250 word discussion for ethics in human services

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.

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