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a discussion of the four elements of informed consent described in Chapter 12 of your text.
I have attached chapter 12 sorry the formatting is off
INFORMED CONSENT
Before a person becomes a client, he or she must consent to treatment.
Obtaining consent precedes any treatment and recordkeeping. In order
to consent to treatment, the client must first be made aware of what he
or she is agreeing to become a participant in. Minimally, the client should be
made aware of the who, what, when, and how. The qualifications of the professional
counselor who will be treating the client should be clearly acknowledged.
The particular goals of counseling must be identified, as well as the risks
and benefits associated with counseling. When results, if any, may be expected
and how financial considerations are arranged should be specified.
A client’s consent to treatment can occur only after certain requirements are
met, defined as the elements of informed consent (Bray, Shepard, & Hays, 1985;
Schwitzgebel & Schwitzgebel, 1980). The elements of informed consent are
competence, voluntariness, full information, and comprehension. Competence
is the client’s ability to make a rational decision with regard to participation in
treatment. Voluntariness means that the client is free to make the decision to
participate or not to participate in treatment. Full information is provided to the
client regarding the probable risks and the potential rewards of participation in
treatment. Comprehension means that all information provided is expressed
in simple language the average person would be expected to easily understand.
controversy. Professional judgment must be used when seeking a balance between
the client’s desires and right to make an informed decision about treatment
and the potential therapeutic compromise resulting from overdisclosure.
CONFIDENTIALITY
The obligation of practitioners to maintain the confidentiality of their relationships
with their clients is a cornerstone of the therapeutic process and an essential
prerequisite for the therapeutic relationship. Confidentiality, according to
Siegel (1979), involves professional ethics rather than legalism and expresses a
promise or contract to reveal nothing about an individual except under certain
conditions agreed to by the client. Confidentiality may also be based in statute
or case law (Swoboda et al., 1978). Confidentiality is thought of as being similar
to, but not interchangeable with, privileged communication and privacy
because they have different meanings. Distinguishing between confidentiality,
privilege, and privacy is critical in understanding a variety of legal/ethical problems.
Confidentiality, as defined by Shah (1969), relates to matters of professional
ethics. Confidentiality protects the client from unauthorized disclosures
of any sort by the practitioner without informed consent of the client. Confidentiality,
however, is not absolute. State and federal regulations and court decisions
have mandated the disclosure of information in certain situations, even
if it means breaking confidentiality. Understanding the concepts of privilege
and privacy will better enable practitioners to maintain confidentiality.
PRIVILEGED COMMUNICATION
Privileged communication is “a legal right which exists by statute and which
protects [clients] from having [their] confidences revealed publicly from the
witness stand during legal proceedings without [their] permission” (Shah, 1969,
p. 57). Siegel (1979) defines privileged communication as
. . . a legal term involving the right not to reveal confidential information
in a legal procedure. Privilege is granted by statute, protects the client
from having his/her communications revealed in a judicial setting without
explicit permission, and is vested in the client by legislative authority.
(p. 251)
Privileged communication, then, is a legal concept and refers to the right of
the client not to have his or her confidential communications revealed without
his or her consent. If the client waives this privilege, then the information must
be revealed. Privilege belongs to the client and is meant for the protection of
the client. Privilege may be claimed by the client or by a representative of the
client acting on the client’s behalf. A professional may claim privilege only on
behalf of the client, not himself. However, it is important to note that the priv-The actual amount of information to give a client continues to be a subject of ileged communication for the counselor–client relationship is not legally supported
in many states. This means that privileged communication only exists
for clients of professionals specifically enumerated in the statute. In other
words, only those “professionals” (e.g., physicians or psychiatrists) specifically
defined are included. In the absence of specific enumeration in the statute, inclusion
may be provided by meeting the qualifications of one who is defined as
a professional. Texas, for example, uses the following definition of professional
to determine where privilege applies:
(1) A professional means any person . . . licensed or certified by the State
of Texas in the diagnosis, evaluation, or treatment of any mental or emotional
disorder, or involved in the treatment or examination of drug
abusers; or reasonably believed by the patient to be included in any of the
preceding categories. (2) A patient means any person who consults, or is
interviewed by a professional for the purpose of diagnosis, evaluation, or
treatment of any mental or emotional disorder, including alcoholism, and
drug addiction; or is being treated voluntarily or being examined for admission
to voluntary treatment for drug abuse (Rule 510, Texas Rules of
Civil Evidence).
PRIVACY
Privacy, with regard to counseling and psychotherapy, has been defined as
“freedom of individuals to choose for themselves the time and the circumstances
under which the extent to which their beliefs, behaviors, and opinions
are to be shared or withheld from others” (Siegel, 1979, p. 251). The concept
of privacy is addressed by the Fourth Amendment to the United States Constitution,
which offers protection against invasion of privacy by the government.
Everstine et al. (1980) raise some important questions pertaining to privacy: To
what extent should beliefs and opinions be protected from the scrutiny of others?
Who may intrude on a person’s privacy and how and under what circumstances
is this decided? These questions are of particular importance when they
include a prospective employer’s access to an applicant’s psychological tests,
parental access to a child’s school records, or insurance company or other thirdparty
payer access to information regarding counseling or psychotherapy, or
when counseling professionals are bound by law or professional codes of ethics
to break confidentiality.
Of central issue here is the question of whose behalf the counselor or therapist
is acting on as agent. Shah (1970) notes that in some governmental agencies
and institutions the counselor or therapist is not primarily the client’s agent.
In these situations, counselors or therapists are faced with conflicts between
their obligations to their clients and their obligations to their agency or institution.
Shah maintains that any potential conflicts should be clarified before entering
into a diagnostic or therapeutic relationship with the client. Denkowski
and Denkowski (1982), in support of Shah’s position, contend that counseling professionals should inform clients of potential breaches of confidentiality. Furthermore,
they note that it is ethically incumbent on counseling professionals
that all reasonable steps be taken to restrict the legally sanctioned dissemination
of confidential client information to its bare minimum (p. 374).
DUTY TO WARN
Because confidentiality is not absolute, it is essential that the counseling professional
determine under what circumstances it cannot be maintained. Ethical
guidelines (ACA, AMA, APA and others) maintain that disclosure of information
is necessary or required in order to protect the welfare of the individual or
the community, or where there is a clear and imminent danger to the individual
or to the community. What represents a need to protect or clear and imminent
danger is usually left to the discretion of the counseling professional.
The best-known case regarding clear and imminent danger and duty to warn is
the Tarasoff case (Tarasoff v. Regents of the University of California, 1976). The
facts of the case are as follows:
In the fall of 1969, Prosenjit Poddar, a citizen of India and a naval architecture
student at the University of California’s Berkeley campus, shot and stabbed
to death Tatiana Tarasoff, a young woman who had spurned his affections.
Poddar, prior to killing Tarasoff, was seeing a psychologist as an outpatient at
the student health service on the Berkeley campus of the university. Poddar had
confided to the psychologist that he intended to kill an unnamed woman (who
was readily identifiable as Tatiana Tarasoff ) when she returned from a trip out
of the country. The psychologist consulted with colleagues and then made the
assessment that Poddar was dangerous and should be evaluated for civil commitment.
The psychologist called the campus police and told them of the death
threat and of his conclusion that Poddar was dangerous. The campus police did
take Poddar into custody for questioning, but after finding him rational and obtaining
a promise that he would stay away from Tarasoff, they concluded he
was not dangerous and released him. Poddar never returned to the student
health service center, and two months later, killed Tarasoff.
Tarasoff ’s family filed suit against the University of California Board of Regents,
the student health center staff members involved, and the police for failing
to notify the intended victim of the threat. A lower court dismissed the suit,
and the family appealed to the Supreme Court of California, who in 1976 ruled
in favor of the parents, holding that the psychologist did indeed have a duty to
warn the victim or her family of the danger. The court’s ruling requires that
counseling professionals breach confidentiality in cases where the general welfare
or safety of others is involved. This was a California case, so counseling
professionals in other states are not bound by this court ruling.
Differing opinions, however, do exist. Siegel (1979) contends that “this was
a day in court for the law and not for the mental health professions” (p. 253).
He contends that, if Poddar’s psychologist had accepted the absolute and invi olate confidentiality position, Poddar might well have been kept in psychotherapy
and the life of Tatiana Tarasoff might have been saved. Other professionals
(Everstine et al., 1980) accept the duty to warn, seeing that there are
certain conditions under which counseling professionals must exchange their
professional role for the role of a concerned citizen.
Corey, Corey, and Callanan (1984) offer guidelines for counseling professionals
to follow if they determine a client poses a serious threat of violence to others.
1. The counseling professional should inform the client of the possible action
they must take to protect a third party in situations where there is a threat
of violence.
2. When a client makes a threat against others, the counseling professional
should document everything observed and stated in the session.
3. If the counseling professional is under supervision, he or she should notify
the supervisor verbally and in writing of the threat.
4. The counseling professional should seek professional consultation on how
to proceed, and document the consultation.
5. The appropriate authorities should be notified.
6. The intended victim must be notified; in the case of a minor, the minor’s
parents should be notified also.
SUICIDE AND DUTY TO PROTECT
Clients can pose not only a danger to others, but also to themselves. Most professional
counselors inform their clients that they have an ethical and legal responsibility
to break confidentiality when they have valid reason to suspect
active suicidal intent on the part of the client. In the previous discussion, it was
emphasized that professional counselors have a duty to warn and to protect
others; these principles also apply to the client. Despite the argument that states,
“It’s my life and I have a right to do as I desire, including ending it,” professional
counselors have an ethical duty to protect their clients as well as others.
The debate over individual rights, including the right to take one’s own life,
has intensified in recent years. Szasz (1986) challenges the position that mental
health professionals have an absolute duty to try and prevent suicide. He argues
that suicide is the act of a moral agent who is ultimately responsible, and opposes
coercive methods of suicide prevention, such as involuntary commitment
to a psychiatric hospital. Guided by the principle of autonomy, Szasz takes the
stance that it is the client’s responsibility to choose to live or die. Szasz contends
that if the client seeks professional help for suicidal tendencies, then the professional
has an ethical obligation to provide the help being sought. However, according
to Szasz, if the client does not seek such help or actively rejects it, then
the professional’s duty is either to persuade the client to accept help or to leave
the client alone. The core of his argument is seen in the following: ecause I value individual liberty highly and am convinced that liberty
and responsibility are indivisible, I want to enlarge the scope of liberty
and responsibility. In the present instance, this means opposing policies of
suicide prevention that minimize the responsibility of the individual for
killing themselves and supporting policies that maximize their responsibility
for doing so. In other words, we should make it more difficult for suicidal
persons to reject responsibility for deliberately taking their own lives
and for mental health professionals to assume responsibility for keeping
such persons alive. (p. 810)
Szasz is not stating that suicide is always a good or moral option; rather he
is insisting that the individual and not the government be responsible for the
decision to take one’s own life. The right to suicide implies that individual
rights supersede the power or right of the government to coercively prevent it.
In an opposing view, this author (Freeman, 1993) also sees responsibility
and choice as central concepts; however, responsible rational choice and therefore
autonomy is not possible when the individual feels compelled to make one
choice over another, often out of desperation, as in the case of suicide. The option
of suicide is necessitated by a constricted narrowing of choices that an individual
sees as open to them. The goal is not death, but freedom or escape
from that which is oppressive or undesirable. A responsible choice is seen here
as severely limited at best and, in the worst case, not available as the need to escape
is overwhelming. The option of surrender or suicide presents a struggle, a
dilemma. The question is to die or not to die (not how to address the overwhelming
or insurmountable oppressive problem that has driven the individual
to the point of desperation). If suicide is an option in resolving a conflict, then
the individual must guard against it, watching with one eye, so that the back is
never completely turned. To turn away might result in unwillingly becoming a
victim of one’s own hand. However, dealing with the problem requires the individual’s
full attention and energy, which cannot be given up because of the
vigil required over one’s own death impulse. Intervention, then, is seen as an
ethical requirement, not to take away from but to return to the individual the
task of responsible choice. Utilizing Schneidman’s (1984, p. 310) succinct statement
that “suicide is not a ‘right’ any more than is the right to belch, but if
compelled to the individual will do it,” the point is made that if forced or compelled
to do it, suicide will be the choice regardless of interventions. This author
does not say that suicide is never an acceptable option, but an individual
should be given the time and resources whereby he or she may be allowed to
give up the option of suicide and not be compelled to automatically accept it.
I agree with Schneidman that the election of suicide by the individual cannot
be taken away, for if driven to take their lives, many will. Many times, with appropriate
intervention and help, other options are found.
When faced with the risk of potential suicide by a client, the professional
counselor is immediately placed in a precarious situation. The conservative response
might be to safeguard the client through hospitalization. The less conservative
approach might be to continue to do outpatient work, but on a more frequent basis. Regardless of which approach one chooses, it should be based
on a clear and thorough understanding of one’s own values underlying the
counselor’s role and responsibility in preventing suicide. Additionally, counseling
professionals should have knowledge and understanding of legal obligations
that require action on their part. A determination of lethality should also be
made, because what may appear on the surface as a mild suicidal risk, when assessed,
could actually be much more serious. Readers are referred to Schneidman’s
work on assessing suicidal lethality.
Counseling professionals have an obligation to inform clients that the duty
to protect exists. Additionally, clients should be told that the counseling professional
has a duty to report suspected or substantiated instances of child abuse,
incest, and/or other actions that constitute a threat to others or to the clients
themselves. These conditions or limitations should be made clear to the client
at the beginning of the therapeutic relationship.
ACCESS TO RECORDS
Professional counselors maintain records on clients for various reasons, such as
legal obligation, documentation of service, communication to other professionals,
and maintenance of a chronological therapeutic history. These records,
by their very nature, will contain confidential information; and as long as they
exist, someone other than the professional counselor who collected the material
may seek access to them.
Requirements for retaining records will vary as a function of the applicable
state and or federal regulations, age of the client, and whether the file or record
is considered a business record, medical record, school record, or research
record. The legal requirements regarding retention of medical, school, and research
records are usually more available and specific than those regarding a
mental health practitioner’s records. Many states do not specifically mention
counseling or mental health records, making the requirements unclear. In the
absence of clearly defined retention guidelines, the U.S. Internal Revenue Service
(IRS) requirements on record retention for professional businesses may
provide an alternative and defendable guideline. The IRS requires that professional
businesses retain bookkeeping records for seven years. Following this
guideline, the counseling professional can show a good faith effort in following
established criteria for retention of records.
Time of retention of records begins with the termination of professional
services to the client. In the case of a minor client, the retention clock begins
when they have attained their legal majority. This means that in the case of a
minor the record may need to be kept much longer than seven years.
Disposal of confidential records after the mandatory retention time should
be performed in a manner consistent with their confidential nature. Shredding
of records is a common method of disposing of confidential material. Other
methods such as incineration are equally common and acceptable. The disposal of confidential records in any way that compromises their confidentiality must
be avoided at any cost. An example of potential compromise might be placing
records in plastic bags and depositing them in a Dumpster. This exposes the
records to unauthorized examination and culling by third parties, as well as accidental
exposure due to various traumas while in route to a final disposal
point.
While records exist, the obvious points to consider are how, under what
circumstances, and to whom should access to client records be allowed? To
begin, the professional counselor must decide how to obtain the client’s informed
consent for the release of confidential information. Second, the circumstances
under which the information is being sought by a third party or
parties and the purpose for which it is sought must also be determined. Finally,
who is going to be the recipient of the information, and is the information appropriate
for disclosure to them?
INFORMED CONSENT AND
THE RELEASES OF RECORDS
The elements of informed consent have been identified as competence, voluntariness,
full information, and comprehension. The client’s informed consent
for the release of confidential information should meet those criteria and also
follow the guidelines outlined in the Code of Federal Regulations (42 C.F.R,
Part 2). A consent or release of information form should contain the following
information: the name of the person, persons, or agency to whom the records
will be released; specific description of which records, containing what information
about the client (psychological or other testing, diagnosis, prognosis,
treatment, or case notes) and the intended use of the information; the date the
release was signed; the date the release expires, as well as a statement that the
consent may be revoked at any time by the client (except when action has already
been taken); any limitations on the information provided; the name and
signature of the individual providing authorization to release the information
(identify the individual’s relationship to the client if not the client him/herself );
and the signature of at least one witness. Furthermore, a disclaimer is usually included
stating that this information is confidential and further disclosure or release
of this information to anyone other than the identified recipient may be a
violation of confidentiality.
Access of client records by the court is yet another issue to be considered.
It is not unusual for a subpoena duces tecum to be issued requiring the professional
counselor to appear in court and bring “any and all files, case notes, tests
and reports generated, billing records and correspondence” regarding the case
in question. In such cases the practitioner is wise to seek consultation with legal
counsel regarding the law and any resulting obligations. Should it be ultimately
determined that the demand for records has been appropriately issued, the pr fessional counselor may be in an awkward position, especially if disclosure is
viewed by the practitioner as potentially detrimental to the client’s well-being
or if the client does not wish the information disclosed. There are times when
ethical behavior will be at odds with legal requirements. In such cases, the professional
counselor may be accused of breaking the law should the disclosure
not be made as demanded. A counselor could be fined or jailed for contempt.
On the other hand, allowing access to the client’s confidential information may
be an ethical violation. In the absence of clear guidelines provided by the ethical
codes, one must rely on a thorough knowledge of professional ethics and
the process as it is applied to a given situation. As Cervantes advised, “Forewarned
is forearmed.” Consultation with and representation by legal counsel is
strongly recommended.
CLIENT ACCESS TO RECORDS
Clients’ rights to access their mental health records remain a potential area of
conflict that is not directly addressed in the various ethical codes. This is further
compounded by the type of records sought, as well as open-records laws
governing public and private information. Legislative, ethical, and other practice
guidelines regarding clients’ rights to access their files have fueled debate
and opposing views. Given the recurrence of legal and ethical debate regarding
client access, the right of clients to have access to their files merits attention.
Access to institutional or agency records is usually governed by institutional
or governmental policy. Federal law such as The Family Educational Rights
and Privacy Act of 1974 (The Buckley Amendment) and other federal and state
legislation specify a right to access institutional or agency records. The way
records are defined will often determine their accessibility. Records can be categorized
in three basic types: institutional (e.g., school, agency/clinic, or hospital),
testing (scored standardized tests requiring test security), and working or
case notes. It is this latter category, working notes or case notes, that causes the
greatest concern.
Advocates of more open access to records cite improved client knowledge
as helpful and claim improving consumer rights aids in consumer behavior
(Roth et al., 1980). Mappes, Robb and Engels (1985) provide the following:
Feedback provided by such access may be valuable to both the client and
the practitioner. It seems logical that counselors who are not willing to
explain and to be open and honest with clients, to the extent of allowing
clients to see their own files, cannot be expected to create an atmosphere
and relationship of trust and safety sufficient to allow the clients to examine
their problems openly and experiment with new ways of handling
their lives. Preventing client’s access to their own counseling files risks
limiting potential for growth and strength and may suggest a lack of therapist
confidence in the client’s self-help abilities. (p. 251o Previous studies performed at the University of Vermont and Pittsburgh’s
Western Psychiatric Institute suggest that a more open records policy may reduce
clients’ anxiety and improve cooperation, while no adverse effects were
noted (Roth et al., 1980).
Those who oppose clients’ rights to openly access their files note that the
information contained may be unintelligible to the client or may be misleading
and possibly detrimental if taken out of context (Strassburger, 1975). When a
professional denies a client’s request for release of mental health records, he or
she should provide the client a reason for the refusal in writing and file a copy
in the client’s file. The statement should specify what part or parts of the file
access is being denied, the reason, and duration of rejection.
An additional concern with regard to access of a client’s records occurs
when the client is a child or has been deemed legally incompetent, and a parent
or guardian has been appointed and may be entitled to legal access. The
professional counselor must recognize the potential uniqueness of this situation
with regard to the individual client’s right to privacy and confidentiality. From
the onset, all parties should be informed about the confidential nature of the
therapeutic relationship. Discussion and subsequent agreement regarding what
type of information might be shared and with whom should be made. Information
such as imminent danger to self or others or the general progress or
course of treatment would be appropriate to disclose.
Third-party insurers represent yet another group that may seek access to
confidential client records. Clients sometimes authorize the release of information
to third parties without realizing the full implications of their actions.
Clients often do not realize that submitting a claim for mental health service
benefits to their insurance company may authorize (or require) the professional
counselor who provides the services to disclose certain information (e.g., diagnosis,
type and duration of treatment, and other data). In some situations, the
insurer may require a chart review or audit that requires a peer review group
or person to access detailed information from the case file. This information
may include detailed case notes, psychological test results, treatment plan, diagnosis,
and prognosis. Some insurance companies share certain data obtained on
their insured individuals with other insurance companies to aid in determining
future insurability (or denial of insurance). Clients are not always aware that
they are authorizing the potential release of such information when signing a
claim form for submission of benefits. The potential implications of using thirdparty
insurance for payment of mental health services should be made clear to
clients, as it involves access to confidential information.
Professional Review Committees (e.g., state boards and professional associations’
ethics committees) constitute another type of third party that may request
access to a client’s confidential information. This type of request usually
involves a complaint filed against the practitioner by a client or other party.
When asked to respond by such a committee, the professional counselor should
first determine if a consent to release information has been obtained. It is unethical
for any committee to institute an inquiry about a client without first
obtaining written consent by the client to the practitioner for the release of in- formation. When a complaint is made to an ethical committee by a client or a
client’s representative, the professional counselor against whom the complaint is
being made must be allowed sufficient response; therefore, a consent to release
confidential information must be made in order for the practitioner to defend
himself or
herself.
The same principle applies in malpractice litigation. Confidentiality
must be waived in order for the practitioner to defend himself or
herself.
In the final analysis of the ethical and legal provisions regarding confidentiality
and access to client mental health records, it is important to remember
that ethical requirements and laws applicable to confidentiality of records are
constantly changing. Answers that may have been correct in the past may now
be incorrect. Continued vigilance on the part of the counseling professional is
required to remain informed and updated on this keenly important and constantly
changing issue.
CLIENTS’ RIGHTS
Ethical practice requires that professional counselors acknowledge the legitimate
rights of the individuals they serve and have an awareness and understanding
of the subsequent duties involved. In the past, those who sought
mental health services have enjoyed few if any rights. Initially thought to be
possessed by evil spirits, they were isolated and exposed to cruel and often inhumane
conditions. Though individuals such as Phillippe Pinel, Dorothea Dix,
and others were able to improve the treatment of the mentally ill, it was not
until the 1960s that legal reform began to take place in the mental health arena.
The client’s right to confidentiality and informed consent was discussed previously.
This section is intended to provide a brief overview of the subject of
client rights, such as the right to treatment, the right to refuse treatment, commitment,
confinement and release from confinement, and related issues. While
legislation enacted at both the federal and state levels has recognized, supported,
and regulated mental health services, the courts have also rendered numerous
decisions with direct influence on the actions of counseling professionals.
THE RIGHT TO TREATMENT
Treatment may be defined as a course of planned intervention designed to
bring about behavioral changes in an individual considered aberrant or dangerous
(Brent,
1984; Schwitzgebel & Schwitzgebel, 1980).
Treatment, by this definition,
may include a variety of possible procedures (e.g., psychological
[counseling or psychotherapy], sociological, or medical). Medical procedures
(such as electroconvulsive therapy) can also be integrated with psychological
and sociological treatments at the direction of the attending physician. Additionally,
the development of major tranquilizers and other psychotropic drugs beginning in the 1950s has had and continues to have a profound effect on the
treatment of the mentally ill.
The right to treatment was significantly influenced by the 1966 landmark
case of Rouse v. Cameron. The Federal Court of Appeals in the District of Columbia
held that Rouse—charged with a misdemeanor, found not guilty by
reason of insanity, and involuntarily committed—had a statutory right to treatment,
which he had not received in four years of confinement. Although this
decision was based on a state statute, the judge deciding the case discussed a
constitutional right to treatment under the Eighth Amendment (forbidding
cruel and unusual punishment) and the Fourteenth Amendment (providing for
due process and equal protection rights). In the 1971 case, Wyatt v. Strickney, a
federal district court and a federal court of appeals ruled that the mentally ill
have a constitutional right to treatment and that not to provide treatment
would be a violation of the mentally ill person’s due process under the Fourteenth
Amendment. The ruling, which applied to the Alabama State School for
the Mentally Retarded, has had far-reaching effects on treatment institutions
across the United States. Individualized treatment plans and the least restrictive
setting for treatment were two of the most significant and far-reaching results
of the court ruling. In addition, addressing the mental patient’s right to be free
from harm, the Wyatt decision discussed the use of restraints and/or seclusion
in the treatment of mental patients. The court mandated certain guidelines,
many of which have been incorporated in other state statutes. These specify
who can institute restraint or seclusion procedures; how long an individual can
be kept in restraint and/or seclusion; what documentation is required before,
during, and after; and what the individual’s rights are while in restraint and/or
seclusion.
In the case of O’Conner v. Donaldson (1975), the U.S. Supreme Court recognized
for the first time a constitutional right to treatment for the nondangerous,
mentally ill person. The court ruled that the state could not confine or
otherwise commit a mentally ill person unless treatment was provided. The
civilly committed mentally ill person has a constitutional right to be released if
he is not dangerous to himself or others, is capable of surviving in the community
with help, and is receiving only custodial care. In addition to addressing a
mentally ill person’s right to treatment, this ruling provided for an alternative
or least restrictive placement of mentally ill persons who are judged not to be a
danger to themselves or others.
It is clear that the right to treatment and to the least restrictive environment
has been assured by the courts. The reality, however, can be different. These
rights are not always consistently enforced due to many factors including a lack
of financing, inadequate staff, and inadequate monitoring of these rights. Professional
counselors should consult state statutes and determine which of these
rights discussed have been incorporated into those statutes. They should work
with other mental health professionals in assuring and providing these rights.
Participation in and documentation of treatment plans, actual practices, and
procedures is one way of concretely contributing to and helping to assure the
rights of clients. RIGHT TO REFUSE TREATMENT
There are instances in which institutionalized clients, though guaranteed by law
the right to treatment, have refused it. This may include not only medical treatment
but also psychological treatment (counseling or psychotherapy). In recent
years, this right of the individual to refuse treatment has received increasing attention.
The issue of an individual’s right to refuse treatment is a multifaceted
one. To begin with, the commitment or labeling of an individual as mentally ill
does not automatically mean legal incompetence. Therefore, generally speaking,
a mentally ill individual can refuse treatment if there is no court document
determining that the individual is incompetent. Swenson (1997) and Schwitzgebel
and Schwitzgebel (1980) note that some obvious legal problems are the
patient’s competency to decide to refuse treatment, procedures for obtaining
informed consent of a legally competent but severely disturbed individual, handling
of objections on religious grounds, and potential liability if a client who
refused treatment injures himself or herself or others.
Obtaining consent to treatment from a minor presents another unique set
of issues. Usually a parent’s consent is required to undertake counseling or psychotherapy
with a client who is a minor. According to Melton (1981), when a
child wishes to refuse treatment, even if the proposed treatment involves inpatient
hospitalization, no legal recourse exists under most circumstances. In the
past, the assumption appears to have been that the mental health professional
contracted to treat the child at the parent’s request was an unbiased third party
who could assess what would be in the best interest of the child.
Refusal of treatment may also include refusing medication. The Wyatt ruling
stated that no medication may be administered without a written order of
a physician. Furthermore, medication cannot be used as a punishment or as a
substitute for a treatment program, or merely for the convenience of the staff or
facility. In the case of Winters v. Miller (1971), medication was administered to
a patient in violation of her religious beliefs (Christian Science). The court held
that, absent a finding of special incompetence (mere mental illness was not considered
a special incompetence), a mental patient retains the right to refuse
medication on First Amendment grounds.
The right to refuse treatment, including medication, is a complex issue. In the
event of an emergency where the individual is judged to be a danger to self or
others, most state mental health codes provide for the assessment and/or treatment
of the individual even though he or she may refuse it. At this point, the distinction
between voluntary and involuntary confinement may be appropriate.
CIVIL COMMITMENTS: VOLUNTARY,
INVOLUNTARY AND COURT ORDERED
An individual may be admitted to a mental health facility in several ways. One
way is through the criminal justice system, as when one is charged and found
not guilty of a crime by reason of insanity and is required to have treatment for the illness. Another way that an individual can become admitted to a mental
health facility is through civil commitment proceedings. Most states have two
categories of admissions: voluntary and involuntary (Swenson, 1997; Brent,
1984; Schwitzgebel & Schwitzgebel, 1980).
Voluntary Commitment
Although voluntary admissions are included as a type of civil commitment category,
it is the individual and not the civil authority that determines the need
for treatment. It is also the individual who signs himself or herself into the facility
(at least in theory). As in general hospitals, the individual who voluntarily
admits himself or herself to a mental health facility is free to leave at any
time. In either case, the individual may be required to sign a statement that he
or she is leaving against medical advice if the attending physician disagrees with
the discharge of the individual for medical reasons. The time required for a
mental hospital to physically release an individual after request for discharge has
been made varies, and during that time commitment proceedings to challenge
the individual’s release may be instigated. In actual practice, voluntary admission
and release may not be as benign as they appear.
Involuntary Commitment
The second category of civil commitment procedure in most states is involuntary
commitment. There are usually two types of involuntary detention and/or
commitment: emergency and court ordered. Procedures and terminology can
vary greatly from state to state and even county to county within some states.
Emergency detention or temporary commitment of another individual may be
sought by a concerned party (police, mental health professional, or other third
party) by alleging that the individual is in need of treatment and is a danger to
self or others. Usually the requirements for emergency detention or commitment
include having the person examined within a specified amount of time by
one or two physicians who certify that there is a need for emergency hospitalization.
In addition, the individual may only be held for a limited amount of
time under an emergency commitment prior to a preliminary hearing. The
preliminary hearing is required to determine whether there is probable cause
for the continued detention of the individual. Prior to the hearing, the detained
individual must be given notice of his or her rights under the law. The individual
has the right to legal counsel; however, other procedural details vary
from state to state.
Commitment by Court Order
The second type of involuntary commitment is court ordered. The courts have
ruled that mental illness alone is not a sufficient condition for involuntary civil
commitment. Most state statutes typically require that a person be mentally ill
and meet at least one of the following minimum conditions: (a) represent a
danger to self or others if allowed to remain at liberty; (b) present a probability or likelihood of serious harm to self or others; (c) be gravely disabled so as to
be unable to provide for his or her basic physical needs; (d) lack sufficient insight
or capacity to make responsible decisions regarding hospitalization;
and/or (e) be in need of care and treatment in a hospital.
Formal commitment procedures (Brent, 1984; Schwitzgebel and Schwitzgebel,
1980; Swenson, 1997) usually begin with a concerned person other than
the individual in question petitioning the court for an examination of a supposedly
mentally ill person. The supposedly mentally ill individual must physically
be in the county where the petition is signed, but neither the petitioner
nor the individual in question need be a resident of the county. The petition
goes to a judge who determines if the individual in question is possibly mentally
ill and in need of intervention of some type. A court-ordered examination
need not result in immediate detention of the allegedly mentally ill individual.
The court’s options are basically two: one is to notify the individual of an order
of examination; the other option is to issue an order of protective custody. Individuals
not judged to be a danger to self or others and capable of providing
for their physical needs may be allowed to stay at home until a determination is
made as to their need for hospitalization. However, if the individual is judged
a danger to self or others and/or unable to provide for their physical needs then
an order for protective custody and emergency admission may be ordered.
A police officer, sheriff ’s deputy, or mental health worker must personally
serve the individual with the petition and court order. Within a specified
amount of time, the individual must be examined and determination made as to
their need for treatment. The court then holds a hearing to determine whether
or not the individual is in need of treatment and/or involuntary hospitalization.
RELEASE FROM CONFINEMENT
OR DISCHARGE
When the mentally ill individual recovers from the illness, he or she has the
right to be released. These rights are usually described in the state’s mental
health statutes that cover patient’s rights to release or discharge in voluntary and
involuntary situations. Recall that individuals admitted under voluntary conditions
must also be released upon request within the time period provided by
state statute. Individuals who are involuntarily admitted have more restrictions
placed on them in terms of discharge. It is up to the court to determine
whether or not the individual is in need of continued confinement. This determination
is made based on feedback from the treating physician.
Individuals involuntarily confined may contest their confinement legally
through a Writ of Habeas Corpus (Swenson, 1997; Schwitzgebel & Schwitzgebel,
1980). The writ is used to obtain a judicial determination of the legal
grounds of continued treatment. It requires immediate review and determination
by the court, and if support for continued confinement is not substantiated,
the individual must be released. Counseling professionals have both an ethical and legal obligation to protect
the rights of clients they serve. Often the client will not be fully aware of
his or her rights and therefore is particularly vulnerable. As a professional, one
has the responsibility to make appropriate disclosures to clients with regard to
their rights. Failure to act judiciously with regard to clients’ rights may result in
liability for negligence or malpractice.
MALPRACTICE
Malpractice may be defined as the negligent (or otherwise improper) performance,
by a professional person, of the duties that are incumbent upon him or
her by reason of a professional relationship with a client (Cochran’s Law Lexicon,
1973, p. 189). Negligence may be defined as conduct that falls below the standard
established by law for the protection of others against unreasonably great
risk or harm. Four elements must be present to constitute malpractice litigation:
(a) a duty on the part of the practitioner, (b) a breach of that duty, (c) actual
loss or injury, and (d) a causal relationship between the breach of duty and
the resultant injury (Swenson, 1997; Schwitzgebel & Schwitzgebel, 1980).
Additionally, there must be an expressed or implied professional relationship
between the counseling professional and the client resulting in the counselor
having a duty to the client. The conduct or behavior of the counseling professional
must fall below the acceptable general professional standards resulting in
a breach of duty. Some examples of breach of duty are improper diagnosis, violation
of confidentiality, liability for suicide or homicide, and failure to supervise
properly. Negative effects or injury resulting from the practitioner’s neglect
may include exacerbation of symptoms (depression), appearance of new symptoms,
or other related maladies. The injury or loss incurred by the client must
be a direct result of the practitioner’s action or inaction.
Ethical responsibilities and legal responsibilities often intertwine and neither
can be ignored. One of the best and most effective ways to protect yourself
against malpractice is to practice ethically and keep informed about changes in
the law that affect your discipline.
SUMMARY
As professions come forth and develop, they take on certain responsibilities designed
to safeguard and strengthen their service to the public and at the same
time protect and amplify the profession itself. Ethical and legal guidelines are
prerequisites to credibility and are central to deserving the public trust. The
ethical and legal issues and responsibilities are complex and intertwined. What
is ethical may not always be lawful and what is lawful may not always be ethical.
However, laws may become necessary in order to give [enforceable] status
to professional ethical standards. As is most often the case, ethical responsibilities
equate with legal responsibilities; neither can be ignored.
