During the third session of counseling, a 30-year-old client reported that he was gay and stated that he no longer wanted to follow this lifestyle. He wanted to participate in conversion therapy so that he no longer felt an attraction to men. His goal was to become attracted to a woman and have a traditional marriage with children.

At the suggestion of a friend, the client read about reparative/conversion therapy and researched the approach on the Internet. Even after his research, he was convinced this is the route he wants to take.

The counselor listened and asked questions in a clinically appropriate manner. The counselor informed the client that although she felt that she could be effective in counseling with him, she could not ethically engage in reparative/conversion therapy and felt it would not be effective in reaching his desired goals. She explained that she could find no scientific evidence or support for the approach; she even consulted her association, who advised her that it was not a supported form of therapy. The client understood but indicated he was disappointed that the counselor could not help him through that type of counseling.

He then asked for a referral to another counselor or therapist who would help him change his sexual orientation and reach his goals. Ethical question: Should the counselor make a referral for conversion therapy?

A professional artist complained to an ethics committee that his therapist's actions caused him stress and anxiety when she did not carry out her promises. The therapist had treated the artist for over one year, during which time the therapist complimented the client's artwork, attended art shows with him, and promised to introduce her art gallery contacts to her client. The client stated he began to feel so self-confident that he terminated therapy and expected the therapist's interest in his career to continue. The therapist stopped returning the ex-client's phone calls, which left the client frantic. An ethics committee contacted the therapist. She explained that she always provided unconditional positive regard to her clients; however, since this particular individual was no longer a client, she felt no further obligation to him.

Analysis

The ethics committee found in favor of the client. They determined that the therapist had maintained a dual relationship by combining their professional and private lives outside of counseling together. This caused confusion and harm to the client, and the therapist did nothing to resolve the client's distress and dependency and chose to ignore him, which increased his anxiety.

The therapist and her ex-client decided they would become friends because the past therapeutic relationship was very harmonious. A month into the friendship, the ex-client perceived that the therapist was controlling and overbearing in their new relationship. He then questioned the therapist's overall competence and stability, to the point of distancing himself from the post-therapeutic friendship. The ex-client decided that the therapist had caused him to feel exploited, hurt, and confused. He then consulted another therapist who advised him to press charges against the previous therapist.

Analysis

An ethics committee determined that incompetence could not be conclusively proven; however, both the complainant and respondent were surprised by the findings of a dual role violation.

The investigation uncovered that the therapist planned their developing relationship and a longer-term continuation while the client was still in active therapy. The therapist had actually presented these facts as a defense against the client's accusations.

This case shows how personas may change from one context to another, and the resulting change may be viewed as negative. The client responded well to the therapist's authoritative personality in therapy but not in a social context. This case shows the problems that occur when personal and professional boundaries are crossed and the resulting ethical issue that harmed both client and counselor.

A counselor provided services to a man with anxiety that adversely affected his work and personal life. He eventually lost his job and his health insurance due to his anxiety. The counselor agreed to hire the client to do maintenance on his house and yard work to help him earn some money while he looked for a job. The counselor paid him minimum wage but continued the counseling sessions at no charge. A month later, the man attempted suicide and was admitted to an inpatient mental health facility. He was assigned to a psychiatrist who learned of the exchange of work for counseling services. The psychiatrist questioned the ethics of the relationship and considered it a boundary violation and an inappropriate dual relationship that caused harm to the client. He reported it to the state licensing board, and they opened an investigation.

Analysis

The therapist was not paying the fair market value for the labor being performed, so the relationship was not a beneficial one for the client, even though he was able to continue counseling for free. The quality and the effectiveness of the counseling services were called into question in light of the firing and subsequent suicide attempt.

The ethics committee ruled in favor of the client.

Professional liability insurance policies may exclude coverage pertaining to business relationships with clients. Liability insurance carriers may view bartering arrangements between mental health professionals and clients as business relationships and therefore refuse to defend a covered therapist if complications arise in therapy that leads to litigation. Bartering arrangements have the potential for client exploitation, impaired professional judgement and objectivity, conflicts of interest, damage to the therapeutic relationship, and unsatisfactory outcomes to both parties.

A therapist had delivered services to a client for two months and felt an attraction to her. He decided to invite her to go with him to a presentation on autism because her nephew had been recently diagnosed with the disorder. The client believed that it was not a date but rather an educational event, so she accepted. After the lecture, they went to dinner at the invitation of the therapist.

When the client went to the next therapy session, she was given a DVD for the nephew that was produced by the speaker from the presentation. Following a subsequent therapy session, they again went to dinner, and after a few drinks, they returned to the client's house, where they engaged in sexual intercourse. The relationship continued for a month and ended when the therapist started dating a previous girlfriend again.

The client was hurt and angry. She ended the therapy sessions and brought a malpractice suit against the therapist on the grounds that he was unprofessional and that the relationship violated professional boundaries. She claimed that the relationship caused her such mental distress that she was unable to sleep, which subsequently affected her work. The review board ruled in favor of the client and awarded a large damage award as a result of her civil malpractice complaint.

Analysis

The therapist has the burden of proving that no exploitation took place in relation to the client's mental status and severity of their presenting issues, the ability to comprehend the risk, a level of independence, and the autonomy to act in their best interest. As a professional with inherent power in the relationship due to the potential to coerce or influence a client, therapists may have difficulty defending themselves against a claim of sexual misconduct Any diagnosis, such as depression, previous abuse, or various personality or emotional disorders, suggests vulnerability or susceptibility to exploitation and would influence the case against a therapist The therapist or counselor must, in all ways, put the client's welfare above his or her own. Sexual relationships with current, former, or potential clients are always an ethical violation.

M.K. was a 15-year-old client of a New Jersey psychiatrist for two years. The client was open with the therapist about his use of illegal drugs and his violent thoughts about a fantasy to threaten people with a knife to control and rob them. He also told the therapist about his sexual relationship with a 20-year-old neighbor. It was clear that he had a strong emotional attachment to the young woman; however, M.K. often expressed his anger and jealousy that the woman was dating other men.

The therapist observed that M.K. showed symptoms of severe anxiety when he spoke of the woman. In a subsequent session, M.K. told the therapist that he once fired a BB gun at her car as she drove by his house.

M.K. stole a prescription pad from the therapist and attempted to forge his signature in an attempt to purchase 30 Xanax pills. The pharmacist noticed that M.K. was acting suspiciously and, because of his age, called the therapist. The therapist told the pharmacist to disregard the prescription, and M.K. went home. He later stole a gun and shot the young woman to death.

The therapist had attempted to reach M.K. by phone to discuss the stolen prescription forms but did not reach him before the woman was shot. The woman's father had heard of the Tarasoff case, and the family hired an attorney to bring a civil suit against the therapist. The suit charged him with the wrongful death of their daughter and his failure to warn and protect her.

The therapist hired an attorney who argued to dismiss the suit claiming that the Tarasoff principle should not apply in New Jersey based on the following:

Analysis

The court rejected all these arguments and declined to dismiss this case. The court instead ruled that the duty to warn is valid under New Jersey law. The court decision stated that even though therapists could not be expected to accurately predict danger or harm in 100 percent of the situations, they have the ability to make a professional judgment in the relationships of the client with others. This therapist observed several warning signs, and the client's own statements and actions of a violent nature should have provided the therapist with enough evidence to decide that a warning concerning the potential of danger was in order.

The court made an analogy and compared the situation with the responsibility to warn communities and individuals about carriers of a contagious disease. The court stated that the client/therapist confidentiality must be secondary to the greater welfare of the community. In cases of imminent or potential danger, the therapist has the duty to warn. The therapist faced the jury and was not held liable for damages, but the Tarasoff principle of duty to warn and protect was adopted in New Jersey.

A PhD and marriage and family therapist (MFT) had treated a client, a former policeman, for three years. The therapy centered on work-related injuries and the breakup of a 17-year relationship with a woman who began to date someone else. The client allegedly told the therapist that he was having suicidal thoughts in early June. The therapist recommended hospitalization and asked for permission to speak with the client's father. The father told the therapist that his son was deeply depressed, had lost his desire to live, and had mentioned harming the man his former girlfriend was currently dating.

The client checked himself into the hospital as a voluntary patient on June 17. The therapist received a phone call from the client's father the next morning stating that the hospital would soon release his son. The therapist then called the admitting physician and urged him to maintain the client's hospitalization for further observation through the weekend. The psychiatrist disagreed and released the client. The client did not contact his therapist after he was released from the hospital.

No one from the hospital contacted the therapist after releasing the client. On June 23, the client shot the boyfriend of his ex-partner and then killed himself with the same handgun.

The parents of the new boyfriend filed a wrongful death lawsuit and named the therapist as one of the defendants. The lawsuit claimed the therapist had a duty to warn their son of the risk from the client. A judge dismissed the case against the therapist, who asserted that his client did not disclose a threat to the new boyfriend directly to him.

Ultimately, the California Court of Appeals reinstated the case, explaining, "When the communication of a serious threat of physical harm is received by a therapist from the patient's immediate family and is shared for the purpose of facilitating and furthering the patient's treatment, the fact that the family member is not technically the patient is not crucial."

Analysis

The court expressed that psychotherapy does not occur in a vacuum and that for therapy to be effective, therapists must be aware of the context of a client's history and their personal relationships. The court advised that communications from clients' family members in the context comprised a "patient communication." Mental health professionals, however, must use caution when accepting the warnings of third parties, such as parents or spouses, who are emotionally involved as they may have ulterior motives. This ruling required that if the therapist determines that individuals have credible information, then that constitutes patient communication and necessitates the duty to warn.

D.C. battled cancer for many years and received the assistance of a counselor on several occasions. She did not have regularly scheduled sessions, but D.C. would consult the counselor when she faced medical issues and treatments that intensified her anxiety and depression.

During a planned surgery, there were complications, and D.C. had to be resuscitated. This left her in a coma on life support. Her physicians informed her family of the possibility that she would remain on life support and her prognosis for recovery was bleak, at best. Members of her family decided to approach the court for authorization to take D.C. off of life-support.

The family was instructed by the court to locate any information they could find that would shed some light on D.C.'s wishes concerning end-of-life issues. The family asked the counselor if any of the records from her counseling sessions might help to provide some guidance to the court concerning D.C.'s end of life plans in order to make decisions about her treatment. The counselor refused and decided to consult a colleague. The family turned to the court for an order to compel the counselor and the counselor's colleague to release all information and communication concerning D.C.'s end-of-life wishes. The courts issued a subpoena for all records and communications. The counselor eventually complied to avoid sanctions by the court.

Analysis

Family members have many reasons to seek access to the records of other family members. Some are legitimate; others have the potential to harm the client or lead to an ethical violation if mistakes are made in disclosing information to the wrong party.

In this situation, the client was incapacitated and could not make her wishes known. In these cases, the courts recognize a surviving line of consent as follows:

The ethics codes are clear that in cases with clients who are minors, or clients who meet criteria as legally incompetent, that parents or legal guardians will be given full access to records. Therapists must understand the complex nature of confidentiality, informed consent, and privacy when serving minors and their families. Even if a client is a minor or is incompetent to understand at the expected level, the therapist should make every attempt to communicate in a way that can be understood at their developmental or cognitive level.

The practitioner must be sensitive to the needs and feelings of these clients and must realize that the client may understand more than is readily apparent or may have an inability to respond. At the beginning of any counseling or therapeutic relationship, each member should receive information about confidentiality in the treatment relationship. A legal parent or guardian must be established before services begin so that the practitioner knows who may be contacted, consulted, and involved in the client's treatment.

Counselors and therapists may be reluctant to provide access to records and notes to clients, parents, and guardians because they may believe they will not understand or may misconstrue the information. Misunderstandings could cause harm to the client, impede the treatment plan, or result in a lawsuit. The ethics codes of the NBCC, AAMFT, and ACA provide guidelines concerning the rights of the client and the obligation of the provider in this area. When information is shared, the practitioner must take the time to be sure the client understands the information and must involve interpretation and explanation. Records should never be turned over to the client or guardian without a conference that includes all parties that have any legal authority to review the information so that the therapist or counselor can explain the contents and answer questions.

The laws that govern mandatory reporting of child abuse will always take precedence over client privilege laws in all states. In cases of child abuse or neglect, the therapist or the counselor may be compelled to testify in court for the welfare of the child.

The following case from the Alabama Supreme Court (Marks v. Tenbrunsel) demonstrates these important facts [31]:

Analysis

The court, after reviewing rulings in other cases, found when a person issues a report of child abuse or neglect in good faith, or is called to testify in the judicial process related to the report, the person would have "immunity from any liability, civil or criminal, that might otherwise be incurred or imposed."

The court stated, "because Marks admitted to the abuse of the two children the psychologists had reasonable causes to suspect that children were being abused and therefore were acting in good faith when they determined that a report should be made."

In the review of other cases, the court found decisions that the psychotherapist-client privilege was second to the child abuse reporting statute and that child abuse statutes, "vitiated the privilege and the therapist could be compelled to reveal the alleged sexual abuser's medical records in a civil action for damages."

The court found, in most cases, that the child abuse reporting statute abrogates a privilege that may otherwise be applicable with respect to proceedings involving child abuse or neglect.

Some states allow information in the report of child abuse to be disclosed, along with all other privileged information; others simply act on the fact that the report was made and substantiated in these cases of privilege brought against the therapist or counselor. For prosecution of the alleged abuser, all privileged information would be discovered.

In situations of child custody, there are a number of positions of privilege taken by the courts depending on the jurisdiction. Some courts will deny privilege to allow every piece of information to be reviewed to make the best possible custody decision. Some courts will strictly adhere to rulings of privilege. The courts will have to resolve any conflicts that may result based on these two positions and the circumstances of each case.

In cases of custody disputes, the mental health of one or both parents and the effects that this may have on the child may come into question. The court will decide based on the particular evidence regarding the mental health of the parents or the child. Again, states vary on their positions of privilege in these cases depending on the severity of the mental health issues of the parents or child. Today, states recognize privilege in the relationships of clients and mental health practitioners. Counselors and therapists should consult state statutes or case law in the state of their licensure and/or jurisdiction of practice to be familiar with the concept of privilege in their state.

J.D. is a licensed MFT who found herself in an ethical dilemma when faced with a court order to release certain client records from her files. J.D. refused to release treatment notes as ordered by the courts as part of a custody dispute involving a young client. She believed that there were two exceptions to the confidentiality and client privilege, including knowledge of child abuse or if the client threatens suicide or homicide.

J.D. stated that the notes were sometimes just phrases of her interpretations, thoughts, and topics to refresh her memory and would not be understood by anyone but herself. She believed that it was unethical to disclose her notes and decided to provide only a general summary. The attorney brought the summary to the judge who issued an order for the complete set of notes, but J.D. decided to defy the court order.

J.D. was arrested and fined $2,000 on a contempt charge, which cost her $900 in bail in lieu of being incarcerated. In the end, J.D. decided to disclose the notes to the court.

Analysis

J.D.'s personal views and her misinterpretation of the AAMFT's Code of Ethics point to a lack of understanding in many areas. Here are the key features:

If the therapist is ordered to testify and the client requests that the therapist should not disclose privileged information, the therapist may explain to the court the possible harm to the therapeutic relationship if a disclosure is made. If the judge requires the therapist to testify, they should disclose only the information related to the request. Under court order, the counselor or therapist is not in violation of privacy rules or privilege because they are complying with the judge's order. The court order is defense against any charge of ethical wrongdoing if the counselor is later sued over a breach of confidentiality.