Chapter 7 1

Ethical, Legal, & Professional Issues

in School Counseling

Chapter 7Chapter 7

Professional Associations and Credentialing OrganizationsProfessional Associations and Credentialing Organizations

American Counseling Association (ACA)American Counseling Association (ACA) ACA’s mission is to enhance the quality of life in society by promoting the ACA’s mission is to enhance the quality of life in society by promoting the

development of professional counselors, advancing the counseling profession, and development of professional counselors, advancing the counseling profession, and using the profession and practice of counseling to promote respect for human dignity using the profession and practice of counseling to promote respect for human dignity and diversity.and diversity.

ACA contains 19 divisions.ACA contains 19 divisions. It influences all aspects of professional counseling through programs, committees, It influences all aspects of professional counseling through programs, committees,

and functions (i.e., credentialing of counselors, accreditation of counselor education and functions (i.e., credentialing of counselors, accreditation of counselor education programs, ethical standards, professional development, professional resources and programs, ethical standards, professional development, professional resources and services, and public policy and legislation).services, and public policy and legislation).

ACA has 15 committees, including an Ethics Committee which is responsible for ACA has 15 committees, including an Ethics Committee which is responsible for updating ethical standards and investigating ethical complaints.updating ethical standards and investigating ethical complaints.

ACA covers current research, professional practices, and other pertinent information ACA covers current research, professional practices, and other pertinent information regarding counseling.regarding counseling.

ACA produces a monthly newsletter called ACA produces a monthly newsletter called CounselingCounseling Today.Today. ACA’s Webpage is ACA’s Webpage is http://www.counseling.org..

Professional Associations and Credentialing OrganizationsProfessional Associations and Credentialing Organizations

American School Counselors Association American School Counselors Association (ASCA)(ASCA) ASCA is a semiautonomous division of ACA ASCA is a semiautonomous division of ACA

and addresses school counseling issues.and addresses school counseling issues. ASCA targets its efforts toward professional ASCA targets its efforts toward professional

development, publications and other development, publications and other resources, research, and advocacy resources, research, and advocacy specifically for school counselors.specifically for school counselors.

Professional Associations and Credentialing OrganizationsProfessional Associations and Credentialing Organizations

National Board for Certified Counselors National Board for Certified Counselors (NBCC)(NBCC) NBCC is the only national credentialing NBCC is the only national credentialing

organization for professional counselors.organization for professional counselors. The The National Counselor ExamNational Counselor Exam ( (NCENCE) must be ) must be

passed as part of the process for becoming passed as part of the process for becoming nationally certified. nationally certified.

The The NCENCE is frequently used by states for is frequently used by states for professional counselor licensure or professional counselor licensure or certification.certification.

Professional Associations and Credentialing OrganizationsProfessional Associations and Credentialing Organizations The Council for the Accreditation of Counseling and Related Educational Programs The Council for the Accreditation of Counseling and Related Educational Programs

(CACREP)(CACREP) CACREP is a corporate partner of ACA.CACREP is a corporate partner of ACA. CACREP is responsible for establishing state-of-the-art standards for CACREP is responsible for establishing state-of-the-art standards for

counselor education programs.counselor education programs. CACREP standards address program objectives and curricula, faculty CACREP standards address program objectives and curricula, faculty

and staff requirements, program evaluation, and other requirements and staff requirements, program evaluation, and other requirements for accreditation.for accreditation.

Students who graduate from CACREP programs are usually in an Students who graduate from CACREP programs are usually in an advantageous position to be hired because their programs include 48 advantageous position to be hired because their programs include 48 graduate credit hours and 700 hours of field placement.graduate credit hours and 700 hours of field placement.

Ethical Standards and LawsEthical Standards and Laws

StandardsStandards Developed by professional associations to Developed by professional associations to

guide the behavior of a specific group of guide the behavior of a specific group of professionals.professionals.

Ethical standards serve the purpose of Ethical standards serve the purpose of educating members about ethical conduct, educating members about ethical conduct, provide a mechanism for accountability, and provide a mechanism for accountability, and serve as a means for improving professional serve as a means for improving professional practice.practice.

Updated periodically to ensure relevance.Updated periodically to ensure relevance. Based on generally accepted norms, beliefs, Based on generally accepted norms, beliefs,

customs, and values.customs, and values.

LawsLaws Laws are more prescriptive.Laws are more prescriptive. They have been incorporated into code, They have been incorporated into code,

and carry greater penalties for failure and carry greater penalties for failure to comply.to comply.

Differences Between Standards and Laws

Ethical Standards and LawsEthical Standards and Laws

Both exist to encourage appropriate behavior to provide for the best interests of the Both exist to encourage appropriate behavior to provide for the best interests of the client.client.

Both concern behaving in an appropriate professional manner, practicing within the Both concern behaving in an appropriate professional manner, practicing within the scope of one’s education, training and experience.scope of one’s education, training and experience.

Because there are penalties associated with laws, the counselor will generally follow Because there are penalties associated with laws, the counselor will generally follow the legal guidelines if there is no harm to the client. the legal guidelines if there is no harm to the client.

Similarities Between Standards and Laws

ACA Code of Ethics ACA Code of Ethics

Revised August, 2005.Revised August, 2005. Aspirational ethics (i.e., standards of Aspirational ethics (i.e., standards of

practice) have been incorporated practice) have been incorporated into the body of the into the body of the Code of EthicsCode of Ethics and are no longer a separate section.and are no longer a separate section.

Each section now has an Each section now has an introduction.introduction.

Several new issues and a glossary Several new issues and a glossary have been added.have been added.

ACA Code of EthicsACA Code of Ethics

5 Main Purposes:5 Main Purposes: 1. Enables ACA to clarify to current and future members, and those 1. Enables ACA to clarify to current and future members, and those

served by members, the nature of the ethical responsibilities held in served by members, the nature of the ethical responsibilities held in common by its members.common by its members.

2. Helps support the mission of ACA.2. Helps support the mission of ACA. 3. Establishes principles that define ethical behavior and best practices 3. Establishes principles that define ethical behavior and best practices

of association members.of association members. 4. Ethical guide to assist members in constructing a professional 4. Ethical guide to assist members in constructing a professional

course of action that best serves those using counseling services and course of action that best serves those using counseling services and best promotes the values of the counseling profession.best promotes the values of the counseling profession.

5. Serves as the basis of processing ethical complaints and inquiries 5. Serves as the basis of processing ethical complaints and inquiries initiated against members of the association.initiated against members of the association.

ACA Code of EthicsACA Code of Ethics The ACA’s The ACA’s Code of EthicsCode of Ethics is based on Kitchener’s five moral is based on Kitchener’s five moral

principles:principles: AutonomyAutonomy refers to the concept of independence and the refers to the concept of independence and the

ability to make one’s own decisions.ability to make one’s own decisions. JusticeJustice means treating each person fairly, but it does not means treating each person fairly, but it does not

mean treating each person in the same way.mean treating each person in the same way. BeneficenceBeneficence refers to doing what is in the best interests refers to doing what is in the best interests

of the client.of the client. NonmaleficenceNonmaleficence means doing no harm to others. means doing no harm to others. FidelityFidelity involves the concepts of loyalty, faithfulness, and involves the concepts of loyalty, faithfulness, and

honoring commitments.honoring commitments.

ACA Code of EthicsACA Code of Ethics The Code of Ethics is divided into eight areas:The Code of Ethics is divided into eight areas: The Counseling RelationshipThe Counseling RelationshipConfidentiality, Privileged Communication and PrivacyConfidentiality, Privileged Communication and PrivacyProfessional ResponsibilityProfessional ResponsibilityRelationships with Other ProfessionalsRelationships with Other ProfessionalsEvaluation, Assessment and InterpretationEvaluation, Assessment and InterpretationSupervision, Training and TeachingSupervision, Training and TeachingResearch and PublicationResearch and PublicationResolving Ethical IssuesResolving Ethical Issues

ASCA Ethical Standards for School CounselorsASCA Ethical Standards for School Counselors

ASCA developed a set of ethical standards designed specifically for school counseling.ASCA developed a set of ethical standards designed specifically for school counseling.These standards contain eight sections, which include responsibilities to students, These standards contain eight sections, which include responsibilities to students,

parents, colleagues and professional associates, as well as responsibilities to the parents, colleagues and professional associates, as well as responsibilities to the community, self, and profession. A final section addresses maintenance of community, self, and profession. A final section addresses maintenance of standards and resources.standards and resources.

ASCA’s standards discuss putting the student’s best interests first, treating each ASCA’s standards discuss putting the student’s best interests first, treating each student as an individual and with respect, involving parents as appropriate, student as an individual and with respect, involving parents as appropriate, maintaining one’s expertise through ongoing professional development and maintaining one’s expertise through ongoing professional development and learning, and behaving professionally and ethically.learning, and behaving professionally and ethically.

Both ACA and ASCA have developed guides to ethical decision making - should an Both ACA and ASCA have developed guides to ethical decision making - should an ethical dilemma arise.ethical dilemma arise.

Ethical Decision MakingEthical Decision Making The ACA has a model to guide ethical decision making that The ACA has a model to guide ethical decision making that

consists of seven steps:consists of seven steps:1.1. Identify the problem.Identify the problem.2.2. Apply the ACA Apply the ACA Code of EthicsCode of Ethics..3.3. Determine the nature and dimensions of the dilemma.Determine the nature and dimensions of the dilemma.4.4. Generate potential courses of action.Generate potential courses of action.5.5. Consider the potential consequences of all options.Consider the potential consequences of all options.6.6. Choose a course of action.Choose a course of action.7.7. Evaluate the selected course of action.Evaluate the selected course of action.

Ethical Decision MakingEthical Decision Making Remley and Herlihy (2001) suggested four self-tests to Remley and Herlihy (2001) suggested four self-tests to

consider once a decision has been made to determine whether consider once a decision has been made to determine whether the decision was ethically sound:the decision was ethically sound: Would you treat others this same way if they were in a Would you treat others this same way if they were in a

similar situation?similar situation? Would you suggest to other counselors this same course of Would you suggest to other counselors this same course of

action?action? Would you be willing to have others know how you acted?Would you be willing to have others know how you acted? Do you have any lingering feelings of doubt or uncertainty Do you have any lingering feelings of doubt or uncertainty

about what you did?about what you did?

Sources of Information and GuidanceSources of Information and GuidanceEthical standards have an important function in Ethical standards have an important function in

guiding the behavior of counselors; however, guiding the behavior of counselors; however, other sources are valuable in maintaining other sources are valuable in maintaining the highest standards of ethical and legal the highest standards of ethical and legal behavior.behavior.

These other sources include the court system, These other sources include the court system, statutory law, and state and local agencies.statutory law, and state and local agencies.

The Court SystemThe Court SystemCounselors are affected by three main types of laws:Counselors are affected by three main types of laws:

1. Statutory law - created by legislatures.1. Statutory law - created by legislatures.

2. Constitutional law - results from court decisions 2. Constitutional law - results from court decisions concerning constitutional issues.concerning constitutional issues.

3. Common law - results from other court decisions.3. Common law - results from other court decisions.

Statutory LawStatutory Law Body of mandates created through Body of mandates created through

legislation passed by U.S. Congress legislation passed by U.S. Congress and state legislatures.and state legislatures.

The structure of education and The structure of education and health systems, as well as many of health systems, as well as many of the policies that govern the policies that govern implementation are found within implementation are found within these mandates.these mandates.

Statutory LawStatutory Law

The majority of legislation influencing schools and counselors is passed by state legislatures and concerns two types of legislation:

1. Creating state legislation to implement federal legislation

2. Enacting new state-specific legislation.

State laws may be more restrictive than federal legislation, but never less restrictive.

State and Local AgenciesState and Local AgenciesState departmentsState departments of education of education have the ability to enact regulations that are have the ability to enact regulations that are

binding on the school districts within the state.binding on the school districts within the state. State agencies develop policies on how to implement a specific law.State agencies develop policies on how to implement a specific law. State agencies may also issue guidelines, which are State agencies may also issue guidelines, which are suggestionssuggestions

about how to address a specific issue. about how to address a specific issue. For example, the state attorney general may issue an “advice of For example, the state attorney general may issue an “advice of

counsel” in response to a new court case or law.counsel” in response to a new court case or law.Local school systems and agencies Local school systems and agencies may develop their own policies, procedures, may develop their own policies, procedures,

and guidelines.and guidelines. For example, school systems often take state regulations and For example, school systems often take state regulations and

rewrite them to reflect their specific situation.rewrite them to reflect their specific situation.

Making DecisionsMaking DecisionsFailure to understand the law is not an acceptable legal defense.Failure to understand the law is not an acceptable legal defense.

The professional school counselor needs to be familiar with sources of The professional school counselor needs to be familiar with sources of ethical information in order to perform job responsibilities.ethical information in order to perform job responsibilities.

Counselors ordinarily have a supervisor who can help them become Counselors ordinarily have a supervisor who can help them become familiar with the regulations.familiar with the regulations.

When mandates appear to be in conflict, follow the logical course of When mandates appear to be in conflict, follow the logical course of action and document your actions and why you chose that course of action and document your actions and why you chose that course of action.action.

Making DecisionsMaking Decisions

Two issues that are sometimes confusing Two issues that are sometimes confusing to counselors are:to counselors are:

1.1. The differing ways counselors in different The differing ways counselors in different settings operate.settings operate.

For example, mental health counselors from For example, mental health counselors from outside agencies need to have informed consent outside agencies need to have informed consent for students to participate in various programs. for students to participate in various programs. However, schools may not require informed However, schools may not require informed consent. consent.

2.2. Counselors with multiple credentials.Counselors with multiple credentials.Employees must follow the mandates that apply to their work Employees must follow the mandates that apply to their work setting.setting.

Additional Legal ConsiderationsAdditional Legal Considerations

Counselors have different levels of experience, Counselors have different levels of experience, education, training, values, morals, and spiritual education, training, values, morals, and spiritual influences.influences.

As a result, professional school counselors must be As a result, professional school counselors must be aware of how their beliefs impact the client.aware of how their beliefs impact the client.

The bottom line – The bottom line – ALWAYS TRY TO DO WHAT IS IN ALWAYS TRY TO DO WHAT IS IN THE BEST INTEREST OF THE CLIENT!THE BEST INTEREST OF THE CLIENT!

Professional CompetenceProfessional Competence 1. Maintain professional growth through continuing education.1. Maintain professional growth through continuing education. * * Stay current with theories, trends, and information.Stay current with theories, trends, and information. 2. Maintain accurate knowledge and expertise in areas of responsibility.2. Maintain accurate knowledge and expertise in areas of responsibility. * * Information changes rapidly, so it is paramount to maintain accurate, up-to-date Information changes rapidly, so it is paramount to maintain accurate, up-to-date

knowledge.knowledge. 3. Accurately represent credentials.3. Accurately represent credentials. * * Counselors who hold doctorates in non-mental health fields should not use the Counselors who hold doctorates in non-mental health fields should not use the

title “doctor” in their work as a counselor.title “doctor” in their work as a counselor. 4. Provide only those services for which you are qualified and trained.4. Provide only those services for which you are qualified and trained. * * Counselors should have training in a particular technique before using it. In Counselors should have training in a particular technique before using it. In

addition, counselors should only work with clients whose problems are within their area of addition, counselors should only work with clients whose problems are within their area of treatment expertise.treatment expertise.

Can I Be Sued?Can I Be Sued?YES! YES! Anyone can be sued for anything at any time.Anyone can be sued for anything at any time.If professional school counselors fail to exercise “due care” in fulfilling their If professional school counselors fail to exercise “due care” in fulfilling their

professional responsibilities, they can be found guilty (civil liability). When professional responsibilities, they can be found guilty (civil liability). When counselors fail to exercise “due care,” they can be found guilty of negligence. counselors fail to exercise “due care,” they can be found guilty of negligence. An example of negligence would be a counselor who failed to report an An example of negligence would be a counselor who failed to report an

abuse case. The counselor had a duty to the client and failed to fulfill abuse case. The counselor had a duty to the client and failed to fulfill that duty.that duty.

The “standard of practice” will be used in any liability proceeding to determine the The “standard of practice” will be used in any liability proceeding to determine the counselor’s performance.counselor’s performance. The standard of practice question is, “…did the counselor provide the The standard of practice question is, “…did the counselor provide the

level of care and treatment that is consistent with the degree of level of care and treatment that is consistent with the degree of learning, skill and ethics expected by reputable counselors practicing learning, skill and ethics expected by reputable counselors practicing under similar circumstances?”under similar circumstances?”

The standard of practice is established through the testimony of peers The standard of practice is established through the testimony of peers and based on education and experience.and based on education and experience.

What is Malpractice?What is Malpractice?Malpractice is professional misconduct or any unreasonable lack of skill in the Malpractice is professional misconduct or any unreasonable lack of skill in the

performance of professional duties.performance of professional duties.For a counselor to be held liable for malpractice, four conditions must be met.For a counselor to be held liable for malpractice, four conditions must be met. 1. A duty was owed to the plaintiff (client) by the defendant (counselor).1. A duty was owed to the plaintiff (client) by the defendant (counselor). 2. The duty was breached.2. The duty was breached. 3. There was a causal link between the breach and the plaintiff’s injury.3. There was a causal link between the breach and the plaintiff’s injury. 4. The client suffered some damage.4. The client suffered some damage.As an example: If a counselor treating a client with an eating disorder used As an example: If a counselor treating a client with an eating disorder used

hypnosis, but was not trained to use hypnosis, malpractice could be claimed.hypnosis, but was not trained to use hypnosis, malpractice could be claimed.

What is Malpractice?What is Malpractice?

A counselor could be found guilty of malpractice if one or more of the A counselor could be found guilty of malpractice if one or more of the following situations occurs:following situations occurs:

* The practice was not within the realm of acceptable professional * The practice was not within the realm of acceptable professional practice.practice.

* The counselor was not trained in the technique used.* The counselor was not trained in the technique used. * The counselor failed to follow a procedure that would have been * The counselor failed to follow a procedure that would have been

more helpful.more helpful. * The counselor failed to warn and/or protect others from a violent * The counselor failed to warn and/or protect others from a violent

crime.crime. * The counselor failed to obtain informed consent.* The counselor failed to obtain informed consent. * The counselor failed to explain the possible consequences of * The counselor failed to explain the possible consequences of

treatment.treatment.

SubpoenasSubpoenasThe most common reason counselors receive subpoenas are because of The most common reason counselors receive subpoenas are because of

cases involving custody disputes, child abuse/neglect allegations, and cases involving custody disputes, child abuse/neglect allegations, and special education disputes.special education disputes.

Under no circumstances should the counselor automatically comply with Under no circumstances should the counselor automatically comply with the subpoena without discussing it first with the client, client’s the subpoena without discussing it first with the client, client’s attorney, and/or employing agency/school system attorney.attorney, and/or employing agency/school system attorney.

If both a subpoena and a court order are received, the counselor If both a subpoena and a court order are received, the counselor mustmust release information with or without the client’s consent.release information with or without the client’s consent.

SubpoenasSubpoenasAccording to ACA (1997), counselors should take the following steps when receiving a subpoena:According to ACA (1997), counselors should take the following steps when receiving a subpoena:

Contact the client or the client’s attorney and ask for guidance. If you work for a school system, Contact the client or the client’s attorney and ask for guidance. If you work for a school system, contact the school system’s attorney.contact the school system’s attorney.

If the above parties advise you to comply with the subpoena, discuss the implications of releasing If the above parties advise you to comply with the subpoena, discuss the implications of releasing the requested information.the requested information.

Obtain a signed informed consent form to release the records. The form should specify all Obtain a signed informed consent form to release the records. The form should specify all conditions of release.conditions of release.

If the decision is made to not release the records, the attorney should file a motion to “quash.” This If the decision is made to not release the records, the attorney should file a motion to “quash.” This allows the counselor to not comply with the subpoena. allows the counselor to not comply with the subpoena.

Maintain a record of everything the counselor and attorneys did, keep notes regarding all Maintain a record of everything the counselor and attorneys did, keep notes regarding all conversations and copies of any documents pertaining to the subpoena.conversations and copies of any documents pertaining to the subpoena.

**DO NOT PANIC, BUT DO CONSULT AN ATTORNEY****DO NOT PANIC, BUT DO CONSULT AN ATTORNEY**

ConfidentialityConfidentialityConfidentiality is essential for counseling to be successful.Confidentiality is essential for counseling to be successful.

Confidentiality belongs to the client, not to the counselor.Confidentiality belongs to the client, not to the counselor.

The client always has the right to waive confidentiality.The client always has the right to waive confidentiality.

Minors have an ethical right to confidentiality, but the legal rights belong to Minors have an ethical right to confidentiality, but the legal rights belong to their parents or guardian.their parents or guardian.

At the beginning of the first session of each new counseling relationship, the At the beginning of the first session of each new counseling relationship, the professional school counselor should discuss confidentiality.professional school counselor should discuss confidentiality. For example, discuss what it means and point out the limits.For example, discuss what it means and point out the limits.

Limits to ConfidentialityLimits to ConfidentialityThere are several instances in which counselors must break confidentiality.There are several instances in which counselors must break confidentiality.

The most important is the “The most important is the “duty to warnduty to warn.”.” When the client is in danger of being harmed or is likely to harm When the client is in danger of being harmed or is likely to harm

someone else, the counselor may break confidentiality and tell the someone else, the counselor may break confidentiality and tell the appropriate persons.appropriate persons.

Exercising a duty to warn was made famous by the Exercising a duty to warn was made famous by the 1974 Tarasoff 1974 Tarasoff casecase in California in which a graduate student told his psychologist in California in which a graduate student told his psychologist about his intent to kill a girl who had rejected his advances. The about his intent to kill a girl who had rejected his advances. The psychologist told the campus police and supervisor, but failed to warn psychologist told the campus police and supervisor, but failed to warn the intended victim or her family.the intended victim or her family.

Limits to ConfidentialityLimits to ConfidentialitySeveral other situations constrain the limits of confidentiality:Several other situations constrain the limits of confidentiality:

Subordinates Subordinates - They should have limited access to information.- They should have limited access to information. Treatment teamsTreatment teams - The client should be informed of the team and the - The client should be informed of the team and the

information being shared.information being shared. Consultation Consultation - The professional school counselor has a right to consult with a - The professional school counselor has a right to consult with a

colleague or supervisor.colleague or supervisor. Group/family counseling Group/family counseling - Because there is more than one client in the room, - Because there is more than one client in the room,

it is impossible to guarantee confidentiality.it is impossible to guarantee confidentiality. Third-party payers Third-party payers - The counselor should disclose information to third-party - The counselor should disclose information to third-party

payers only with the client’s permission.payers only with the client’s permission. Minors - Minors - Numerous minor consent laws apply and vary across states.Numerous minor consent laws apply and vary across states. Contagious, life-threatening diseases Contagious, life-threatening diseases - The counselor is - The counselor is justifiedjustified in in

breaking confidentiality if a third party’s relationship with the client involves the breaking confidentiality if a third party’s relationship with the client involves the possibility of contracting the disease and the client does not plan on telling the possibility of contracting the disease and the client does not plan on telling the third party.third party.

Court-ordered disclosure Court-ordered disclosure - Even if ordered to reveal confidential information - Even if ordered to reveal confidential information by a judge, counselors should limit what they reveal to only what is absolutely by a judge, counselors should limit what they reveal to only what is absolutely necessary.necessary.

Confidentiality and Privileged Confidentiality and Privileged CommunicationCommunication

Privileged communication is the legal term to describe the privacy of the Privileged communication is the legal term to describe the privacy of the counselor-client communication.counselor-client communication.

It applies only to testifying in a court of law.It applies only to testifying in a court of law.

The privilege belongs to the client, who always has the right to waive the The privilege belongs to the client, who always has the right to waive the privilege and allow the counselor to testify.privilege and allow the counselor to testify.

It is essential that counselors become familiar with their local mandates and It is essential that counselors become familiar with their local mandates and policies for determining the extent to which privileged communication policies for determining the extent to which privileged communication applies to their situation.applies to their situation.

Minor Consent LawsMinor Consent LawsMinor consent laws allow certain minors to seek treatment for certain Minor consent laws allow certain minors to seek treatment for certain

conditions, usually involving substance abuse, mental health, and some conditions, usually involving substance abuse, mental health, and some reproductive health areas.reproductive health areas. These laws are based on the federal regulation 42 CFR Part 2.These laws are based on the federal regulation 42 CFR Part 2.

The law prohibits the release of these The law prohibits the release of these records to anyone without the client’s records to anyone without the client’s informed consent and includes clients informed consent and includes clients under the age of 18 years, even if they are under the age of 18 years, even if they are in school and living with a parent/guardian.in school and living with a parent/guardian.

Minor Consent LawsMinor Consent Laws

Students suspected of having a substance abuse Students suspected of having a substance abuse problem can be referred to school-based student problem can be referred to school-based student assistance programs (SAPs). If the team believes the assistance programs (SAPs). If the team believes the student has a substance abuse problem, they can student has a substance abuse problem, they can have the student assessed and referred for have the student assessed and referred for appropriate assistance.appropriate assistance. However, there is some controversy surrounding However, there is some controversy surrounding

the role of parents in this process. Under federal the role of parents in this process. Under federal law, the student can be referred and complete law, the student can be referred and complete treatment without the parent’s/guardian’s treatment without the parent’s/guardian’s knowledge.knowledge.

As a result, states have taken different approaches As a result, states have taken different approaches in deciding to whom this law applies. In general, in deciding to whom this law applies. In general, the patient must be old enough to understand the the patient must be old enough to understand the problem, the treatment options, and the problem, the treatment options, and the consequences.consequences.

Minor Consent LawsMinor Consent LawsAccording to the Guttmacher According to the Guttmacher

Institute:Institute: 25 states and DC allow all minors to consent to contraceptive 25 states and DC allow all minors to consent to contraceptive

services.services. 21 states allow minors to consent to contraceptive services in one 21 states allow minors to consent to contraceptive services in one

or more circumstances.or more circumstances. 4 states have no minor consent law for contraceptive services.4 states have no minor consent law for contraceptive services. 30 states allow minors to consent to prenatal treatment when 30 states allow minors to consent to prenatal treatment when

pregnant, while 20 have no law. All 50 states allow minors to pregnant, while 20 have no law. All 50 states allow minors to consent to treatment for STDs and HIV/AIDS.consent to treatment for STDs and HIV/AIDS.

44 states allow minor consent for drug abuse treatment.44 states allow minor consent for drug abuse treatment. 20 states allow minor consent outpatient mental health services, 29 20 states allow minor consent outpatient mental health services, 29

do not.do not. 22 states allow minor consent for general medical care, and 29 do 22 states allow minor consent for general medical care, and 29 do

not.not. 3 states allow minor consent for abortion services, 30 require 3 states allow minor consent for abortion services, 30 require

parental consent or notification and 18 states have no law.parental consent or notification and 18 states have no law. THERE IS TREMENDOUS VARIATION BETWEEN THE 50 STATES IN THERE IS TREMENDOUS VARIATION BETWEEN THE 50 STATES IN

WHAT IS PERMISSABLE UNDER LAW.WHAT IS PERMISSABLE UNDER LAW. Laws clearly cover medical personnel, therefore a school nurse is Laws clearly cover medical personnel, therefore a school nurse is

covered but a school counselor or school psychologist may not be covered but a school counselor or school psychologist may not be covered.covered.

Minor Consent LawsMinor Consent Laws

It is critical that professional school It is critical that professional school counselors and other student services counselors and other student services personnel become familiar with the minor personnel become familiar with the minor consent laws in the state in which they work consent laws in the state in which they work to ensure compliance.to ensure compliance.

Counselors should not wait until they are Counselors should not wait until they are faced with a situation to figure out where faced with a situation to figure out where they stand on an issue.they stand on an issue. For example, parents may be angry when For example, parents may be angry when

they discover they were not informed of they discover they were not informed of their children’s substance abuse their children’s substance abuse treatment or that their child has a treatment or that their child has a sexually transmitted disease and the sexually transmitted disease and the counselor knew and did not notify them of counselor knew and did not notify them of the situation.the situation.

Educational Records and FERPAEducational Records and FERPAEducational records are all the records of a student’s Educational records are all the records of a student’s

achievement, attendance, behavior, testing, school achievement, attendance, behavior, testing, school activities, and other information the school collects.activities, and other information the school collects.

The inspection, dissemination, and access to student The inspection, dissemination, and access to student educational records must be in accordance with the educational records must be in accordance with the Family Educational Rights and Privacy Act (FERPA)Family Educational Rights and Privacy Act (FERPA) of of 1974, also known as the Buckley Amendment.1974, also known as the Buckley Amendment. The first provision requires schools/systems The first provision requires schools/systems

annually to send a notice to parents/guardians annually to send a notice to parents/guardians regarding their right to review their children’s regarding their right to review their children’s records and to file a complaint if they disagree with records and to file a complaint if they disagree with anything in the record.anything in the record.

Second, the law limits who may access records and Second, the law limits who may access records and specifies what information can be disclosed without specifies what information can be disclosed without informed consent.informed consent.

Educational Records and the Educational Records and the Hatch AmendmentHatch Amendment

The Hatch Amendment of 1978:The Hatch Amendment of 1978: Requires informed parent consent before the Requires informed parent consent before the

student undergoes any psychological, psychiatric, student undergoes any psychological, psychiatric, or medical examination, testing or treatment, or or medical examination, testing or treatment, or any school program designed to affect the any school program designed to affect the personal values or behavior of the student.personal values or behavior of the student.

Gives parents the right to review instructional Gives parents the right to review instructional materials in experimental programs.materials in experimental programs.

Requires informed consent for all studies that are Requires informed consent for all studies that are funded with federal money.funded with federal money.

Revealing Educational Records to Revealing Educational Records to Various IndividualsVarious Individuals

Parents Parents - Unless there is a court order in the - Unless there is a court order in the child’s file that limits or terminates the rights child’s file that limits or terminates the rights of one or both parents, both parents have the of one or both parents, both parents have the same access to the child’s records.same access to the child’s records.

Stepparents and other family members Stepparents and other family members - Have no - Have no legal right to the student’s records without legal right to the student’s records without court appointed authority.court appointed authority.

Outside Agencies Outside Agencies - May not access records of any - May not access records of any student without the signed consent of the student without the signed consent of the parent.parent.

School Team Meetings School Team Meetings - Local policies dictate - Local policies dictate whether signed informed consent is needed to whether signed informed consent is needed to share information at school team meetings.share information at school team meetings.

Personal NotesPersonal NotesPersonal notes are notes written by Personal notes are notes written by

professional school counselors to serve as professional school counselors to serve as an extension of their memories.an extension of their memories.

They are an impression of the client or They are an impression of the client or session.session.

Notes must remain “in the sole possession of Notes must remain “in the sole possession of the maker” and cannot be shared with the maker” and cannot be shared with anyone except “a substitute maker”.anyone except “a substitute maker”.

These notes must remain separate from the These notes must remain separate from the educational records and kept in a secure educational records and kept in a secure place.place.

It is preferable to keep the notes separate It is preferable to keep the notes separate and not tell anyone they exist, even if the and not tell anyone they exist, even if the information is of no particular interest.information is of no particular interest.

Health Insurance Portability and Health Insurance Portability and Accountability Act (HIPAA) of 1996Accountability Act (HIPAA) of 1996

Required the U.S. Department of Health Required the U.S. Department of Health and Human Services to adopt national and Human Services to adopt national standards for the privacy of individually standards for the privacy of individually identifiable health information, outlined identifiable health information, outlined patients’ rights, and established criteria patients’ rights, and established criteria for access to health records. for access to health records.

Required the adoption standards for Required the adoption standards for electronic health care transactions.electronic health care transactions.

School systems need to address any School systems need to address any potential conflicts between potential conflicts between FERPA FERPA and and HIPAA.HIPAA.

Child AbuseChild AbuseThe 1974 The 1974 Child Abuse Prevention and Treatment ActChild Abuse Prevention and Treatment Act has been revised has been revised

and renamed and renamed Keeping Children and Families Safe Act of 2003.Keeping Children and Families Safe Act of 2003. Every health practitioner, educator, human services worker, Every health practitioner, educator, human services worker,

and law enforcement officer must report suspected abuse or and law enforcement officer must report suspected abuse or neglect, generally within 24-72 hours of first “having reason to neglect, generally within 24-72 hours of first “having reason to suspect.” suspect.”

It is pertinent that the first person who suspects the abuse or It is pertinent that the first person who suspects the abuse or neglect call Child Protective Services.neglect call Child Protective Services.

The oral report must be followed by a written report.The oral report must be followed by a written report.There is no liability for reporting, unless done with malicious intent.There is no liability for reporting, unless done with malicious intent.Parents/guardians have no right to information during this process.Parents/guardians have no right to information during this process.The school making the report should not inform the parents that a The school making the report should not inform the parents that a

report has been made. report has been made. Social services and law enforcement are responsible for Social services and law enforcement are responsible for

contacting the parent and conducting the investigation.contacting the parent and conducting the investigation.

SuicideSuicideThe Eisel case in Maryland changed the standard for reporting The Eisel case in Maryland changed the standard for reporting

suicide threats.suicide threats. This case involved two middle school students who became This case involved two middle school students who became

involved in Satanism and were obsessed with death. Friends of involved in Satanism and were obsessed with death. Friends of one of the girls, Nicole Eisel, went to their professional school one of the girls, Nicole Eisel, went to their professional school counselor and informed her that Eisel was going to commit counselor and informed her that Eisel was going to commit suicide. Their counselor consulted with Nicole’s counselor. Both suicide. Their counselor consulted with Nicole’s counselor. Both professional school counselors spoke with Eisel who denied professional school counselors spoke with Eisel who denied thinking about killing herself. Shortly thereafter, Nicole’s friend thinking about killing herself. Shortly thereafter, Nicole’s friend shot and killed Nicole Eisel, then herself.shot and killed Nicole Eisel, then herself.

Court Conclusion:Court Conclusion:Professional school counselors have a duty to use reasonable means to Professional school counselors have a duty to use reasonable means to

prevent a suicide.prevent a suicide.As a result of this case, professional school counselors (in MD) must As a result of this case, professional school counselors (in MD) must

always tell the parent whenever there is any indication from a child always tell the parent whenever there is any indication from a child or someone else that the child is thinking about suicide, regardless or someone else that the child is thinking about suicide, regardless of the seriousness of the threat. They must also inform the of the seriousness of the threat. They must also inform the principal.principal.

Summary/ConclusionSummary/ConclusionDue to the constantly changing issues encountered by Due to the constantly changing issues encountered by

professional school counselors, here are a few professional school counselors, here are a few guidelines to follow when dealing with ethical issues.guidelines to follow when dealing with ethical issues. 1. Always document in writing what you did and 1. Always document in writing what you did and

why you did it. why you did it. 2. If you did not follow a policy, document why you 2. If you did not follow a policy, document why you

did not.did not. 3. Know federal, state, and local laws, regulations, 3. Know federal, state, and local laws, regulations,

policies, and guidelines.policies, and guidelines. 4. Consult with a colleague or supervisor when you 4. Consult with a colleague or supervisor when you

have questions or doubts.have questions or doubts. 5. Read and use resources.5. Read and use resources. 6. Consult with a lawyer when appropriate.6. Consult with a lawyer when appropriate.