Law and Ethics for Practitioners in Counseling and Guidance · rights of the consumer as well. This article deals with pertinent aspects of law and ethics as they relate to pr.1cti

EDUCATIONAL PERSPECTIVES I 3

Law and Ethics for Practitioners in Counseling and Guidance

Dean L. Hummel

Callis' declares that there is a considerable body of law that directly impinges on the practice of counseling: "It is equally abundantly clear that counselors and counselor educators are not conversant with this body of law. A perusal of professional journals (APGA-AACD and APA journals) reveals almost no articles dealing with this body of law. An examination of representative college catalogs reveal very few courses available to counselors on this topic." 2

Van Hoose states that "Any profession so widely practiced and having such potential for both positive and n1.>gative influences must pay particular attention to the ethical principles and issues that find their way into pro­fossional practice. Clearly, ethics has received far too little attention in the counseling profession. For example, many students in counseling are obtaining graduate de­grees without ever having had more than a lecture or two on professional ethics. And many people now work­ing as fulltime counselors have little understanding of the ethical implications of their work. These are serious omis­sions that must be dealt with if counseling is to receive the public acceptance and legal recognition necessary for true professional status. I view this matter as critical to the future of the profession."3

Within this last decade, laws and regulations concern­ing counseling have increased. During this time, consum­ers have come to expect more and better services; likewise, they have become aware of their legal rights. Consequent­ly, more than at any other time in the history of counsel­ing, counselors must know their legal boundaries and responsibilities.

There are several clues which strongly suggest that counselors may face more litigation in the future. For example, the American Association for Counseling and Development (formerly APGA) and the American Psy­chological Association encourage members to carry liabili­ty insurance. Also, counselors function in a variety of work settings which introduce a range of problems that can lead to potential liability charges. Today's counselors are assertive and open to new techniques and approaches. This, too, opens the door for litigation.

For specific legal problems, counselors should consult attorneys. However, there are several ways in which counselors may be better prepared and may prevent legal problems: Counselors should become familiar with (1) federal and state laws concerning their profession;

(2) state department and local school regulations related to their work; (3) court decisions related to counseling, and (4) ethical standards and guidelines offered by their pro· fessional organizations.

The need for practitioners in the helping professions are obvious, not only for their own protection and to guard the integrity of the profession and confidence of the consumer, but to protect the health, welfare, and rights of the consumer as well. This article deals with pertinent aspects of law and ethics as they relate to pr.1cti­tioners in counseling and guidance.

ETHICAL STANDARDS

Almost all recognized professions have adopted a code .-ind system of ethics. Such codes and systems mnke up the ethical standards that provide guidelines for profes­sional practice and behavior. The counseling profession is among those that have adopted ethical standards for its members. In addition lo ethical standards, a considerable body of law directly impinges on the practice of counsel­ing and guidance. However, the hallmark of a profession is that its members ndopt standards of practice and ndhere to such standards in providing their services. Ethi­cal standards stipulate conditions of control for the practi­tioner. Ethical standards also define services to be provid­ed which are appropriate lo training and competencies of practitioners in the profession. It is assumed that laws of credentinling and licensing will provide the base for entry into practice. As Flexner~ found in his 1910 Carnegie Foundation study of medical school education, likewise, there exists today a wide diversity of standards curricula and organization involved in the education for the help­ing professions. Because of this wide diversity, codes of ethics tend to become the bases for judging practice, consumer protection, and legal considerations.

Three Ethical Codes

For counselors, three basic statements of ethical practice and behavior apply to work in the profession. Two of these statements are the Etlrrcal Standardss of the American Personnel and Guidance Association (APGA) and the Etltical Principles of Psycliologists6 of the American Psy­chological Association (APA). These codes of ethics and professional standards are expected to be practiced by members of the associations. Failure to abide by the stan­dards may result in being expelled from membership in

4 /EDUCATIONAL PERSPECTIVES

the association. A third statement of ethical standards is contain1.>d in regulations pertaining to counselor licensure. Among such standards, the Virginia regulations will be cited as an example of a legal regulation for counselors. A statement of ethical standards is contained within the Reg11Jatio11s of the Virginia State Board of Professional Counselors as "Section V, Ethical Standards,"7 These stan­dards can, in effect, be viewed as law as well as a code of ethics. A breach of the stated code of ethics can result in litigation against a professional counselor and possible revocation of license.

Ethical standards adopted by the two professional associations cited above and by the Virginia Board tend to cover many of the same aspects of practice, although topics within the codes vary. Table I, which compares the topics of these three codes, covers the scope of counselor practice for practitioners. 8 According to an unofficial opin­ion of a judge, the several codes of ethics mentioned here would apply to counselor practice whether or not the counselor holds professional association membership or is a licensed professional counselor.

Basically, these standards are concerned with counse­lor responsibilities, competence, client relationships, and confidentiality. In addition, both APA and several divi­sions of APGA have adopted the following standards for measurement and evaluation: Sta11dards for Ed11catio1111l 1111d Psyclwlogical Tests 1111d Ma1111als9 and "The Responsible Use of Tests: A Position Paper of AMEG, APGA, and NCME." Ill Specific applications of the APGA Ethical Stan­dards appropriate to each of the topical statements are il­lustrated in the Ethical Sl1111dards Casl'lrook" by Callis.

Assets and Limitations

According to Talbutt 12 ethical standards are both assets and limitations to the counseling profession. Ethical stan­dards arc generally adopted to help clarify a professional's responsibilities to consumer clients, to employing agencies, and to society at large. Such standards become referral sources for the courts and here conflicts and litigation matters come into play. Interpretations of standards and application to evidence are often a matter for the courts to decide. Frequently the situation, the setting, or the con­flict will affect such interpretations.

The Ethical Standards do not address the behavior of counselors in every situation. Instead, they comprise broad principles which must be interpreted and applied to a particular context. Ethics has been defined as the principles or norms that ought to govern human conduct. According to Van Hoose and Kottler, ethical standards he lp counselors deal with three groups: clients, profes­sionals, and the public; and posit three reasons why pro­fessional codes of ethics exist:

First, ethical standards are designed lo protect the profes· sion from the government. All professions desire autono-

Table I

ETHICAL STANDARDS TOPICS

APGA A. General (member responsibility, professional servicL'S, and

inter-professional relationships) B. Counseling relationship C. Measurement and evaluation D. Research E Consulting F. Private practice G. Personnel administration H. Preparation standards

APA

1. Responsibility 2. Competence 3. Moral and legal standards 4. Misrepresentation 5. Confidentiality 6 Wi:Mare of the consumer 7. ProfL>ssional relationships 8. AssL'Ssment techniques 9. RL>search with human participants

10. Care and use of animals

Virginia Board of Professional Counselors

1. RL'Sponsi bili ty 2. Competence 3. Moral and legal standards 4. Public statements 5. Confidentiality 6. Welfare of the consumer 7. Profossional relationships 8. Utilization of assessment 9. Pursuit of rL'Search activitil'S

my and seek lo avoid interference and regulations by law­makers. They prefer to regulate themselves through pro­fessional codes or standards than risk regulations from legislative bodies. Second, ethical standards protect the professions from the self-destruction of internal bickering. Finally, ethical standards are designed to protect the thera­pist from the public. If he behaves within the code he has some protection for malpractice, l 3

In summary, ethical standards are significant in three ways: (1) They are self-imposed regulations; (2) they pre­vent internal disagreement, and (3) they provide protec­tion in case of litigation. The first two need little explana­tion; the last, however, should be considered at some length due to recent litigation.

PRIVILEGED COMMUNICATION

Definitions and Degrees

Educators, including school counselors, school social workers, and others in pupil personnel services, as well as mental health personnel often struggle with ethical de­cisions regarding the disclosure of confidential informa-

tion obtained from clients in a professional relationship. Should professionals reveal this information? If so, under what circumstances? What are the legal responsibilities and obligations for counselors and mental health person­nel? In order to answer these questions, this section of the article defines and discusses the legal implications of confidentiality and privileged communication.

Litwack, Rochester, Oates and Addison write that privileged comm1111ication and co11fidc11tiality have often been given the same meaning in the literature even though there is an important difference between the two terms. They explain: "Privileged communication refers to the right of the counselor to refuse to divulge any confi­dential information while testifying in a court of law." 14

Confidentiality, on the other hand, has an ethical meaning and "refers to a professional's decision that he should not and will not divulge what has been revealed to him in his contact with a client." 15 Privileged communication, then, is the legal right of counselors not to reveal confi­dential information.

Marsh and Kinnick describe two degrees of privileged communication: absolute and conditional. They explain that absolute privilege is "unconditional" and may be granted "only by legislative or constitutional action."16 It does not require that certain conditions be present for its existence. They maintain that it "exists only with respect to the official proceedings of legislative and judicial agen­cies."17 Conditional privilege means that such things as "absence of malice, fair comment, and official status"18 be present and the courts determine if these conditions have been met. They conclude that when psychologists and counselors have privileged communication it is conditional.

The courts generally use Wigmore's four fundamental conditions to determine whether a communication should be privileged: (1) The communications must origi­nate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between parties; (3) the relation must be one which, in the opin­ion of the community, ought to be sedulously fostered, and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. 19

Privileged communication is for the benefit of the client, not the counselor. Boyd and Hiensen write, "Privi­lege itself is basically an extension of the Fifth Amend­ment privilege and, hence, is not the professional's but the client's".20 Thus, a client can waive that right. McDer­mott explains that privileged communication has devel­oped because of the conflict between the individual's right to privacy and the need for justice. The following statement by McDermott explains the reasons for the exis-

EDUCATIONAL PERSPECTIVES/ 5

tence of privileged communication:

The nature of any particular physical or emotional an­guish may be so intimate. suggestive or potentially injurl· ous that disclO!ure of the facts would subject the citizen to undue pain, loss of stature and injury to reputation. The citizen would be most reluctant to engage in relation· shi~ with the helping professions if the intimacies of his private life were vulnerable to disclosure before the entire public. 21

History of Privileged Communication

Privileged communication has been established by common law and by legislative action. Burgum and An· derson report common law originally allowed privileged communication in only two relationships: husband-wife and attorney-client. They explain that legislative bodies have enacted statutes which have expanded the right to "such relationships as clergyman and penitent, reporter and informer, doctor and patient, and psychologist and client." 22 They both advise that in the absence of state legislation counselors can be requested to testify about in­formation obtained in the counseling session.

The expansion of privileged communication rights have also included public school counselors. Litwack reports on a national survey conducted by the Privileged Communication Committee of the American School Counselor Association for the purpose of determining the status of privileged communication statutes.23 Litwack also reports rapid growth in legislation for privileged communication and reveals that 12 states "provide for full coverage of testimonial privileged communication be­tween a school counselor and counselee" as opposed to only two states in 1968.24 Alexander reports that 14 states offer counselors privileged protection: Connecticut, Dela­ware, Idaho, Indiana, Oklahoma, Maine, Michigan, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, South Dakota and Kentucky.25

Exceptions to Privileged Communication Statutes

There are exceptions recognized by the courts even when privileged communication statutes exist. Wliale11 v Roc,26 a US Supreme Court case, ruled as constitutional a New York statute requiring doctors to provide the state with copies of all prescriptions for certain drugs. A group of patients brought action claiming that "the doctor-patient relationship is one of the zones of privacy accorded con­stitutional protection" and was, thus, violated by the stat­ute. In its decision, the Court maintained the following point of law regarding privileged communication: Physician-patient evidentiary privilege is unknown to the common law; in states where it exists by legislative enact­ment it is subject to many exceptions and to waiver for many reasons.27

Privileged communication statutes are generally strict· Iy construed by the courts. Unless a profession is granted

6 /EDUCATIONAL PERSPECTIVES

privileged communication by statute, the courts will not grant such privileges. In Untied States v /ask1ewisez,28 the Court ruled that in the absence of a statute there was no accountant-client privilege. The Court cited Wigmore:

For more than three centuries it has been recognized as a fundamental maxim that the public (in the words sanc­tioned by Lord Harwicke) has a right lo every man's evi­dence .. . any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule ... . 29

In Dav1so11 v St Fire & Marrne Ins Co, the Supreme Court of Wisconsin emphasized the following point: If sought-after privilege arises from the common law it must be adopted either by Supreme Court rule or by stat­ute, and not on a case-by-case basis.3°

Likewise, the court, in Stale v Driscoll, urged to create a privileged relationship for social workers, stated: It is for the legislature, not the courts, to determine whether communications between social workers and those they serve or counsel are to be privileged.31

Both cas1..>s maintain that common law privileges should not be expanded on a case-by-case basis.

Recently, a court ruling emphasized another area in which the physician -patient privilege may be lost. Privi­leged communication rights do not prevent doctors and psychotherapists from their duty to warn others when they are in danger. In Tarasoff v Rl'gc11ts of The U11wersily of California, the court determined that a doctor or psy­chotherapist has a responsibility to warn threatened per­sons when they may be harmed. The court explained that "The protective privilege ends where the public peril begins."32 The ruling in Tarasotf (supra) displays thinking similar to that revealed in Etlrical Standards:

Section B: Counseling Relationship 4. When the client 's condition ind icat t.~ that tht.>re is clear and imminent dangt.•r to the client and others. the member must takl! rna~onable peri.onal action or inform responsible authorities.J3

Group Counseling

Group counseling presents the counselor with some unique problems regarding confidentiality.l-1 Burgum and Anderson report that some jurisdictions have held that the presence of a third party has meant that privileged communication has been lost to all parties involved and advise counselors to avoid the discussion of criminal acts during group counseling unless clients are willing to take the risk after they have been informed about the possible lack of confidentiality. Van Hoose and Kottler explain that the group leader, even more than in individual counseling, has an ethical duty to plan and disclose basic rules for counseling sessions. :JS

The courts have indicated that privileged communica­tion rights may be lost, even in recognized confidential relationships-such as husband and wife- with third par-

ties present. The US Supreme Court in Wolfe v United Stalcsll> ruled that communications between husband and wife made in the presence of a third party are generally not privileged. More recently and citing Wolfe, the US Su­preme Court determined in Perira v United States37 that, "The presence of a third party ... negatizes presumption of privacy."38

Summary

Because counselors, social workers, and other profession­als in certain states do not have privileged communication by statute, they probably would not be granted privileged communication in court. For example, the courts have determined that in the absence of a statute, accountants do not have accountant-client privilege. Also, the courts have indicated that privileges which originate from common law should not be expanded by case law but only by the legislature or Supreme Court. Likewise, unless specific rights are spelled out for group counseling, it is unlikely that the courts would grant privileged com­munication. Even when counselors have statutory privi­lege regarding communication, there are exceptions and waivers.

Privileged communication has been defined as a legal right, but confidentiality is described as an ethical deci­sion. Counselors always have an ethical duty not to reveal confidential information obtained in the counseling setting unless there is a legal obligation or unless someone's health or safety is in danger. The status of a state's privileged communication statute does not prevent a professional counselor from maintaining confidentiality in daily practice.

Counselors and other professionals in states without privileged communication privileges should work through their state and local professional organizations to lobby for state legislation granting privileged communica­tion. However, they should bear in mind that such a stat­ute would be limited and would be subject to many ex­ceptions and interpretations by the courts.

CIVIL LIABILITY

Definition of Civil Liability

Counselors, social workers, and a variety of educators and other professionals face potential civil liability litiga­tion. Thus, it is important that professionals understand some major areas which could lead to civil liability litiga­tion. This section identifies some of these areas and dis­cusses pertinent court cases with their implications for certain professionals.

Burgum and Anderson explain that civil liability means that a person can be sued "for not doing right or for doing wrong to another."39 They explain that profes­sionals are expected to follow certain legal standards of conduct in their work and when they do not, court

action can result. Of the two types of liabilities - Constitutional torts and common torts - this article will be limited to discussion on liabilities related to common torts. Alexander, Corns and McCann describe tort as "any civil wrong independent of contract" and summarizes:

The law also grants to each individual certain personal rights not of a contractual nature, such as freedom from personal injury and security of life, liberty, and property. The law imposes corresponding duties and responsibilities on each individual to respect these rights of others. If, by speech or other conduct, we fail to respect these rights, thereby damaging another individual, we have committed a tort and may be financially liable for our action. 40

Malpractice

Van Hoose and Kottler describe malpractice as: "Damage to another person as a result of negligence." 41 Negligence is described as: "A departure from usual practice; that is, acceptable standards were not followed and due care was not exercised."42 The authors report that malpractice law­suits against counselors are few when compared to those against physicians, but they believe counselors will face more legal action in the future. They conclude that mal­practice in counseling must follow the same principles as medical malpractice because firm guidelines for nonmedi­cal therapists have not been established.43

Burgum and Anderson establish three conditions which must be present for a counselor to be sued for negligence: (1) A duty must be owed the plaintiff by the defendant; (2) that duty must be breached, and (3) there must be a causal link between the breach and the plain­tiff's injury. 44

Both authors also write that counselors are judged by standards suitable to their profession.45 They explore issues pertaining to the counselor's potential liability when a client fails to make progress after counseling, or when a counselor uses an ineffective technique or ap­proach. 46 As in the field of medicine and based on /01!11sto11 v Rodis,47 they conclude that if counselors act in good faith they are probably not responsible for a client's lack of progress or a mistake in judgment if it were the type of mistake any "careful and skillful"48 counselor could make. However, Burgum and Anderson note that the counselor is responsible for referring the client to another professional if the problem is beyond the counselor's skill and ability. 49 Likewise, counselors were advised against going beyond their professional scope in such areas as dis­pensing drugs and medicine.50 This also applies to a varie­ty of educators. Professionals should not go beyond their professional scope of training.

STANDARDS AND REGULATIONS

Laws and court cases dealing with counseling and mal­practice are limited. Consequently, this discussion will in-

EDUCATIONAL PERSPECTIVES/ 7

elude some appropriate court cases dealing with physi­cians and psychotherapists; implications for public school counselors and other professionals can be drawn from these cases. For example, physicians are expected to exer­cise skill according to the standards of others in their pro­fession. Counselors, likewise, would be expected to display behavior suitable for their profession.

The law imposed on a physician occupies a position of trust and confidence as regards his patient, and it is his duty to act with the utmost good faith; if he knows that the treatment adopted by him will probably be of little or no benefit, and that there is another method of treatment that is more likely to be successful, which he has not the training or facilities to give ... , he must advise his pa­tient. .. . 51

In a similar manner, counselors are expected to refer clients to another professional when necessary:

Section B: Counseling Relationship 10. If the member determines an inability to be of profes­sional assistance to the client, the member must either avoid initiating the counseling relationship or immediate­ly terminate that relationship.52

Court Cases

A 1960 negligence case illustrates charges brought against a counselor for professional conduct in a college setting. In Bo:~ust v lverson,53 the parents of Jeannie Bogust brought action against the college counselor claiming three counts of negligence: (1) The counselor foiled to get psychiatric assistance for their daughter; (2) the counselor failed to advise them of their daughter's condition, and (3) the counselor had failed to "provide proper student guidance."S4 The counselor's duties had included the "maintenance of a counseling and testing center.")5 After working with the student for approximately five months, the counselor terminated the professional relationship. Six weeks later Jeannie Bogust committed suicide. The court ruled in fovor of the counselor and determined that the counselor, a professor of education with a PhD, was not trained in medicine or psychiatry and could not be held liable for a standard of conduct beyond his training and knowledge. The court concluded: "But there is no allegation of fact that would have appraised the defen­dant, as a reasonably prudent man, that she had such ten­dencies.")6 "Even assuming he had secured psychiatric treatment for Jeannie or that he had advised her parents of her emotional condition or that he had not suggested termination of the interviews-it would require specula­tion for a jury to conclude that under such circumstances she would not have taken her life."57

In explaining this case, Burgum and Anderson write, "The parents would have to show that a person with the background and training of the average counselor 'should have known' that Jeannie was going to commit suicide

8 I EDUCATIONAL PERSPECTIVES

before he could be held \iable."58 However, they add that counselors today would probably not "get off this easily."59 Van Hoose and Kottler draw a similar conclu­sion by explaining that: "A failure to take some direct precautions with a potential suicide would almost certain­ly be ruled negligent in today's legal dimate."60 Although the court found for the counselor in Bogust, the case is a reminder to counselors that litigation for negligence has been brought against a counselor with professional con­duct an issue.

A more recent case illustrates that a physician or psy­chotherapist may be liable for failure to warn a client or others of potential danger. In Tarasof f t' Regents of The University of Califomia,61 Poddar, a patient of a psycho­therapist employed at the University of California at Berkeley, told the psychotherapist that he intended to kill a particular person. The psychotherapist informed the University police who detained Poddar for a short time, but released him.

Poddar then killed Tatiana Tarasoff. The parents sued the University regents, the psychotherapist, and campus police. The lower court found for the defendants, but on appeal the Supreme Court of California found the defen­dants negligent in their "duty to warn."62 The court concluded: " .. . that a doctor or a psychotherapist treating a mentally ill patient, just as a doctor treating physical ill­ness, bears a duty to use reasonable care to give threat­ened persons such warnings as are essential to avert fore­seeable danger arising from his patient's condition or treatment."63

The court also addressed the public policy of privi­leged communication when it conflicts with disclosure necessary to warn others: "We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield in in­stances in which disclosure is essential to avert danger to others."°"

The Etliica/ Standards state a similar responsibility for counselors: "When the client's condition indicates that there is dear and imminent danger to the client or others, the member must take reasonable personal action or inform responsible authorities."65 The court decision in Tarasoff66 and the section on "Counselor-Counselee Rela­tionship" in Et/1ica/ S/audards67 clearly suggest that counsel­ors have a duty to warn a person in danger. The court in Tarasofl also indicates that privileged communication be­tween psychotherapist and client "must yield" to "disclo­sure" when someone is in danger.68

The courts have found that psychotherapists should not take advantage of the client-psychotherapist relation­ship for personal gain. In Zipkin v Freeman,6' a psychia­trist was found guilty of mishandling the transference phenomenon and the client was awarded damages. In that case, the psychiatrist directed the patient to move into his apartment over his office, entered into a special re lation-

ship with her, and urged her to invest money in his farm. The court found the psychiatrist guilty of professional negligence.

In Doe v Roe aud Poc,70 a former patient brought a tort action against her psychiatrist for unlawfully invad­ing her privacy by publishing a book which revealed her personal thoughts and feelings. The patient's former hus­band co-authored the book and was also named in the charges. The Supreme Court of New York found for the plaintiff and offered the following reasoning: " ... a physi · cian who enters into an agreement with a patient to pro­vide medical attention impliedly covenants to keep in confidence all disclosures made by the patient concerning the patient's physical or mental condition as well as all matters discovered by the physician in the course of examination or treatment." 71 The implication for counsel­ing is that professionals should not take advantage of the client relationship for personal gain.

A case involving a tenured high school counselor spe­cifically illustrates the thinking of the court regarding the counselor-client relationship. Jn Goldin v Board of Ed11ca­tio11,72 a New York appelate court held that the school board's investigation of the counselor's relation with a female student was not an invasion of the counselor's privacy. The charge maintained that the counselor slept with an 18-year-old female in her home while her parents were absent. The female was a recent high school grad­uate who had received counseling from Goldin two months earlier. The court made the following determination:

A professional teacher entrusted with forming the moral and social values of our young people must ;iccept the reality that he is held to a high or strict st;indard of con­duct .... (Alpproximately two months after having a par­ticular student under his guidance, plaintiff is accused of going lo bed with her. Such conduct might be susceptible to the presumption that the intimate relationship did not develop overnight. The incident could so upset the com­munity as to conceivably undermine the confidence of stu· dents and parents of students who now seek plaintiff's guidance. This, in turn, could go to the heart of plaintiff's ability to carry out his duties.73

Summary

This article has identified several areas in which counsel­ors and other professionals might face civil liability litiga­tion. They include (1) falling below conduct appropriate to one 's profession; (2) failing to warn or take action when someone is in danger; (3) taking advantage of the counseling relationship for personal gain, and (4) advising beyond one's skill and training. Should professionals face charges of malpractice, they would be judged by standards appropriate to their profession. Consequently, counselors and other professionals should be familiar with and oper­ate within the framework of their professional guidelines and regulations.

THE RIGHTS OF MINORS

Particular situations may lead to malpractice for counse­lors and other professionals. Recent court rulings have ex­panded children's rights and, consequently, school offi­cials, including counselors, have been affected.74 Nolte notes that since the Fourteenth Amendment and Bill of Rig/its have been applied to children by the courts, "Inter­action between adults and children-particularly in school situations-have been altered drastically."7S While the rights of minors have been expanded in a number of areas, this portion of the article is limited to two areas: child abuse and abortion. Both of these areas should be of special interest to educators, social workers, and mental health personnel.

Child Abuse

A right of children identified by Van Hoose was their right from physical abuse. Professional educators have a major responsibility to report child abuse and in some states they may be held liable in civil action when these responsibilities are not met. Ferro writes: "When the Child Abuse Prevention and Treatment Act (PL 93-247) was signed into law on January 31, 1974, it provided a na­tional focus for all children in the United States needing protection."76 Within the last decade, every state has passed or revised existing laws dealing with child abuse. Some of these laws require specific professional groups to make child abuse reports to either the police or agencies involved in social service.77

Cashey and Richardson present a breakdown of the professions required to report child abuse according to state laws:

Those required to report . . . include ... the medical pro­fession (47 states). Following, in order, are social workers (22 states), teachers (16 states), school authorities (13 states), and an all-inclusive "any personff category (3 states). There is some overlap in the teacher-school au­thority reporting groups, but some states do separate the categories. 78

In addition, 39 states allow for the release of information otherwise restricted by professional standards or dient­counselor relationships due to privileged communica­tion.79 One example of the legal ramifications for educa­tors in child abuse is illustrated by the requirements of New York City. Teachers who fail to report child abuse may be found guilty of a misdemeanor along with civil liability for damages.80 Virginia law, for example, requires that educators report child abuse and states that such fail­ure may result in a fine. It also grants immunity from both civil and criminal liability to those reporting child abuse.81 Some state laws limit immunity to civil liability. Because state laws vary and because of the possible legal ramifications, counselors, teachers, social workers, and other professionals should become familiar with their

EDUCATIONAL PERSPECTIVES/ 9

state laws and follow these and existing school district regulations.

Shanas calls attention to the seriousness of child abuse in the United States. The author writes:

Some ten thousand children are severely batterl>d each year; 50,000 to 75,000 are sexually abused; 100,000 are 'emotionally neglected;' and another 100,000 are physical­ly, morally, or educationally neglected. 82

Shanas reports, too, that the first case of documented child abuse occurred in New York City over a century ago; however, the author concludes that it has only been within the last ten years that the problem has received national focus.

Educators have a major responsibility in the area o! child abuse. Griggs and Gale maintain counselors must ~ able to recognize child abuse and neglect.83 Schmitt de­scribes child abuse and neglect: "As any condition injuri­ous to the child's physical or emotional health that has been inflicted by parents, guardians, or other caretakers."84

Griggs and Gale give "underweight," "anemia," "bruises," "welts" and "broken bones" as dues which indicate abuse and suggest the school nurse could be of aid to the counselor. In addition, abused children display certain behavioral characteristics. The authors write: "These range from silence, withdrawal, fear, and submissiveness to anger, hostility, and aggression."85

Forrer makes specific recommendations for the school counselor's dealing with child abuse. Forrer advises that counselors maintain established procedures which in­clude referral, medical, and legal reporting information. The suggestion was offered that counselors know their particular state law regarding child abuse and that this in­formation is available from the attorney general's office. In addition, the author emphasizes that counselors should become educated in the area of child abuse and provide information to others in the school. Finally, Forrer suggests that counselors be active in planning cur­riculum which should include information about parent­ing, child care, and the family in order to prevent future problems in child abuse.86

Abortion

The rights of minors have expanded in regard to abortion and have created counseling difficulties for counselors and other professionals. The 1973 Supreme Court ruling that abortion is legal placed school counselors in a state of "dilemma."81 Burgum and Anderson explain:

The Supreme Court decision . . . does not 11ffect the civil liability of a counselor who may be found to have negli­gently interfered with the parent's right to advise a minor child as to the advisability of seeking an abortion. 88

A counselor who too vociferously encourages abortion, or even goes so far as to give actual aid to a woman seeking this solution, . . . may be in legal trouble.89

10 I EDUCATIONAL PERSPECTIVES

Duncan and Moffett criticize professional journals for not addressing the unanswered issues dealing with the counselor's role in abortions.90

In defining the role of the school counselor on abor­tion, they indicate a counselor can establish a setting in which clients examine feelings and evaluate alternatives. They warn counselors against imposing their views and attitudes on their dients.91 Walleat summarizes and places the counselor's responsibilities into four areas: (1) abortion should be viewed in relationship to the student 's total development rather than solely as a crisis; (2) counselors should work in conjunction with other com­munity and school programs; (3) counselors have a re­sponsibility to "process" information, and (4) counselors should aid students in utilizing information about abor­tion, even when schools fail to supply that information. Walleat emphasizes that there are possible legal and ethi­cal issues regarding schools providing abortion information. 92

Several court cases, including US Supreme Court deci­sions, have dealt with minors and abortion. The Supreme Court of Washington, in State of Was/ii11gto11 v Koome,93 determined that a statute which required unmarried minors to have parental consent prior to abortion was an invasion of privacy rights and that it discriminated be­tween types of women. In Planned Parenthood v Da11fortl1,94

the US Supreme Court ruled that a Missouri law which required consent by a parent in the case of an unmarried minor prior to an abortion was unconstitutional. Citing Roe v Wade, the court concluded: "The State may not con­stitutionally impose a blanket parental consent require­ment, ... as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the Silme reasons as in the case of the spousal consent provision, there being no significant state interests ... .''

A more recent Supreme Court ruling on abortion, Bel­lotti v Baird, 95 struck down a Massachusetts statute which required minors to obtain parental consent prior to an abortion. Also, that statute allowed for consent by a judge if parents denied consent and good cause could be shown. Justice Stevens, joined by Justices Brennan, Marsh­all and Blackmon, found the statute to be unconstitutional because "no minor, no matter how mature and capable of informed decisionmaking, may receive an abortion with­out the consent of either both parents or a superior court judge, thus making the minor's abortion decision subject in every instance to an absolute third-party veto."96 The court stated: "We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization can be obtained."97

Talbutt98 reports that the most recent US Supreme Court case dealing with abortion, H.L. etc. Appellarrt v Scott

M. M11tl1eso11 et al.,99 upheld a state law which required doctors, if possible, to notify parents about a minor's re­quest for abortion. The court determined that states may impose such requirements when the girl is dependent on her parents, when she is not emancipated, and when she had made no claims that she is mature enough to make the decision alone or that her relationship with her par­ents might be seriously affected by such notification. This case suggests that counselors and other professionals may have certain responsibilities to the parents of minors under certain conditions.

Counselors should be reminded that Supreme Court rulings may be in conflict with state law. Based on Su­preme Court rulings, minors may obtain abortions with­out parental consent. Talbutt writes, "When references are made to conflicting federal and state laws, federal law takes precedence."100 Burgum and Anderson warn counsel­ors against advising students about medical and psy­chological problems resulting from abortion; they think such action could result in lawsuits because counselors would be going beyond their skill and training and advise that they leave such advice to the medical and psychiatric professions.1°1

Talbutt continues, "Unfortunately, knowledge of the law alone is not the complete answer for school counsel­ors. There are still unresolved issues on which school counselors need additional professional directions." 102

Examples of unresolved questions are: (1) Can counselors be held liable for failure to report abortion plans of minors to parents? (2) Can counselors be held liable for the dissemination of information about abortion, and can this be interpreted as encouraging abortion.103

The counselor's role is unclear in the area of abortion and represents an area for which counselors need addi­tional professional guidelines. Talbott concludes: "Coun­selors, when dealing with this or any other topic in question, should elicit advice from other professionals and legal advice from attorneys working for local school boards who have access to the Virginia Attorney General's Office." 11"'

FINAL SUMMARY AND RECOMMENDATIONS

1. Court rulings and the professional literature have indicated that unless a particular profession is granted privileged communication by statute, none exists.

2. Public school counselors and other professionals face potential civil litigation resulting from a number of areas. The courts have suggested that counselors will be judged according to standards common to their profes­sion. Should one's professional conduct fall below that standard, negligence could result. Also, counselors have a duty to take action when the client or others are in danger.

3. Many state laws require that educators, including counselors, social workers, and others report child abuse.

Some laws grant immunity from litigation to those report­ing child abuse unless such action resulted from malice.

4. The courts, as well as the professional literature, have reminded professionals against advising and treating students in areas which go beyond their skill and training.

5. Professionals, including school counselors, should be aware of and keep abreast of current legal and ethical issues in their field. This is an evolving area which changes continuously.

6. In conflict situations in which counselors find their loyalties divided and have doubts about proper pro­fessional and legal behavior, they should seek advice from other professionals and legal advice from attorneys working for local school boards who have access to the office of the attorney general.

7. Educators should be familiar with and follow all pertinent materials published by the State Board of Education.

8. Counselors should be familiar with the standards of conduct appropriate for their profession. Failure to behave according to acceptable professional conduct or going beyond one's legitimate function can result in litigation.

Footnotes

ICallls, R. "Counseling and guidance and the law" in 111c Stat11s of C11idat1CI' a11d Cmmscl111g m Ille National Sclw<1/s, Washington, DC : American Personnel and Guidance Association, 1979.

21/ltd • pg. 206. 3Van Hoose, W.H. "Ethics and counseling" in Co1111scli11g a11d

H11ma11 Dcvclopme11I, 13 (1). September 1980. ~Flexner, A. Medical Ed11calio11 in Ilic U1111t•d Slalcs a11d

Canada, New York : Carnegie Foundation, 1910. 5American Personnel and Guidance Associiltion. Etlricnl

Sla11dards, 1981. 6American Psychological Association. Ell1ical Pri1rci11lcs of

Psycltologists, Washington, DC · American Psychologicill Association, 1981.

1The State Boilrd or Professional Counselors. Rcg11/atio11s of Ilic Board, Richmond, Virginia . Department or Professions and Occupations Regulations, 1977.

8Talbutt, L.C. and D. Hummel. C111dclincs for Legal Rcspo11s1/lilities i11 Vocational G111da11cc, Virginia Tech, 1981.

9 American Psychologicill Association. Slandards for Ed11calro11al a11d Psyclrologiral Tests a11d Man11al, revised edition, Washington, DC : American Psychological Association, 1973

1°''The Responsible Use or Tests; A Position Paper of AMEC, APGA and NCME," in Mcas11rcrne11t a11d Evafllatio11 ill G111da11cc, 5 (2), 1972, pp. 385-388.

llCallis, R. (ed). Ethrcal Standards Casebook, 2nd edition, Washington, DC : American Personnel and Guidance Association, 1976.

1~albutt and Hummel, op. czl, see Footnote 8.

EDUCATIONAL PERSPECTIVES I 11

Dvan Hoose, W.H. and J. Kottler. Ethical and Legal lss11cs i11 Cot111scl111g Psyclwtlreral'Y· San Francisco : Jossey-Bass Publishers, 1978, pg. 8.

14Litwack, L. with D. RochL>ster, R. Oates ilnd W. Addison. "Testimonial privileged communication and the school counselor" in 71rr Sclwo/ C()lmselor, 17, 1969, pg. 108.

151bid. 16Marsh, J.J . and B.C. Kinnick. "Let's close the

confidentiillity gap" in Pcrsormcl nnd G11ida11cc /011rnal, 48, 1970, pg. 363.

171/lid. 18/bid. 19Ware, M.L. (ed). Law of G11idaricr 1111d Co1111scli11g,

Cincinnati: The W.H. Anderson Co., 1964, pg. 8. 2°Boyd, R.E. and R.D. Heinsen. "Problems in privileged

communication" in Prrsc1111cl a11d G11idancc /1111mal, 50, 1971. pg. 227.

21McDermott, P.A. "Law and the school psychologist: privileged communication, millpractice ilnd liability" in 1111• School Psyclrology Digrsl, 3, 1974, pg. 25.

22Burgum, T. and 5. Anderson. 77rr Cmmsc/or a11d lire Ulw, Washington, DC : American Personnel and Guidance Association Press, 1975, pg. 14.

23Litwack, L. "Testimonial privileged communication: .l problem reexamined" in 71re School Cmmsefor, 22, 1972, pp. 194-196.

24/bid .• pp. 194-195. ZSAJexander, David. HLegal issues in guidance" in T.H.

Hohenshil and J.H. Miles, eds .. Schocil G11id1111cc Suvicrs, Iowa : Kendal/Hunt Publishing Co .. 1976.

26Wlialerr v R<1e, 97 S. Ct. 869, 1977. 27/llid., pg. 870. 28U11iled Stairs t• /nskiewisc:, 278 F. Supp. 525, Pennsylvania

1968. 29Jl1id., pg. 530. 30Dnvison v St Fire & Mari11r l11s Co. Wisconsin, 248 N.W.

2d 433, 1977. 31Statc v Driscoll, Wisconsin, 193, N.W. 2d 851, 1972. 32Tnrasoff v Rrgcrrls of tlte U11ivcrsity of Califomia, California,

529 P. 2d 533, 1974. 33American Personnel and Guidance Association, 011. cit., see

Footnote 5. 34Burgum and Anderson, op. cit., pp. 22-24, see Footnote 22. 35Viln Hoose and Kottler, op. cit., pg. 139, see Footnote 13. 36Wolfe u United States, 54 S. Ct. 279, 1933. 37Pcrira 11 U11ilcd States, 74 S. Ct. 358, 1974. 331bid .• pg. 358. 39Burgum and Anderson, op. cil., pg. 25, see Footnote 22. 40Alexilnder, K. with R. Corns and W. McCann. P11/llic School

Law, St. Pilul, Minnesota : West Publishing Co .. 1969. 41Van Hoose and Kottler, op. cit .. pg. 96, see Footnote 13. 42/liid .• pg. 97. 431/lid .. pg. 98. 44Burgum and Anderson, OJ'. cit .. pg. 26, see Footnote 22. 451/lid .• pg. 34. 46/bid., pp. 33·34. 47/o/111slo11 v Rodis, 251 F 2d 917, 1958. 48/bid .. pg. 34. 49Burgum and Anderson, op. cit., pg. 35, see Footnote 22.. 50/bid .. pg. 56.

12 / EDUCATIONAL PERSPECTIVES

5161 American /1mspmdcuce 2d at 99. 52Amcrican Personnel and Guidance Association, op. cit .. sec

Footnote 5. 53Bogus/ 11 lverso11, Wisconsin 102 N.W. 2d 228, 1960. 541111d., pg. 229. ss11i1d. 561l11d., pg 230. 571111d., pg 233. 58Burgum and Anderson, 011 cil .• pg. 31, see Footnote 22. 591111d. "°Van Hoose and Kottler, 01'· d i , pp. 99-100, sec

Footnote 13. 61Tarasorf, "I'· crt., see Footnote 32. 621111d .. pg 565. 631111d . pg 559. ~/111d~ pg. 561. 65American Personnel and Guidance Association, 011. cit., sec

Footnote 5. 6&farasorr. " I'· cit., see Footnote 32. 67 American Personnel and Guidance Association, 01' ett., sec

Footnote 5. 6"rarasoH, 1111. crt., pg 561, sec Footnote 32. 69~i1'ki11 11 Frce111a11, Missouri 436 S.W. 2d 753, 1968. 7°0111.· 11 Roe a11d Poe, New York 400 N.W.S. 2d 668, 1977. 71 1111d .. pg 668. 72G11/dr11 t• Board of Ed11c11tio11, New York 357, N.Y.S. 2d 867,

1975. 73 //tid., pp. 869-870. 74Nolle, M.C. "How lo keep your guidance counselor out or

court" in A111erica11 Sclw,,/ Board /011ma/, 164, 1977, pg. 44. 75111id. 76Ferro, Frank. "Protecting children: the national center on

child abuse and nl'gll'Ct" in C/1i/dl1ood Ed11ca/1011. 52, 1975, pg. 63. 77Griggs, S.A. and P. Gale. "The abused child: focus for

counselors" in Eh.,,11:11tary Sclrool G11ida11ce a11d Co1111se/i11g, 11. 1977, pg. 198.

7Hcashey. O.L. and I. Richardson. "Understanding and helping child-abusing parents" in Elementary Sc/1011/ G111da11cc and Cmmscli ng, 9. 1975, pg. 198.

79/lrid., pg. 199. SOShanas, B. "Child abuse: a killer teachers can help control"

in Plri Delta Kappa11, 56, 1975, pg. 480. 81 Virxinia Amwlated Code, 63.1-248.3 and Virginia A11110/atcd

Code, 63.1-248.5. 82Shanas, "I'· cil., pg. 479, see Footnote 80. 83criggs and Gale, op. cit., pg. 192, see Footnote 77. 8~hmitt, B.D "What teachers need to know about child

abuse and neglect" in Clrildlwod Ed11catim1, 52, 1975, pg. 58. 85Griggs and Gale, 011. cit .. pg. 192, see Footnote 77. 86Forrer, S.E. "Battered children and counselor respon­

sibility" in 17rr Sc/too/ Cormselor, 22. 1975, pg. 165. 87Duncan, J. and C. Moffett. "Abortion counseling and the

school counselor" in 77re Selma/ Co1111s£'1or, 22, 1975, pg. 188. 811Burgum and Anderson, op. cil., pg. 48, see Footnote 22. 891lrid., pp. 193-104. CJOouncan and Morfett, 011. cit .• pg. 190, see Footnote 87 91/bid., pg. 192. 92Walleat, P.L "Abortion information: a guidance view­

point" in 171c School Co1111sclor, 22, 1975, pg. 341. 93Stalc of Wasl1i11gtori 11. Koo111e, Washington 530 P. 2d 260, 1975.

94Pla1111cd Parc11thood 11 Da11forth, 482 U.S. 52, 1976 95Bcllolti v Baird, 47 LW 4969, July 2, 1979 96Ibid .. pg. 4969. 97Jbid .. pg. 4973. 98Talbutt, 011 cit., see Footnote 8. 99H.L. etc. Appe/1111/ v Scott M. Matheson L'I al .. 101 5. Ct. 1164. 100falbutt, op. cil., pg. 47, see Footnote 8. 101Burgum and Anderson, 01•. cit., pg. 52, see Footnote 22. 102Talbutt and Hummel, OJI. cit., pg. 406, see Footnote 8.

Also, L.C. Talbutt, "The counselor and civil liability" in Virginia Pcrsmmd n11d G11ida11cc Journal, 8, 1980, pp. 37·41; L.C. Talbutt, "The status of privilL'gl>d communication for counselors in Virginia" in Virginia Pcrs01111cl and G11ida11ce /111m1al, 8, 1980, pp 20-25; L.C. Talbutt, "The medical rights of minors: some answered and unanswered questions" in The Sclrool Co1111sclor, 27, 1980, pg 5.

103Talbutt and Hummel, "P· cit., pg. 23. 104Talbutt and Hummel, ''11· cit., pg. 24.

References

Aubrey, R.F. "Organizational victimization or school counselors" in 77u! School Co1111sc/or, 20, 1973, pp. 346·347.

Black, H.C. Black's Law Dicti1111ary, revised 4th edition, St. Paul, Minnesota : West Publishing Co., 1968.

Hummel. D.L. with L.C. Talbutt and M.D. Alexander. Law and Etlucs in Co1111scli11g. New York : Van Nostrand Reinhold Co .• Inc., 1985.

Patterson, C.H." Are ethics different in different settings?" in Perso1111el a11d G11ida11cr /011ma/, 50, 1971, pp. 254-259.

Shertzer, B. with S. Stone. F1111damc11tals of G11idancr, 2nd edition, Boston: Houghton Mifnin Co., 1976.

Talbutt, L.C. Law and Virginia Pu/rlic Sclroo/ C1J11nsclors, unpublished dissertation, Virginia Tl-ch, 1979.

Tulbcrt, E.C. Cmmsc/ing For Carur Dc11cfo1'111t11I, Boston : Houghton Mifnin Co., 1974.

Legal References

Weldon 11 Virginia Stair Board of Psyc/10/vgisl Exa111i11crs, Corporation Court, Newport News, Virginia, October 4, 1972.

De1111 L. H111111ncl is Professor Emeritus of Cormsdor Education al V1rg111ia Polytcch11ic l11stit11/c and Slate Ur1111£'rsily in Blacksburg. V1rg111ia.