 code now states in section B.2.a. that confidentiality is broken when there is "serious and foreseeable harm." Could you tell ACA members why the Task Force changed the wording from "clear and imminent danger" to "serious and foreseeable harm"?
Michael Kocet: The task force felt that there were broader circumstances that needed to be brought into account. Also, the legal language of the Tarasoff ruling had an impact in terms of duty to warn and duty to protect and who is the foreseeable victim or if foreseeable harm can be identified.
DK: So the word "foreseeable" actually came from the Tarasoff case?
MK: That is my understanding.
DK: How would you suggest that professional counselors think differently and make the shift from "clear and imminent danger" to "serious and foreseeable harm" when considering the need to break confidentiality?
MK: I still see the essence of breaking confidentiality revolving around "clear and imminent danger" but what "serious and foreseeable harm" does is to allow a broader scope of other circumstances where counselors need to seek consultation and seek ethical advice when considering the breaking of confidentiality.
DK: So "serious and foreseeable harm" is broader than "clear and imminent danger"?
MK: I think so. It recognizes that in some cultural and contextual situations clients may not have the need to maintain traditional confidentiality. For example, the client may ask that you automatically consult a member of his or her spiritual or religious community. I've also used the example of a counselor who is seeing a client who has a terminal illness, has exhausted all medical options, is psychologically healthy and lucid and rationale with no substance abuse or major depression and says, "I want to explore ending my life. I want your counseling and support through this process." Since "serious and foreseeable harm" can be contextual, the counselor has the option of working with this client.
DK: Is "serious and foreseeable harm" always contextual.
MK: No. As an example, if a client says, "I am going to go home and shoot my partner," that is objectively foreseeable harm.
DK: If we can focus on the word "foreseeable" for a moment, under the old 1995 Code a client who told us that a crime was committed in the past had that information kept confidential because it occurred in the past and there wasn't any clear danger in the present. Does this also apply under the 2005 Code?
MK: I would agree. There is no foreseeable harm to an event that occurred in the past.
DK: A focus of the 2005 Code seems to be an emphasis on consulting with other professional counselors if you are considering breaking confidentiality.
MK: The Task Force supported a team approach. Consulting with other professionals when faced with an ethical situation is always a good step and helps you to think about different options. The bottom line is that two (or three or four) heads are better than one. Of course, you still have an obligation to only reveal information germane to the consultation.
DK: The focus of the 2005 Code on the importance of consulting with colleagues is in keeping with court rulings that have come out since 1995 that indicate that in order to maintain minimal standards of care, a reasonable counselor will consult with other professional counselors when breaking confidentiality.
MK: Sure, and it also matches most, if not all, of the ethical decision-making models that are in texts and the literature. And in my opinion, consultation can be an ethics textbook, a journal article, or a telephone conversation in addition to a face-to-face office visit.
DK: That is really interesting; I hadn't thought of that. Being a baby boomer, I usually think of face-to-face consultation.
Standard B.2.a of the new Code of Ethics specifies that counselors consult with other professionals when in doubt as to the validity of an exception. Does that mean that if a counselor does not consult when breaking confidentiality, that they have been unethical? In other words, are we at the point in the profession where we are saying that if you are about to break confidentiality, we know you have to consult and it is unethical not to do so.
MK: The key phrase is "when in doubt." Let's go back to the example of the client who says "I have a gun and I'm going to go home and shoot my partner." To me, in that moment, that does not raise doubt about breaking confidentiality. But, for example, when we talk about something like HIV and AIDS, it does become grayer.
For example, a client who says that they just found out that they are HIV positive, are angry and upset, and are going to have unprotected sex with their partner and neighbor is a situation that I would run by a colleague to get some consultation and feedback.
* New Restrictions On Romantic/Sexual Relationships
DK: Today we are going to be talking about changes around sexual or romantic relationships specifically as they relate to Standard A.5 in the new 2005 ACA Code of Ethics. To start off, my understanding from the new code is that sexual or romantic interactions between a counselor and a current client continue to be prohibited.
MK: That is correct.
DK: However some things that do change include increasing the number of intervening years that must pass in order to have a romantic/sexual relationship with a former client and a new prohibition on romantic/sexual relationships with the family members and romantic partners of clients.
MK: Correct.
DK: So let's start at the beginning. Sexual or romantic interactions with clients continue to be prohibited?
MK: Absolutely. The 2005 ACA Code of Ethics continues to recognize the harm that can be impacted upon clients when they are sexually intimate with their counselor. The counseling relationship is one based on trust and so we must respect the power differential inherent in any counseling relationship regardless of the counselor's theoretical orientation or perspective.
Engaging in any type of sexual or intimate relationship with a current client is abuse of power. Clients come into counseling emotionally and psychologically vulnerable and in need of assistance, and so a counselor trying to engage in such relationships would be trying to take advantage of that client and their vulnerabilities to meet their own needs. Relational/cultural theory frames this as striving for a "power with" instead of a "power over" relationship.
DK: So the reason that the 2005 ACA Code of Ethics continues to give no leeway and to ban all sexual or romantic interactions with clients is because we know that harm always occurs when that happens?
MK: Yes. Even if it appears on the surface that a client is open to a sexual/romantic relationship, there are always things that happen and the client could later turn around and say that he or she wasn't able to make a decision that was in their best interest at the time and therefore felt coerced.
DK: That relates to malpractice suits and the one exception that liability companies such as the ACA Insurance Trust make about sexual contact with a client. All liability insurance policies that I have seen provide a lawyer and defend a counselor if he or she is accused of sexual contact with a client. However, if the counselor is found guilty, the insurance company will not pay any monetary damages that are awarded and will also expect to be reimbursed by the counselor for all legal fees incurred in his or her defense. The fact that sexual contact is the only exclusion contained in a malpractice policy indicates how harmful sexual contact is to a client.
MK: This is an important piece for counselors to understand and to plan healthy alternative ways to meet their emotional and romantic needs.
DK: As mentioned above, the 2005 ACA Code of Ethics increases the prohibition on sexual and romantic interactions with former clients. The old 1995 code stated that counselors were to avoid sexual intimacies with former clients within 2 years of termination. The revised 2005 Code expands the timeframe to 5 years. Why did the Ethics Revision Task Force decide to increase this prohibition to 5 years?
MK: While some may see the exact number of years delineated as arbitrary, the reason a ban on sexual/romantic relationships with former clients was increased to 5 years was that we wanted there to be a little more time for the counselor to be reflective and to give more time for closure of the counseling relationship. It is really important that enough time has passed for the power differential to be resolved. It is also important to recognize that counselors can decide to make the personal choice to never engage in romantic or sexual relationships with former clients even though the ACA Code of Ethics allows one to do so after a 5-year waiting period.
DK: For the first time in its history, the ACA Code of Ethics (in Standard A.5.b.) now explicitly prohibits sexual or romantic relationships with the family members or romantic partners of clients. It will be interesting to hear how that came up in the revision discussions and what the thinking was behind that.
MK: The Task Force prohibited sexual or intimate relationships with family members because counselors engaging in such relationships with clients' relatives can have a harmful impact on clients. For example, if a counselor were to have an intimate or sexual relationship with a sibling or a former partner of a client, that could have a potential risk of emotionally harming the client. The main goal of counseling should be to focus on the best interests and welfare of the client. Counselors cannot know...
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