A recently licensed therapist, Joy, observes that many of her colleagues suffer from burnout. ?She decides to prevent this from happening to her. ?

Chapter 5

Client Rights and Counselor Responsibilities

Introduction To practice in an ethical and legal manner, the rights of clients are paramount. In this chapter we deal with ways of educating clients about their rights and respon- sibilities as partners in the therapeutic process. Special attention is given to the role of informed consent and to the ethical and legal issues that arise when therapists fail to provide sufficient informed consent. We also deal with some of the ethical and legal issues involved in counseling children and adolescents and in counseling involuntary clients. Part of ethical practice is talking with clients about their rights. Clients are not always aware of their rights, and they may find the therapeutic process mysteri- ous. Vulnerable and sometimes desperate for help, clients may unquestioningly accept whatever their therapist says or does. Clients may see their therapist much like they see their physician and expect the therapist to have an accurate diagno- sis and an immediate solution to their problem. For most people the therapeutic situation is a new one, and they may not realize that the therapist’s duty is to help clients find their own solutions. The therapeutic process involves a collaborative endeavor in which a therapist and a client form a partnership to attain goals the client has chosen. For these reasons, the therapist is held responsible for protecting clients’ rights and teaching clients about these rights. The ethics codes of most pro- fessional organizations require that clients be given adequate information to make informed choices about entering and continuing the client–therapist relationship (see the Ethics Codes box titled “The Rights of Clients and Informed Consent” for examples from several ethics codes). By alerting clients to their rights and respon- sibilities, the practitioner is encouraging a sense of autonomy and personal power. Therapists also protect themselves from ethics complaints by informing clients of their rights and responsibilities. 150 / chapter 5 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Ethics codEs: The Rights of Clients and Informed Consent American Psychological Association (2010) (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers. (b) When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation. (10.01) National Association of Social Workers (2008) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should Ethics codEs: The Rights of Clients and Informed Consent continued use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions. (1.03.a.) American Counseling Association (2014) Counselors explicitly address with clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of a counselor; the role of technology; and other pertinent information. Counselors take steps to insure that clients understand the implications of diagnosis, and the intended use of tests and reports. Additionally, counselors inform clients about fees, and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits (including how supervisors and/or treatment or interdisciplinary team professionals are involved), to obtain clear information about their records, to participate in the ongoing counseling plans, and to refuse any services or modality change and to be advised of the consequences of such refusal. (A.2.b.) Code of Professional Ethics for Rehabilitation Counselors (CRCC, 2010) Rehabilitation counselors recognize that clients have the freedom to choose whether to enter into or remain in a rehabilitation counseling relationship. Rehabilitation counselors respect the rights of clients to participate in ongoing rehabilitation counseling planning and to make decisions to refuse any services or modality changes, while also ensuring that clients are advised of the consequences of such refusal. Rehabilitation counselors recognize that clients need information to make an informed decision regarding services and that professional disclosure is required in order for informed consent to be an ongoing part of the rehabilitation counseling process. Rehabilitation counselors appropriately document discussions of disclosure and informed consent throughout the rehabilitation counseling relationship. (A.3.b.) The American Mental Health Counselors Association (2015) Mental health counselors provide information that allows clients to make an informed choice when selecting a provider. Such information includes but is not limited to: counselor credentials, issues of confidentiality, the use of tests and inventories, diagnosis, reports, billing, and therapeutic process. Restrictions that limit clients’ autonomy are fully explained. (I.B.2.a.) American Association for Marriage and Family Therapy (2015) Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. (1.2.) In addition to the ethical aspects of safeguarding clients’ rights, legal param- eters also govern professional practice. When we attend continuing education workshops on ethics in clinical practice, the focus is often on legal matters and risk management. Practitioners express their fears of lawsuits and are eager to learn risk management strategies that will protect them from malpractice. These concerns are realistic but need to be kept in perspective. Our emphasis should be on both nonmaleficence (avoiding doing harm) and beneficence (doing what is best for the client). Pope (2015) relates this idea specifically to record keeping. He asserts that practicing defensive record keeping—that is, making risk management one’s primary focus in record keeping and in other areas of practice—may lead clinicians to lose sight of their ethical and clinical responsibilities. When we act in the best interest of the client and can demonstrate this through a process of consultation and documentation, we are less likely to be sanctioned for ethical or legal violations. Counseling can be a risky venture, and you must be familiar with the laws that govern professional practice. However, we hope you will avoid becoming so involved in legalities that you lose sight of the ethical and clinical implications of what you do with your clients. You will surely want to protect yourself legally, but not to the point that you immobilize yourself and inhibit your professional effectiveness. LO1 The Client’s Right to Give Informed Consent The first step in protecting the rights of clients is the informed consent docu- ment. Informed consent involves the right of clients to be informed about their therapy and to make autonomous decisions pertaining to it. Informed consent is a shared decision-making process in which a practitioner provides adequate information so that a potential client can make an informed decision about par- ticipating in the professional relationship (Barnett, Wise, Johnson-Greene, & Bucky, 2007). Informed consent is both an ethical and a legal obligation of the cli- nician, and providing information to clients is also a good quality enhancement strategy. Attending to informed consent not only meets legal and ethical stan- dards but represents excellent clinical care as well (Knapp et al., 2015). Informed consent for treatment is a powerful clinical, legal, and ethical tool (Wheeler & Bertram, 2015). Mental health professionals are required by their ethics codes to disclose to clients the risks, benefits, and alternatives to proposed treatment. The intent of an informed consent document is to define boundaries and clarify the nature of the basic counseling relationship between the counselor and the client. One benefit of informed consent is that it increases the chances that clients will become actively involved, educated, and willing participants in the assessment process and in their therapy. When clients understand what is expected of them to get positive results from therapy, the therapeutic alliance is enhanced. It may not be possible or clin- ically appropriate to discuss informed consent in great detail at the first session due to the emotional state of a client. Dealing with a client’s crisis takes precedence over a discussion of informed consent, but informed consent must be addressed as soon as it is clinically appropriate. It is crucial that topics such as the limits of confidentiality be explained at the first session, even in crisis cases. If this is not done and the client discloses a matter that must be reported, the therapist may face both legal and ethical problems. Most professionals agree that it is crucial to provide clients with information about the therapeutic relationship, but the manner in which this is done in practice varies considerably among therapists. It is a mistake to overwhelm clients with too much detailed information at once, but it is also a mistake to withhold important information that clients need if they are to make wise choices about their therapy. The counselor must strike a balance between providing necessary information to the client and attending to the emotional state of the client. Professionals have a responsibility to their clients to make reasonable disclo- sure of all significant facts, the nature of the procedure, and some of the more possible consequences and difficulties. Clients have the right to have treatment explained to them. The process of therapy is not so mysterious that it cannot be explained in a way that clients can comprehend how it works. For instance, most residential addictions treatment programs require that patients accept the existence of a power higher than themselves. This “higher power” is defined by the patient, not by the treatment program. Before individuals agree to entering treatment, they have a right to know this requirement. It is important that clients give their consent with understanding. Professionals need to avoid subtly coercing clients to cooperate with a therapy program to which they are not freely consenting. It is the responsibility of professionals to assess the client’s level of understanding and to promote the client’s free choice. In doing so therapists can model a social justice perspective for clients, many of whom may experience oppression and discrimina- tion. If informed consent procedures are implemented properly, open exchanges between therapists and clients are promoted that may result in empowered col- laboration, or shared decision making (Knapp & VandeCreek, 2012). Clients are empowered when they are educated about their rights and responsibilities in the therapeutic process. Legal Aspects of Informed Consent Generally, informed consent requires that the client understands the information presented, gives consent voluntarily, and is competent to give consent to treat- ment (Wheeler & Bertram, 2015). Therapists must give clients information in a clear way and check to see that they understand it. Disclosures should be given in simple language in a culturally sensitive manner and must be understandable to clients. To give valid consent, it is necessary for clients to have adequate informa- tion about both the therapy procedures and the possible consequences. Educating Clients About Informed Consent A good foundation for a therapeutic alliance is for therapists to employ an edu- cational approach, encouraging clients’ questions about assessment or treatment and offering useful feedback as the treatment process progresses. Here are some questions therapists and clients should address at the outset of the therapeutic relationship: • What are the goals of the therapeutic endeavor? • What are the potential risks and benefits of counseling? • What services will the counselor provide? • What are the techniques, procedures, and potential benefits and risks of the services provided? • What is expected of the client? • What is the practitioner’s approach to counseling? • What are the qualifications of the provider of services? • What professional experience does the counselor have with the client’s problem? • What are the financial arrangements? • To what extent is the clinician available between sessions? • How does the clinician handle missed appointments without notification? • To what extent can the duration of therapy be predicted? • What are the procedures for managing crises or severe emotional distress after hours? • What are the limitations of confidentiality? • In what situations does the practitioner have mandatory reporting requirements? A basic part of the informed consent process involves giving clients an oppor- tunity to raise questions and to explore their expectations of counseling. We rec- ommend viewing clients as partners with their therapists in the sense that they are involved as fully as possible in each aspect of therapy. Practitioners cannot presume that clients clearly understand what they are told initially about the ther- apeutic process. Furthermore, informed consent is not easily completed in the initial session by asking clients to sign forms. The Canadian Code of Ethics for Psy- chologists (CPA, 2015) states that informed consent involves a process of reaching an agreement to work collaboratively rather than simply having a consent form signed (Section 1.17). The more clients know about how therapy works, including the roles of both client and therapist, the more clients will benefit from the therapeutic experience. Most of the codes of ethics make it clear that educating clients about the therapeu- tic process is an ongoing endeavor. Informed consent is not a single event; rather, it is best viewed as a process that continues for the duration of the professional rela- tionship as issues and questions arise (Barnett & Johnson, 2015; Pope & Vasquez, 2016; Wheeler & Bertram, 2015). Clients may not feel empowered to challenge their counselor, especially in the beginning stages of treatment, due to cultural beliefs, attitudes about author- ity, or feelings of intimidation. At the beginning of the informed consent process, therapists have an opportunity to join with their clients and engage with them in forming a working alliance through the process of informed consent. This is the time to explain to clients how they can become the experts on their own lives and the implications of this at all stages of treatment. Issues of power and control can be central in the therapy process, especially in the case of clients who have been victimized. The informed consent process can help to minimize the power differential. The process of informing clients about therapy is geared toward making the client–therapist relationship a collaborative partnership, which is basic to effective therapy. Informed Consent and Managed Care Practitioners are ethically bound to offer the best quality of service available, and clients have a right to know that managed care programs, with their focus on cost containment, may influence the quality of care available. Clinicians are expected to provide prospective clients with clear information about the benefits to which they are entitled and the limits of treatment. Informed consent forms should state that the managed care company may request a client’s diagnosis, results of any tests given, a wide range of clinical information, treatment plans, and perhaps even the entire clinical record of a client. Clinicians who work in a managed care system are ethically bound to inform clients about policies that could affect them before they enter into a therapeutic relationship. Braun and Cox (2005) recommend that clinicians inform clients about the lim- its of confidentiality and the potential repercussions of disclosing personal infor- mation to insurance providers. Clients need to understand that some services may not be covered under their insurance plans and “that the insurance plan and utilization review direct the type and length of treatment received, and that payment for treatment might be terminated before the client and/or the coun- selor believe(s) the goals of therapy have been achieved” (p. 430). Counselors under any managed care contracts should be aware of their obligations and offer acceptable alternatives to clients during the informed consent process (Nancy Wheeler, personal communication, June 28, 2016). Counselors should include a statement about the client’s ultimate responsibility for payment in case the insur- ance does not cover the services provided (Maureen Kenny, personal communi- cation, September 25, 2016). Informed Consent in Private Practice and Agency Settings How do practitioners assist clients in becoming informed partners? Pomerantz and Handelsman (2004) state that clients have a right to know what the therapy process entails because they are buying a service from a professional. Some of the topics they have developed include a series of questions pertaining to what therapy is and how it works, the clinician’s approach, alternatives, appointments, confidentiality, fees, procedures for filing for insurance reimbursement, and poli- cies pertaining to managed care. Pomerantz and Handelsman believe that an open discussion of a wide range of questions about the therapy process enhances the therapeutic alliance and lays the groundwork for a relationship based on empow- erment through information. Best practice involves providing information about the therapeutic process to clients both verbally and in writing. A written consent form can augment ver- bal informed consent discussions. In many agencies, clients read and sign the informed consent form. It is a good practice for clinicians to document that they reviewed the written form with clients and answered client questions. In general, client misunderstanding is reduced through the effective use of informed con- sent procedures. An adequate informed consent process also tends to reduce the chances a client will file a liability claim. Both the practitioner and the client benefit from this practice. We have emphasized the importance of the therapist’s role in teaching clients about informed consent and encouraging clients’ questions about the therapeutic process. With this general concept in mind, put yourself in the counselor’s place in the following case. Identify the main ethical issues in this case, and think about what you would do in this situation. the case of Kiara at the initial interview the therapist, Kiara, does not provide an informed consent form and touches only briefly on the process of therapy. in discussing confidentiality, she states that whatever is said in the office will stay in the office, with no mention of the limitations of con- fidentiality. three months into the therapy, the client exhibits some suicidal ideation. Kiara has recently attended a conference at which malpractice was one of the topics of discussion, and she worries that she may have been remiss in not providing her client with adequate informa- tion about her services, including confidentiality and its limitations. she hastily reproduces an informed consent document that she received at the conference and asks her client to sign the form at the next session. this procedure seems to evoke confusion in the client, and he makes no further mention of suicide. after a few more sessions, he calls in to cancel an appointment and does not schedule another appointment. Kiara does not pursue the case further. • • • What are the ethical and legal implications of the therapist’s practice? explain your position. if you had been in Kiara’s situation, what could you have done? Would you have contacted this client after he canceled? Why or why not? What are your thoughts about Kiara not doing that? Commentary. this case illustrates the absolute importance of making sure the informed con- sent process is attended to from the outset of therapy. if we only address critical issues when they arise, clients may be justifiably angry and the quality of the therapeutic relationship may be jeopardized. Unfortunately, Kiara focused solely on her own interests in this case, and her actions may have placed her at greater risk of legal action. the belated use of an informed consent form and Kiara’s willingness to allow the client to terminate abruptly do not enhance the client’s best interests or protect him from harm. When this client canceled the appointment, Kiara had an ethical responsibility to pursue the matter to determine whether he had termi- nated therapy because of her belated attention to the informed consent process. • Consider the following case as you think about your personal stance on what you might include in your informed consent document regarding your personal beliefs and values. the case of derik Derik is a counselor in a community agency setting, and he has strong religious beliefs. he is open about this in his professional disclosure statement, explaining that his religious beliefs play a major part in his personal and professional life. aida comes to Derik for counseling regarding what she considers to be a disintegrating marriage. Derik has strong convictions about preserving the family unit. after going through an explanation of the informed consent document, Derik asks aida if she is willing to join him in a prayer for the successful outcome of the therapy and for the preservation of the family. Derik then takes a history and assures aida that everything can be worked out. he adds that he would like to include aida’s husband in the sessions. aida leaves and does not return. • Do you see any potential ethical violations on Derik’s part? • if Derik came to you for consultation, what would you say to him? • is it ever appropriate to include your personal values and beliefs in the informed consent process? Do clients have a right to know your personal values? if a client asks you about your personal values or beliefs, how would you respond? how might knowing your values help or hinder your client’s work with you? Commentary. We have some concerns with Derik’s approach to aida. he does not assess the client’s state of mind, her religious convictions, if any, the strength of her convictions, or her degree of comfort with his approach. aida may have felt pressured to agree with him in this first session, or she may not have deemed it appropriate to disagree openly. We question whether aida is able to give truly informed consent under these circumstances. it is not appro- priate for the therapist to introduce prayer into the session, even though he tells clients that this is part of his philosophy. if this is important to aida, it would be her place to introduce prayer in the session. the ethical issue is captured in this question: “Did Derik take care of the client’s needs, or did he take care of his own needs at aida’s expense?” Keep in mind that providing clear informed consent about one’s convictions does not relieve counselors of the duty to respect clients’ cultural traditions—including religious beliefs—and the prohibition regarding imposing one’s values on clients. • LO2 The Content of Informed Consent One of the main aims of the first meeting is to establish rapport and create a cli- mate of safety in the therapeutic situation. Realizing that informed consent is an ongoing process, the challenge is to provide clients with the right amount of infor- mation at this session for them to make informed choices. The types and amounts of information, the specific content of informed consent, the style of presenting information, and the timing of introducing this information must be considered within the context of state licensure requirements, work setting, agency policies, the specific population being served, and the nature of the client’s concerns. Coun- selors practicing online must pay careful attention to informed consent. The role and place of technology and social media must be discussed at the earliest stage of therapy (Wilcoxon, 2015). There is no assurance that practitioners can avoid legal action, even if they do obtain written informed consent. Rather than focusing on legalistic documents, we suggest that you develop informed consent procedures that stress client understanding and foster client–counselor dialogue within the therapeutic partnership. Topics selected for discussion during early counseling sessions are best guided by the concerns, interests, and questions of the client. Although it is essen- tial to review informed consent with clients in the initial sessions, doing so only at this time is not adequate. Clients are often anxious during their first sessions and are likely to miss important details. As concerns arise in therapy, clients can be informed about the key aspects of the informed consent process and invited to discuss relevant topics. Let’s examine in more detail some of the topics about which clients should be informed. The Therapeutic Process It may be difficult to give clients a detailed description of what occurs in their therapy, but some general ideas can be explored. We support the practice of letting clients know that counseling might open up levels of awareness that could cause pain and anxiety. Clients who require long-term therapy need to know that they may experience changes that could produce disruptions and turmoil in their lives. Some clients may choose to settle for a limited knowledge of themselves rather than risk this kind of disruption, and this should be explored but also respected. We believe it is appropriate to use the initial sessions for a frank discussion of how change happens. Clients should understand the procedures and goals of therapy and know that they have the right to refuse to participate in certain therapeutic techniques. For a further discussion of change processes in therapy, an excellent book from a research perspective is The Heart & Soul of Change: Delivering What Works in Ther- apy by Duncan, Miller, Wampold, and Hubble (2010). Assessment of a Client’s Background It is a good practice to inform clients about the assessment process. Therapists ask many questions of clients during the intake session and the assessment process, and clients are more likely to cooperate in providing honest infor- mation if they know why they are being questioned. This first session is dif- ferent from others in that the client is being asked more questions than usual to obtain a quality assessment. This assessment often includes areas typically influencing the quality of life, such as family of origin, culture, divorce, sub- stance abuse, immigration status, traumatic events, and religious and spiritual background. Such questioning may reveal areas of a client’s life that shed light on the presenting problem, identifying areas for potential exploration during the therapy process. Background of the Therapist Therapists can provide clients with a description of their training and educa- tion, their credentials, licenses, any specialized skills, their theoretical orienta- tion, and the types of problems that are beyond the scope of their competence. State licensure boards often make giving this information a legal requirement. If the counseling will be done by an intern or a paraprofessional, clients must be made aware of this fact. Likewise, if the provider will be working with a supervisor, this fact should be made known to the client. This description of the practitioner’s qualifications, coupled with a willingness to answer any questions clients have about the process, reduces the unrealistic expectations clients may have about therapy; it also reduces the chances of complaints to a licensing board and malpractice actions (Nancy Wheeler, personal communi- cation, June 28, 2016). Costs Involved in Therapy All costs involved in counseling or psychological services, including methods of payment, must be provided at the beginning of these services. A therapist’s pol- icy on charging for missed appointments or late cancellations should be clearly stated. Clients need to be informed about how insurance reimbursement will be taken care of and any limitations of their health plan with respect to fees. If fees are subject to change, this should be made clear in the beginning, preferably both verbally and in writing. Most ethics codes have a standard pertaining to establishing fees. Matters of finance are delicate and, if handled poorly, can lead to problems. Clark and Sims (2014) note that the topic of setting and collecting fees tends to be difficult for some practitioners, especially those struggling with their beliefs regarding their self-worth, their sense of competency, and the value of the therapy services they offer. Practitioners new to the profession often experience a sense that they do not deserve the fees they are receiving. Family-of-origin issues also may influence therapists’ comfort levels in discussing fees. Clark and Sims point out that thera- pists who were raised to put others’ needs before their own or who were taught that discussing finances was impolite may be hesitant to broach the issue of fees because doing so is embarrassing and uncomfortable. In establishing fees, practitioners might consider a fee range that is com- monly accepted in a given community. It is best practice to come to an agreement on fees at the beginning of a professional relationship. Matters of fees should

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