Chapter 1
The Counseling Profession

The practice of counseling and the profession of counseling have evolved into maturity. In this chapter we provide an introduction to some of the legal responsibilities and accountabilities that have come with the maturing of the profession. Most notably we focus on the influence of state counselor licensing laws that have dramatically affected the activities of both licensed and unlicensed professional counselors.

Our Perspective

We understand that, for many practicing mental health professionals and most graduate students, the legal system is a foreign and sometimes frightening place. It is filled with adversarial relationships and governed by rules that are unfamiliar and unfriendly. We want to begin with a word of encouragement. No one knows how often counselors actually engage in unprofessional, unethical, or illegal practice-related behaviors. According to U.S. government data (U.S. Department of Labor, Bureau of Labor Statistics, 2014), nearly 1.5 million counselors (a number that includes licensed and unlicensed educational, vocational, school, rehabilitation, mental health, substance abuse, and marriage and family counselors) were working in America in 2012. Data compiled by the American Counseling Association (ACA; 2014b) indicate that there are 140,000 licensed counselors. The relative infrequency of licensing board discipline, lawsuits, criminal arrest, or censure by ethics committees compared with the number of counselors suggests that formal accusations of questionable behaviors are rare. In our experience, even when there is an accusation against a mental health professional, the resolution often favors the professional.

We would be remiss, however, in not stating the obvious: Counselors and other mental health professionals sometimes do engage in behaviors that result in harm to the very people we are in practice to serve: our clients.

Counselors who are mindful and respectful of ethics and the law can develop practices that are creative, thoughtful, passionate, and always in the best interests of the client.

Many of these harmful behaviors come down to the counselor’s failure to know, understand, or abide by the various state and federal laws that govern the practice of counseling. In this book, we are not recommending a rule-bound defensive practice wherein practitioners are fearful and innovation and creativity are stifled. On the contrary, the core message of this book is simple: We believe that counselors who are mindful and respectful of ethics and the law can develop practices that are creative, thoughtful, passionate, and always in the best interest of the client.

For nearly 30 years, we have worked with or followed legal cases in which the behavior of a counselor has resulted in harm to a client, and we have concluded that offending practitioners seem to fall into one of three broad categories:

• Intentional disregard: A small percentage of offending practitioners are intentionally opportunistic, abusive, exploitive, and self-serving in their dealings with their clients. These individuals are not interested in knowing, understanding, or abiding by the law. The best interest of the client is not their primary concern. Such harmful practitioners are not likely to read this book unless it is required in a graduate course or perhaps as part of a licensing board disciplinary process. We can only hope that all such practitioners either withdraw from the profession or have a life-altering transformational experience that induces them to abandon their abusive, self-serving values and behaviors.
• Careless disregard: There are offending practitioners who operate along a continuum ranging from innocently unaware to lazy or careless. In their hearts, these practitioners may want to do what is best for their clients. However, because they have not taken the time to study and understand the law and our evolving ethics, their interactions with their clients might easily cross legal and ethical boundaries that would have sounded an alarm to a more knowledgeable and mindful practitioner. For these practitioners, the harm done to a client is unintentional but real. Reading this book can be an important step toward becoming actively mindful (no longer innocently unaware, lazy, or careless) of the implications to clients of the laws and the ethics that govern our profession.
• Wrong place, wrong time: Some offending practitioners know and understand legal and ethical mandates and are actively committed to abiding by them, yet they still become involved in situations in which a client is harmed (or alleges harm). As mental health professionals, we sometimes tell our clients that bad things can happen to good people. The same is true for good counselors. Sometimes bad things happen to good counselors—harmful things that simply could not have been foreseen or prevented. It is our hope that this book can help fortify the vast majority of practicing counselors so that if, in the unlikely event you are in the wrong place at the wrong time, you will have a depth of knowledge and understanding about the law that will empower you to get help for your client and for yourself before things spin out of control.

It is our hope that this book will serve as a guide to practitioners who are committed to the development of counseling practices that are ethical, legal, and always in the best interest of the client.

The title of this book, The Counselor and the Law: A Guide to Legal and Ethical Practice, seems straightforward, but actually the definitions of counselor and law can be fraught with confusion. Before we move into the specifics, we define these essential terms so that we all know who and what we are talking about.

The Counselor

It seems obvious: Counselors provide counseling. And although that’s true, it’s not that simple. The label counselor in our culture is so generic that it almost defies an objective definition in terms of identifying a specific professional endeavor. There are insurance counselors, camp counselors, funeral counselors, and numerous other roles that are created simply by placing a descriptive noun in front of the word counselor. As used in this book, the term counselor denotes a practitioner, educated and trained at the graduate level, who is a member of the counseling profession.

History and Highlights of the Profession

What is the profession of counseling? Counseling as a profession, separate and distinct from its sibling and first-cousin professions, is relatively new. The genealogy of counseling is well documented. Gladding (2013), Kottler (2011), Neukrug (2012), and others have ably documented the story of how counseling as a profession has struggled during the past six decades to emerge separate and distinct from psychiatry, psychology, social work, philosophy, education, and career guidance. Today the counseling field has developed all the characteristics necessary to qualify as a full and mature profession. More than 60 years ago, the American Personnel and Guidance Association (the original name of ACA) was established. During the past 60+ years, ACA has provided the leadership and the energy to create the profession of counseling. It has made notable accomplishments in the following areas:

• ethics—creating the ACA Code of Ethics (most recently revised in 2014), a process for obtaining opinions on ethical issues and a process for filing a complaint against a professional member alleging ethical misconduct;
• interest divisions—creating and supporting specialized interest areas (divisions) within ACA in which professional members can affiliate, learn, and share ideas with others of similar professional interest;
• professional development—convening an annual national professional development conference as well as a host of other regional and state professional development meetings, conferences, publications, and activities;
• training standards—sponsoring efforts that resulted in the establishment of the Council for Accreditation of Counseling and Related Educational Programs (CACREP), the organization that defines the standards for training of graduate-level counselors and monitors the implementation of these standards;
• national certification—initially sponsoring and advocating the National Board of Certified Counselors (NBCC), the organization that has established a nationally recognized certification credential that attests to a baseline of general counselor knowledge as well as to specialty credentials in school counseling, mental health counseling, and addictions counseling; and
• state licensing—working together with other professional associations and groups to lead the state-by-state struggle to license professional counselors.

Professional Counselors

The efforts and activities outlined in the preceding section form the basis of what we now know as the professional counselor. State licensing is required for independent private practice. Professional counselor positions in agencies, schools, government, and nonprofit organizations may or may not require state licensure. Some professional counselors, such as school counselors or addictions counselors, may require specialty certification. Most of the information in this book is relevant to all professional counselors (licensed, certified, and unlicensed), including mental health, school, child, couple and family, substance abuse, and rehabilitation counselors;...