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Chapter 8
Malpractice and Resolving Legal and Ethical Challenges
FOCUS QUESTIONS
1. What do you think are the most common reasons that clients bring malpractice
lawsuits against counselors and other mental health professionals?
Points instructors may want to make:
2. How does a counselor determine whether a client is suicidal?
Points instructors may want to make:
3. How do you think you would react if you were a licensed counselor and received a
registered letter from your licensure board informing you that you had been accused
of professional incompetence by a former client?
Points instructors may want to make:
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information confidential. The counselor should avoid talking to anyone else about the
complaint.
4. Do you think it wise to avoid telling anyone if you receive a notification of a complaint
against you? Why, or why not?
Points instructors may want to make:
5. Under what circumstances do you think you would report another counselor for
unethical behavior?
Points instructors may want to make:
IN-CLASS ACTIVITY
Title: Being Accused of Unethical Conduct
Learning
Goal: To help students prepare for having their actions questioned by others.
Procedures: Ask a student to role play a counselor whose 22-year-old client committed
suicide last week. The client had seen the counselor only once, had a history of
depression but had never been treated for it before, and presented no warning
signs of suicide during the session. Yesterday, the family filed a malpractice law
suit against the counselor. Have the counselor role play a conversation with a
friend, who is also a counselor, about his or her feelings and reactions to this
situation. Process the role play in class.
Discussion
Questions: How might you feel in such a situation?
What should you avoid doing in this situation?
What are some things you should do after losing a client to suicide—or during
other periods of professional difficulty—to take care of yourself emotionally?
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Point/Counterpoint (Debate) Topics
Title: Competence in Specialty Areas of Counseling
Learning
Goal: To consider the arguments for and against licensing counseling specialties.
Procedures: Assign (or allow students to volunteer) 2 groups of students (preferably 3-5
students per group) to each take one of the positions described below and
prepare a 5-minute argument in favor of that position. Have each group present
its argument. Next, allow the groups to confer for 2 minutes and then have each
group present its rebuttal to the other group’s argument. Lastly, have the class
members who served as the audience vote for which side was most persuasive.
Point: Counselors, as independent professionals, should be allowed to determine
what specialty areas of counseling they have the competence to practice.
vs.
Counterpoint: To assure consumers of competence services, counselors should be
required to obtain specialty licenses to practice in specialty areas such as family
counseling or substance abuse counseling.
Title: Counselors’ Use of Diagnosis
Learning
Goal: To consider the arguments both for and against counselor participation in the
process of diagnosing clients using the DSM system.
Procedures: Assign (or allow students to volunteer) 2 groups of students (preferably 3-5
students per group) to each take one of the positions described below and
prepare a 5-minute argument in favor of that position. Have each group present
its argument. Next, allow the groups to confer for 2 minutes and then have each
group present its rebuttal to the other group’s argument. Lastly, have the class
members who served as the audience vote for which side was most persuasive.
Point: Counselors should provide DSM diagnoses to clients because rendering a
diagnosis can be helpful to clients.
vs.
Counterpoint: Counselors should avoid diagnosing clients using the DSM system
because rendering a diagnosis is potentially harmful to clients.
OUTSIDE CLASS ACTIVITY
Title: Developing Special Expertise in Counseling
Learning
Goal: To help students understand how counselors go about developing expertise in a
new area.
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Procedures: Assign students to interview a counselor who provides specialized counseling
services, such as substance abuse counseling, counseling young children,
TeleMental Health counseling, rehabilitation counseling, EMDR therapy, or
divorce mediation. Instruct students to inquire about should ask the counselor
how the counselor developed his or her expertise in their particular specialty
area. Students should also ask about the counselor’s very first clients within the
specialty area and how he or she worked with those clients to ensure that they
were receiving competent services. Have a class discussion regarding these
interviews.
Discussion
Questions: What does it take to become competent in a new area?
Does a counselor’s first client in a new area receive competent services?
How can competence be ensured?
Topic for Self-Reflection/Journaling
Topic: You are a counselor working in a community mental health agency and you discover
that your supervisor has been engaged in unethical practices. Reflect upon your
emotional reaction to the situation and process potential courses of action for
addressing the situation. Consider what you have learned about ethical and legal
complaints filed against professional counselors, resolving ethical/legal issues, and
ethical standards that apply to this situation.
CASE STUDY
Justin is a new counselor in a middle school. This is his first job after completing his
master’s degree in counseling. Justin’s colleague, Mike, has been a school counselor for 20 years
and has been at this particular school for 10 years. Both Justin and Mike report directly to the
principal. In talking to Mike, Justin learns that Mike does not belong to any counseling
professional associations, never attends any workshops, and does not like being a counselor.
Mike does the least amount of work possible during each school day. About halfway through the
school year, Justin realizes that many of the students assigned to Mike for counseling are coming
to see Justin and that most of the teachers in the school seek Justin out for consultation as well.
Comments from faculty, parents, and students have led Justin to believe that Mike tells students
that their problems will pass with time and never follows up on any pressing issues. Justin
believes Mike is acting unethically in not doing his job. How should Justin handle this situation?
Case Study Discussion
The ethical standards require a counselor to first seek an informal resolution directly with
another counselor if a belief exists that the other counselor is acting unethically. Justin should
first reflect upon whether Mike is acting unethically. Rather than address a general lack of
positive counseling practice as an unethical act, it would be better for Justin to be alerted to
situations in which children or others may be at risk because of Mike’s lack of professionalism.
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If someone is at risk, then Justin would need to talk with Mike about the situation to try to
resolve it. In a situation like this one, Justin’s best course of action would probably be to refer
any faculty, parents, or students who had complaints about Mike’s behavior to the principal.
Justin should focus on doing his job well. If the situation with Mike does not improve or resolve
itself—through Mike leaving or being removed from his position—or if Mike’s behavior
distresses Justin on a daily basis, Justin should consider transferring to another school or seeking
another job.
SHORT PAPER OR ORAL CLASS PRESENTATION TOPICS
1. Write a memo to your supervisor asking for legal advice about a troubling situation that has
occurred at work.
2. Create a plan for developing special expertise in an area of counseling after you have
completed your master’s degree.
3. List behaviors of other counselors that you believe you would have to report to a
supervisor or an ethics committee, if the counselor did not agree to cease these
behaviors.