The law would seem to affect the counsellor predominantly over issues of confidentiality which cause ethical dilemmas in a variety of areas. It would seem the counsellor tends to end up torn between their responsibility towards their clients and the law or doctors/other health officials/organisations and society in general. The counsellor must weigh up client confidentiality against that of public interest and the guidelines of what is or is not in the public interest are not always clearly defined. For example, if the court decides that a counsellor must produce notes of their sessions with a client, this may not only become problematic from a confidentiality point of view but also as the counsellors’ notes are subjective and the law deals in facts – any changes within the client’s thoughts/feelings which result in ‘conflicting’ portral of events could be mis-interpreted as false testimony.
The private unobserved nature of therapy and the importance of confidentiality between counsellor and client can result in concerns over whether this provides power to promote personal change or power to abuse the privilege. Evidence of bad practice in sexual abuse and allegations of false memories from clients seem to be all too common in the USA and one has to ponder to what extent in the UK, especially in the light of the recent publicity of the alleged abuse cases of Saville.
If any counsellors or those in a counselling role were involved in any way with the children he had contact with – it begs the question – were they aware of something amiss and afraid to come forward because of who he was or for fear of repurcussions within their organisation? Thus, the counsellor can be put in a legally vulnerable position whereby they are liable to pass information on to the employer under their contract and potentially liable to their client for breach of confidentiality.
Counsellors may not only find themselves in an ethical dilemma regarding client autonomy and client self harm or the client potentially harming others from a ‘professional standards’ point of view as the law may be unclear about their legal responsibilities as well. When one thinks of the tragic case of Anna, although the counsellor did not face any legal repercussions, the law is not clear on rules or regulations to help minimise their legal vulnerability when making decisions as to what action to take or not take.
Legislation is much more clear cut in the areas of adoption and infertility than in other areas but still there are uncertainties and conflicts of interest for the counsellor to wrestle with. The counsellor is presented with conflicting rights of the parent and their right to confidentiality on the one hand and the right of the child to know who their parents are on the other. When considering the case where a counsellor had to assess the degree of personal risk posed to the birth mother if personal information was released-it becomes clear that there are no clear guidelines for the counsellor which are laid down by law. Thus, ethical and legal dilemmas could arise between the right of the individual to records and the right of the birth parent to privacy.
Similarly, the counsellor is left to weigh up the gravity of keeping information confidential in cases of AIDS and HIV whereby the client has the right to privacy but the partner has the right to be informed as they could be at risk of harm.
According to Jenkins (1996), establishing a clear relationship with the law is one of the elements which is associated with acquiring full professional status. That is to say, a profession such as medicine, which has a recognised status in legislation and case law, is authorised to carry out certain activities and can delegate some of the responsibility for self-discipline and the maintenance of high standards of practice.
But, the legal dimensions of therapy are not recognised in the same way and thus the legal obligations and responsibilities of the counsellor and the law remain unclear and require further exploration of the legal context in which the counsellor works. One would hope that this dilemma would be worked on indepth to help counsellors to counsel effectively and of course, to avoid the fear of being sued as a result of imperfect knowledge of the law or inadvertent negligence.
Courtney from Study Moose
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