Law

CHAPTER OBJECTIVES

After reading this chapter, you will be able to: 1. Know the basic legal rights of offenders who may be engaged in the correctional counseling process. 2. Know the key ethical and legal considerations when providing counseling services within the institution and within the community. 3. Be aware of the various legal issues associated with the delivery of counseling services. 4. Understand the SOAP process of maintaining case notes and the importance of documentation and records management in counseling. 5. Understand the dynamics associated with the counseling relationship that can lead to ethical violations. PART ONE: LEGAL AND ETHICAL ISSUES Rights of the Correctional Offender One of the most important aspects of correctional counseling that practitioners and students need to be aware of involves the myriad of legal issues that must be considered. In addition, it is important to identify the sources of these rights so that a comprehensive understanding is possible. Before proceeding, however, a quick note should be made. It is likely that legal and ethical issues concerning correctional counseling are not usually the areas of interest to most persons wishing to learn about the correctional counseling process. However, this area of knowledge is fundamental for every counselor working in the criminal justice system for several reasons. First, offenders can be litigious by nature and it is wise for counselors to understand the legal parameters within their field to avoid pitfalls or manipulation by their offender clientele. Second, ethical practice is a key to developing genuine rapport between the counselor and the client. Third, a counselor is essentially incompetent if he or she is not familiar with his or her profession’s strictures on conduct and practice. Confidentiality In relation to counseling, confidentiality is a concept that describes the process of keeping private or secret the information disclosed by a client to a counselor during a counseling session. The essence of confidentiality is very important to the success of counseling. This point was highlighted in the U.S. Supreme Court case of Jaffee v. Redmond (1996). In its opinion, the Court clearly articulated that an atmosphere of confidence and trust is necessary for a client to feel comfortable enough to disclose his or her emotions, memories, and fears. The Court further reasoned that because of the nature of the problems for which clients seek the assistance of counselors, embarrassment or disgrace may be endured if information is not properly contained and is likely to impede the confidential relationship necessary for effective treatment. Beyond these, however, the issue of confidentiality becomes much less clear, especially within the domain of correctional counseling. Remember, correctional counseling describes the process of a trained counselor helping an offender identify and implement better methods of handling stressful life circumstances. Usually, confidentiality will be maintained unless the offender presents a danger to self or others. What needs to be made exceptionally clear, however, is the fact that the client is a convicted offender under the care of the criminal justice system. In these circumstances confidentiality will always yield to issues of security, safety, and order, as well as the concept of punishment in the event the offender discloses participation or knowledge of past, present, or future criminal behavior. This is the reality of correctional counseling. As Masters (2004) states, “In a criminal justice setting, whether during probation, incarceration, or some form of aftercare such as parole, it is impossible to assure a client of complete confidentiality” (p. 170). This is why it is of paramount importance to practice informed consent in all circumstances, and the stipulations governing the informed consent need to be articulated clearly and accurately. The concept of informed consent describes the process of a trained counselor educating the offender on all legal and ethical parameters governing the counseling relationship. In other words, offenders must be told that it is possible that anything they discuss in counseling may be under certain circumstances disclosed to the courts. Masters (2004) captures the essence of this point well by stating “It is ethically indefensible to assure the client of confidentiality or have the client assume that privacy exists when it does not” (p. 171). Offenders have the right to know what kind of treatment they are receiving, the associated risks, as well as the benefits and alternatives. Duty to Warn and the Case of Tarasoff One of the leading court cases governing the concept of confidentiality as it applies to information concerning the safety of a third party is Tarasoff v. Regents (1976). In essence, the court ruled that mental health professionals have the duty and obligation to protect a third party (public) in cases where they reasonably believe a client might endanger the third party; and this duty overrides any obligation to confidentiality. Prosenjit Poddar was a graduate student at the University of California at Berkeley. He was also a voluntary outpatient at the University’s student health center. During a counseling session Poddar told the psychologist that he intended to kill his former girlfriend, Tatiana Tarasoff, when she returned to campus from visiting her aunt in Brazil. In a counseling session he disclosed that he was upset and depressed due to the fact that Tatiana was involved in relationships with other men. Poddar stated that he was going to get a gun and shoot Tatiana. Based on this information the psychologist notified the campus police and informed them of what Poddar had stated. The campus police detained and questioned Poddar, who denied any intention of killing Tatiana. The campus police found Poddar to be rational and released him after he promised to stay away from Tatiana. Meanwhile, Poddar no longer sought counseling from the psychologist and no further action was taken. Two months later, when Tatiana returned, Poddar first stalked her and then stabbed her to death. Based on these circumstances the court stated, “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps. Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances” (Tarasoff v. Regents, 1976, p. 430). Ethics in Correctional Counseling Ethics is a concept that describes the process of focusing on principles and standards that are used to guide the relationships between people and, specifically for our purposes, the relationship between counselor and client (Gladding, 1996). The concept of ethics is often used in conjunction with describing whether certain behaviors are considered legal. For example, someone may state, “Such conduct, within the context of counseling would be considered illegal and unethical.” Appreciate, however, that in such a statement two different disciplines have been called on; one being the study of ethics and the other dealing with law. It may be that one way of teasing out the intended meaning of “ethics” is to think of the term as describing a discipline aimed at studying and identifying the parameters of human behavior and values within particular contexts. When counselors are faced with situations that are difficult to resolve, they are expected to handle these situations in ways that are professionally appropriate for the well-being of the client and the integrity of the counseling process. For example, the American Counseling Association (ACA, 2005) publishes a code of ethics aimed at providing direction and guidelines for counselors to address certain circumstances and this code will be primarily relied upon in this section. Section A.1.a., titled Primary Responsibility, states, “The primary responsibility of counselors is to respect the dignity and to promote the welfare of clients” (ACA, 2005, p. 4). Although not specific in providing dictates of exact behavior, the above section does provide crucial guidance. In essence, when attempting to figure out what behavior is most appropriate, one question to ask oneself is, “Are my actions in accordance with the best interest of my client?” Case Notes and Session Recording One of the most important elements of the correctional counseling process, and which is directly addressed by ethical codes of conduct, is the accurate recording of notes pertaining to the activities of all counseling sessions. Recording and maintaining accurate records is no longer something counselors should do but instead something counselors must do. This is partly due to the litigious nature of current society and the accurate recording of notes is one way to guard against potential liability concerns. In addition, case notes are vital to the process of keeping counseling sessions focused on pertinent issues of concern to the offender(s). To keep counseling sessions on track case notes should reflect the offender’s progress, or lack thereof, especially as it relates to the particular goals of an offender. Case notes provide one avenue for counselors to stay focused on particular issues as well as to verify compliance with legal issues. Regarding clients’ records, the code of ethics, the ACA, in Section A.1.b. (2005) states, “Counselors maintain records necessary for rendering professional services to their clients and as required by laws, regulations, or agency or institution procedures. Counselors include sufficient and timely documentation in their client records to facilitate the delivery and continuity of needed services. Counselors take reasonable steps to ensure that documentation in records accurately reflects client progress and services provided. If errors are made in client records, counselors take steps to properly note the correction of such errors according to agency or institutional policies” (p. 4). One of the most popular methods of capturing necessary information regarding the events that transpire during counseling sessions is described by the acronym SOAP. SOAP notes originally developed by Weed (1964) provide a method of collecting and documenting information that help counselors identify, prioritize, and track the needs of offenders so that they may be attended to in a timely and systematic fashion (Cameron & Turtle-Song, 2002). Each letter of the acronym represents a particular component of the data collection method: Subjective (S)—is a concept that describes the process of interpreting observations based on one’s own mind. This is where a counselor describes his or her impression of a particular offender. Particularly salient to this section is the description of an offender’s expression of feelings, concerns, plans, or goals, as well as the attendant levels of intensity attached to them each (Cameron & Turtle-Song, 2002). Objective (O)—is a concept that describes the process of a particular phenomenon that is observable. The objective portion may consist of an offender’s appearance, certain behaviors, abilities, and so on. In this section counselor observations should be stated in precise and descriptive terms that are quantifiable. Labels, judgments, and opinions should be avoided. Assessment (A)—is a concept that describes the process of a trained counselor providing an evaluation of an offender that incorporates the subjective and objective observations. It usually contains diagnostic terms such as depression, anxiety, anti-social disorder, bi-polar disorder, and obsessive-compulsive disorder (OCD), among others. The assessment component is the section mostly read by outside reviewers or auditors. It should be complete and based on factual evidence that is supported by information contained in the subjective and objective portions of the format (Cameron & Turtle-Song, 2002). Plan/Prognosis (P)—is a concept that describes the particular actions that will be carried out as a result of the assessment. Information contained in the plan usually consists of such entries describing the particular interventions used, educational components used to assist comprehension, the offender’s progress, direction that will be taken in the next session, and the date of the next section. Accountability is a vital component of the counseling process that must be adhered to. The best way to ensure accountability is to accurately and ethically note all happenings of the counseling process and then record these notes in appropriate files. SOAP is one format, among many, that provides guidelines that serve to help counselors ensure they are recording necessary information. Tables 2.1 and 2.2 serve as a guide or reference point. They are not all inclusive, but instead serve as a tool in assisting counselors to make sure they are capturing the essence of what is required in documenting the status of a particular client. The tables contain selections borrowed from the work of Cameron and Turtle-Song (2002). TABLE 2.1 Summary of definitions and examples Section Definitions Examples (S) Subjective What the client tells you. What others tell you about the client. Basically, how the client experiences the world. Client’s feelings, concerns, plans, goals, and thoughts. Intensity of problems and impact on relationships. Client’s orientation time, place, and person. (O) Objective Factual. What the counselor personally observes/witnesses. Quantifiable—what was seen, counted, smelled, heard, or measured. The client’s general appearance. Client’s demonstrated strengths and weaknesses. (A) Assessment Summarized the counselor’s clinical thinking. A synthesis of the analysis of the subjective and objective portion of the notes. Include clinical diagnosis and impressions. (P) Plan Describes the parameters of treatment based on the assessment. Includes interventions used, progress, and direction of future intervention. Informed Consent TABLE 2.2 Guidelines for note taking Dos Dont’s Be brief and concise. Keep quotes to a minimum. Use an active voice. Precise and descriptive terminology. Record immediately after each session. Use proper spelling, grammar, and punctuation. Document all contact or attempted contacts. Use only black ink if notes are handwritten. Sign off using legal signature and include your title. Do not use names of other clients, family members, or other individuals named by the client. Avoid terms like seems or appears. Avoid common labels that can be interpreted in various ways. Only use terminology that you are trained to use. Do not leave blank spaces. Do not use margins or try to squeeze additional commentary between lines. As discussed earlier, informed consent is a critical component of any respectable counseling process. It is important to note that there are ethical guidelines that inform the proper process and circumstances in which consent should be obtained from clients. In addition, informed consent is often obtained in separate circumstances that may fall under the umbrella of counseling. For example, within correctional counseling offenders will often be asked to provide consent to the initial assessment. In addition, it is common to have an evaluation component attached to many of the correctional counseling programs, which also require informed consent. Evaluation studies are primarily aimed at measuring selected variables at different points in time to determine if there is any progress in the offender. It is important that clients know the nature of the data that will be collected and the uses of such data. In its ethical standards, the ACA (2005) directly addresses the issue of informed consent as it relates to assessment for the purposes of research as well as counseling relationship. Prior to assessing a client, counselors should “explain the nature and purposes of assessment and the specific use of results in language the client (or other legally authorized person on behalf of the client) can understand, unless an explicit exception to this right has been agreed upon in advance. Regardless of whether scoring and interpretation are completed by counselors, by assistants, or by computer or other outside services, counselors take reasonable steps to ensure that appropriate explanations are given to the client” (ACA, 2005, p. 12). In addition, clients need to be informed, in a manner in which they understand, the likely processes that will take place during counseling sessions. The ACA (2005) makes this clear in Section A.2.a., where it states, “Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. Counselors have an obligation to review in writing and verbally with clients the rights and responsibilities of both the counselor and the client. Informed consent is an ongoing part of the counseling process, and counselors appropriately document discussions of informed consent throughout the counseling relationship” (p. 4). Further, clients need to be given clear and distinct information in regard to the counselor who delivers therapeutic services. Beyond matters of confidentiality, clients have a right to know other parameters related to their counselor and their perspective before any counseling begins. Clients should be informed of the counselor’s qualifications and credentials, the parameters related to those credentials, the nature of the counseling relationship, the counselor’s areas of expertise, fees and services offered, the boundaries of privileged communication, the limits of confidentiality, client responsibilities, and any potential risks that may occur as a result of the counseling process. Each of these points of information are important because they educate the client on the process and they ensure that no feelings of betrayal emerge from the client as the counselor administers services and/or ensures compliance with the agreed-upon treatment plan. The information just noted is typically included on what is referred to as a Disclosure Statement in many states. In other states, the official term may be a Declarations and Procedures Form (see Box 2.1). Regardless of the specific name given to the hardcopy form that is used, the counselor should emphasize that it is his or her desire that clients know, upfront, all of the specific details about the counseling process that they are about to become involved in. This is important because this goes well beyond being informed of limitations of confidentiality; it tells the client exactly what he or she should expect in therapy. While the boundaries of confidentiality are indeed important, clients need to understand the mechanics behind the therapeutic process since this optimizes their ability to participate. In many cases, clients may see the process of completing the disclosure statement as a mere formality and some may even find it to be a trifling issue, but the counselor should make sure that this information is understood by the client prior to conducting counseling. If done correctly, the counselor can use this process as a rapport-building opportunity by emphasizing that it is important to him or her, as a professional, to ensure that the client is as fully informed as is possible. The counselor should emphasize that it is his or her desire to provide ethical counseling services when requiring that the client become fully familiar with the elements of the counseling relationship. See Box 2.1 for an example of a Declarations and Procedures document which includes all of the information just discussed. BOX 2.1 Declarations and Procedures Form DECLARATION OF PRACTICES AND PROCEDURES John Smith 101 Main Street, Mayberry, USA 11001 (000) 000-000 Qualifications: I earned an MA degree from the University of ________________________ in 2010. I am a Licensed Professional Counselor (LPC #0000) with the LICENSED PROFESSIONAL COUNSELORS BOARD OF EXAMINERS, 8631 SUMMA AVENUE, BATON ROUGE, LOUISIANA 70809, TELEPHONE (225)765-2515. I am also a Licensed Addiction Counselor (LAC #0000) with the Addictive Disorder Regulatory Authority of Louisiana, Baton Rouge, Louisiana 70809. Telephone: (225)922-7700. Counseling Relationship: I see counseling as a process in which you, the client, and I, the counselor, have come to understand and trust one another, work as a team to explore and define present problem situations, develop future goals for an improved life, and work in a systematic fashion toward realizing those goals. Areas of Expertise: I have a specialty in addictions counseling and I am licensed to provide services that are related to the addicted population as well as general counseling services to a wide variety of populations. Fee Scale: The fee for my services typically range from $50.00 to $75.00 per session. However, I do operate on a sliding scale for remuneration, depending on the individual client’s particular financial circumstances and their state of need. Payment is due at the time of service and clients are seen by appointment only. Clients will be charged for appointments that are broken or canceled without 24-hour notice. Payment is not accepted from insurance companies. Services Offered and Clients Served: I approach counseling from a cognitive-behavioral perspective in that patterns of thoughts and actions are explored in order to better understand the client’s problems and to develop solutions. I work in a variety of formats, including individual counseling, couples counseling (related to addiction issues), and family counseling (as related to addiction and recovery). I also conduct group therapy. I see clients of all ages and backgrounds with the exception that I do not work individually with children under the age of six. Code of Conduct: As a counselor, I am required by state law to adhere to the Code of Conduct for Licensed Professional Counselors that has been adopted by my licensing board. A Copy of this code is available upon request. Privileged Communications: Materials revealed in counseling will remain strictly confidential except for: a. The client signs a written release of information indicating informed consent of such release. b. The client expresses intent to harm himself or herself or someone else. c. There is a reasonable suspicion of abuse or neglect against a minor child, elderly person (65 years of age or older), or a dependent adult. d. A court order is received directing the disclosure of information. It is my policy to assert privileged communication on the behalf of the client and the right to consult with the client if at all possible, except during an emergency, before mandated disclosure. I will endeavor to apprise the client of all mandated disclosures as conceivable. In the event of marriage or family counseling, material obtained from an adult client individually may be shared with the client’s spouse or other family members only with the client’s permission. Any material obtained with a minor client may be shared with the client’s parents or guardian. Emergency Situation: If an emergency situation should arise, you may seek help through hospital emergency room facilities or by calling 911. Client Responsibilities: You, the client, are a full partner in counseling. Your honesty and effort is essential to success. If you have suggestions or concerns about your counseling as we work together, I expect you to share these with me so that we can make the necessary adjustments. If it develops that you would be better served by another mental health provider, I will help you with the referral process. If you are currently receiving services from another mental health professional, I expect you to inform me of this and grant me permission to share information with this professional so that we may coordinate our treatment plan and any medication schedules that you are now under. Physical Health: Physical health is an important factor in the emotional well-being of an individual. If you have not had a physical examination in the last year, it is recommended that you do so. Also, please provide me with a list of the medicines that you are now taking. Potential Counseling Risk: The client should be aware that counseling poses potential risks. In the course of working together additional problems may surface of which the client was not initially aware. If this occurs the client should feel free to share

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