EthicPractice.pdf

Volume 35INumber 3IJuly 2OI3IPages 245-261

Ensuring Ethical Practice: Guidelines
for Mental Health Counselors in
Private Practice

Cécile Brennan

Since mental health counselors in private practice often work in relative isolation, it is espe-
cially important that they attend to ethical issues. This article reviews four dimensions of
ethical knowledge: the foundation of ethical actions, counselors as agents of ethical action,
the need to establish a decision-making process, and the importance of sustaining ethical
practice by keeping current with clinical developments and attending to their own well-being.

One of the benefits of being in private practice is freedom to conduct
an independent professional life. While insurance companies ean affect
what occurs in the consulting room, their influence is at a distance. Fears
of a malpractice charge or an ethics board eomplaint may sometimes rise
to consciousness, but they are easily put to rest by refleeting that relatively
few mental health counselors (MHGs) ever face such charges (Glosoff &
Freeman, 2007; Neukrug, Milliken, & Waiden, 2001; Saunders, Barros-
Bailey, Rudman, Dew, & Garcia, 2007). The freedom and flexibility to
determine independent practice conditions, such as seeing no elients before
10:00 a.m., or a practice foeusing solely on the elderly or the young, for
example, are what motivate many MHGs to join or start a private practice. As
with political freedom, however, this professional freedom comes with added
responsibilities.

MHGs in private practice need to attend to the ethical dimensions of
their practice with heightened diligence. There is offen no immediate over-
sight or system of checks and balances to support ethical practice. Indeed,
in private practice no one is looking over your shoulder. That is why private
praetitioners need to build their own ethieal support system. This article
describes the knowledge needed and the steps that must be taken to ensure
ethical practice.

Cécile Brennan is affiliated with John Carroll University Correspondence about this article should be
directed to her at John Carroll University. Department of Education & Allied Studies, I John Carroll
Boulevard, University Heights, OH 44tl8. Email: cecilebrennant^gmaiicom.

0 Journal of Mental Health Counseling 245

FOUNDATION OF ETHICAL PRACTICE

The standards of ethical practice are set forth in the codes of profes-
sional bodies and in the laws of eaeh state. For licensed counselors, codes
include the American Counseling Association Code of Ethics (ACA, 2005)
and the American Mental Health Counselors Association Code of Ethics
(AMHCA, 2010). Licensed psychologists follow the Ethical Principles of
Psychologists and Code of Conduct (American Psychological Association,
2010). Licensed social workers adhere to the National Association of Social
Workers (NASW) Code of Ethics (2008). In addition to the mandatory codes,
there are also aspirational codes developed for various specialties. For exam-
ple, the Assoeiation for Speeialists in Croup Work (Thomas & Pender, 2007)
has a detailed aspirational code. While these codes are essential, private
practitioners must also follow the ethieal requirements of the state where
they practice. If there is ever a conflict between the professional and the state
code, the more stringent one is to be followed.

It is not surprising, then, that the first step toward being an ethical
private practitioner is to become familiar with the codes and laws. Certain
concepts that lie at the heart of the counseling process are equally impor-
tant whether MHCs are in agency settings or in private practice. Terms like
confidentiality, duty to warn, multiple relationships, and privacy should be
familiar to all MHCs. Because these guiding principles are important in all
counseling settings, they need not be reviewed here.

Far too many MHCs feel that reviewing the ethical codes and laws is all
they need to do to conduct an ethical private practice. It is not. MHCs need
to understand the principles that informed the creation of the ethics codes
and recognize how principles and laws are translated into the kinds of actions
a private practitioner must take.

Ethical Pñnciples
The actions of MHCs working with clients should always be informed

by the core ethical principles of autonomy, beneficence, fidelity, justice, and
non-maleficence (Beauchamp & Childress, 2001; Kitchener & Anderson,
2010). Derived from the field of medical ethics, these principles underlie the
ethics codes and can guide MHCs when a situation arises for which a eode
does not provide a clear answer. The principle of autonomy emphasizes the
need for MHCs to ensure and respect client autonomy unless the client is at
risk of harming self or others. This core principle helps them to keep their
personal values and opinions in check as they help clients to achieve their
maximum potential. Client goals are to be respected, and the values a client
brings to the session need to be understood. Beneficence requires always work-
ing in the best interest of the client.

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Ensuring Ethical Practice

Fidelity emphasizes the need to honor commitments made to clients
when engaging in a professional relafionship. Cancelling appointments at the
last minute, showing up late for appointments, not being fully present during
a session, not responding to requests for records —all violate the principle of
fidelify. The ethical principle ofjustice requires treafing all clients equitably.
For example, clients should not be discriminated against because they are
on public assistance or, conversely, because they are excepfionally wealthy.
Jusfice also requires MHCs to account for each client’s unique cultural and
personal history. For instance, a long-standing appointment may have to be
rescheduled if it falls on a religious holiday. The principle of non-malefi-
cence is derived from the medical oath physicians take, the Hippocrafic oath.
Basically, its goal is that as pracfifioners we do no harm. Even if treatment
does not resolve a client’s problems, it should not make them worse.

Foundational Ethical Actions

Ethical principles and codes and state laws set out a number of essenfial
actions MHCs need to take when working with clients. The most central
and foundafional of these occur when the counseling relafionship begins;
some will be revisited throughout the counseling process. Other acfions with
ethical implicafions are professional protocols that dictate funcfional aspects
of clinical pracfice. In agencies, some of these acfions are the responsibilify
ofa paraprofessional office manager or whoever completes the inifial intake.
In private pracfice the responsibilify all falls to the MHC.

Professional disclosure statement and scope of practice. A counselor
needs to begin private pracfice by wrifing a Professional Disclosure Statement
(PDS), which is required by most state licensing boards. This statement
should be displayed in the office along with a copy of the license. It is also
recommended that the PDS be given to clients. PDS examples can offen be
found on the websites of state boards. Basically, the PDS should contain the
M H C s name, address, and professional license number; a summary of edu-
cation; whether the MHC is operafing under supervision or independently,
and if sfill under supervision, the name of the supervisor; the fee schedule;
a statement of the scope of pracfice; the name and address of the licensing
board; and where complaints can be filed (Ohio Counselor, Social Worker &
Marriage and Family Therapist Board [Ohio Board], 2012).

The item on the PDS that has the most ethical implicafions is the
scope of pracfice. It is important that what is stated there correlates with the
M H C s training (Wheeler & Bertram, 2008). MHCs need to recognize that
a weekend CEU workshop on PTSD or sexual addicfion does not qualify
them to work with clients who have those problems. A counselor who wishes
to establish a new area of pracfice must first complete addifional coursework
under the supervision of someone with the necessary experfise.

247

MHGs are sometimes tempted to accept new clients even though they
are not experts in the client’s areas of concern. That is not appropriate,
though if the MHG has had some training and is willing to seek supervision
while working with the client, it might be acceptable to see the client. This
is particularly true —even advisable —if the client cannot otherwise find
assistance. In this situation the MHG needs to inform the client that he
or she does not usually deal with the presenting issues and will be seeking
supervision. This should also be written out and placed in the client folder.

In creating a PDS and adhering to a stipulated scope of practice an
MHG is demonstrating professional responsibility. The PDS makes it clear
that all clients are being charged according to a set scale (justice), and are
being informed about the counselor’s education and credentials so that a
considered decision can be made about working with this particular coun-
selor (autonomy). Stipulating the scope of practice ensures that the private
practitioner is competent to treat the presenting concerns (beneficence,
non-maleficence).

Informed consent. Eliciting informed consent continuously is also very
important (Herlihy & Gorey, 2006; Sommers-Flanagan, R., & Sommers-
Flanagan, J., 2007). Informed consent is both a legal and an ethical principle
that requires counselors to explain fully to the client and, if a minor, to the
legal guardian benefits, risks, and alternatives to the proposed counseling
(Glosoff & Pate, 2002). The explanation should be geared to the individual’s
developmental level and intellectual ability. Often the process is managed by
having the client, and if necessary a guardian, sign an informed consent state-
ment. This is a good practice, but it is not sufficient. The informed consent
process needs to continue throughout the counseling relationship (Barnett (Si-
Johnson, 2010; Glosofi&- Pate, 2002). Gounselors need to be orally checking
in with the client regularly to update informed consent. These check-ins
should be documented in the client folder.

Many MHGs in private practice elect to use or adapt a standard
informed consent form; samples can be found online and in a number of
books for private practitioners (Hedberg, 2010; Wiger, 2010; Zuckerman,
2008). A standardized form offers assurance that the document contains all
the information considered necessary for informed consent In engaging in a
continuous process of informed consent, the counselor is ensuring adherence
to the ethical principle of autonomy.

Privacy statement/HIPAA. As everyone who has visited a medical facil-
ity knows, it is usual to be given a statement explaining its privacy practices.
Examples of these forms abound; they can be reviewed and adapted to private
practice (Hedberg, 2010; Wiger, 2010; Zuckerman, 2008). The forms, and
the policies and actions they describe, indicate that the MHG is aware of the
federal regulations governing storage and sharing of client information. In

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Ensuring Ethical Practice

thoroughly explaining the policy and having clients acknowledge in writing
that they have been issued a privacy statement, the counselor is demonstrat-
ing adherence to the ethical principles of beneficence, non-maleficence and
fidelity.

Billing and insurance companies. A private practice is a business. If the
practice is large, with several MHCs, an administrative assistant may manage
much of the business, but even so, the counselors are ethically, and some-
times legally, responsible. That means clients must be fully informed about
the practice’s billing policies. Will they be charged for missed appointments?
Is there a sliding scale that all clients can review? What is the procedure if
clients cannot afford to continue treatment? Is payment required at the time
ofthe appointment? Are any concessions made for a client who is temporarily
unable to afford the co-pay? Prospective clients should be given a form that
details the business aspects ofthe counseling relationship (Hedberg, 2010;
Wiger, 2010; Zuckerman, 2008), spelling out in clear language the financial
policies ofthe practice.

Billing can become very complicated when an insurance company is
involved. When an insurer accepts a counselor as a provider, the counselor
agrees to the company’s fee structure. This means the counselor cannot
charge the client any more than the company has stipulated. Even if the fee
is quite low, say less than $40 an hour, and even if the client volunteers to pay
more, it is unethical to accept. Most insurance companies also do not allow
private practitioners to charge for no-shows, no matter what the policy ofthe
practice may be. Operating ethically requires honoring the commitments
made to each insurance company.

When the reimbursement rate is very low, MHCs need to be alert for
any temptation to give a client less attention than if the client were paying the
counselor’s stated fee. Allowing the fee structure to influence the quality of
counseling, and therefore ofthe counseling relationship, undermines several
ofthe guiding ethical principles, particularly non-malfeasance, beneficence,
and justice. If low fees are going to result in less attention and a lessened
commitment to the client, MHCs in private practice should choose not to
participate in those insurance programs.

Submitting bills to insurance companies requires a formal diagnosis. A
particular insurance policy may award more sessions for certain diagnoses,
or not cover some diagnoses at all (National Conference of State Legislators,
2011). To maximize the number of sessions a client can receive, and not
incidentally increase the number of sessions that can be billed, an inaccurate
or inflated diagnosis is sometimes given (Danzinger & Welfel, 2001; Kress,
Hoffman, & Eriksen, 2010). While this may seem beneficial in that the client
can receive more sessions, it is not appropriate for several reasons:

249

1. A diagnosis of severe mental disorder goes on the client’s permanent
medical records. That may pose serious problems for clients later and
may inaccurately skew future psychological evaluations or be consid-
ered a pre-existing condition by an the insurer.

2. MHGs and insurance companies need to operate in an environment
of mutual trust. Lying about a diagnosis undermines that trust.

3. Finally, lying about a client, however well intentioned, is unprofes-
sional and unethical; it violates the principle of veracity or truthful-
ness and accuracy.

Recordkeeping. MHGs are trained to empathize with their clients, to
develop a therapeutic relationship, and to assist in their clients’ struggles
with emotions. Vhat often does not get much emphasis is the importance of
documentation. Maintaining good records is important for the client as well
as often a matter of contractual obligation to insurers. A consistent approach
to record-keeping and report-writing is necessary, and there are numerous
resources to support it (see, e.g., Hedberg, 2010; Luepker, 2012; Wiger, 2010;
Zuckerman, 2008). From an ethical perspective, what is important is that
the records summarize what has occurred and document any actions of the
counselor that may have ethical implications. For instance, if a MHG decides
to accept a gift or, say, attend a client’s graduation, the reason should be thor-
oughly documented. If a counselor needs to report actions of the client to
an outside agency or to another individual, for instance a legal guardian, the
reasons for this, too, need to be documented, in a HIPM-compliant manner.

Professional will. The AGA Code of Ethics {AGA, 2005; Kaplan, 2008)
and some state boards (e.g., Ohio Board, 2012) require counselors to have
a transfer plan, also referred to as a professional will, in case the counselor
becomes incapacitated or dies. This is particularly important for those in pri-
vate practice who are the sole custodians of client records. In a professional
will the counselor names a professional executor and sets out the process
to be followed in terms of how clients will be notified and client records
maintained. The executor will also meet with clients to offer assistance
with referrals. Gther instructions should cover office procedures, access to
files (keys, passwords, etc.) and software where client records may be stored,
liability insurance policy information, coding information, tax identification
numbers, passwords to voicemail, etc. An article by Bradley, Hendrieks, and
Kabell (2012) contains an excellent description ofthe professional will.

THE COUNSELOR AS THE AGENT OF ETHICAL BEHAVIOR

Once counselors have ensured adherence to ethical codes, laws govern-
ing counseling practice, guiding ethical principles, and actions that establish

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Ensuring Ethical Practice

an ethical climate for counseling, the next step is to examine their own fitness
to perform as an MHC (Burke, Harper, Rudnick, & Kruger, 2007; Tjeltveit
& Cottlieb, 2010). The goal of this self-examination is to identify areas of
ethical vulnerability. Doing so greatly reduces the chance that such areas of
vulnerability will disrupt the counseling process. This process, introspective
ethics, moves ethical preparedness from being just about rules, laws, and
guidelines to being about the person of the counselor (Brennan, 2009). An
MHC may commit an ethical violation by convincing him- or herself that
it is the right action to take or may be in denial about some aspect of his or
her own clinical functioning (Brennan, 2009; Burke et al., 2007; Tenbrunsel
& Messick, 2004; Tjeltveit & Cottlieb, 2010). The process of introspection
brings to the surface personal issues that could undermine ethical practice.

While this process is important for all MHCs, it is especially so for
those who do not have a support system immediately available. Working
interpersonally with people about pressing emotional issues, empathizing
while listening to a depressed client talk, and mediating between couples
and families in eonflict can all be very emotionally draining (Trippany, White
Kress, & Wilcoxon, 2004). This reaction may be exacerbated if a sole prac-
titioner is operating in an environment with considerable isolation, without
the camaraderie, coUeagueship, and support found in an agency. The sense
of isolation may foster an environment where the counselor’s own unfmished
emotional business ean surfaee unchecked.

The process of coming to an enhanced state of self-awareness to antic-
ipate areas of potential ethical lapse has three steps, which Brennan (2012)
calls the three windows of introspection. At each step the counselor must
think deeply about a particular area. Three possible windows are personal
history, emotional-temperamental, and conventional-functional.

Personal History Window

In reviewing one’s own personal history particular attention should be
paid to any circumstances that have especially powerful emotional content,
whether positive or negative. The important factor is the strength of the
emotional valence because that may result in countertransference (Celso &
Hayes, 2007; Haidt, 2001). For instance, a counselor who had a particularly
pleasant childhood in a small town with a large loving religious family may
incorrectly read her adolescent client’s circumstances, when they are similar,
according to her own experience. As a result of this unconscious bias, the
counselor may miss warning signs of abuse or neglect, or even deny evidence
of it that the client presents. Conversely, an MHC who was bullied by ath-
letes in high school may be unconsciously biased against a football-playing
client. In both cases the situation is primed for an ethical violation. In the
first case, not responding appropriately to circumstances of abuse or neglect

251

violates the ethical principles of non-maleficence and fidelity as well as per-
haps a reporting mandate. In the second case, the counselor’s unconscious
judgment is a violation of beneficence and fidelity.

These are just two of many possible examples. Only a systematic review
of their past can provide the knowledge and insight counselors need to
manage emotional carry-overs from the past. The review should begin by
applying an adjective or phrase to each developmental period: childhood,
adolescence, and adulthood. After this, each period should be examined
for emotionally laden circumstances. Finally, by reviewing both the labels
assigned and the specific situations that have emerged, it is possible to begin
to identify the kinds of clients and circumstances that might trigger emo-
tions that eould place a counselor at risk of committing an ethical violation.
Once these circumstances and clients have been identified, it is possible to
proactively adopt a mechanism to manage these situations appropriately. For
instance, if an MHC knows that his or her own abusive childhood makes
it difficult to keep appropriate boundaries when working with children and
families where there is abuse, the MHC will be prepared to seek extra super-
vision or consultation and engage in a strict ethical decision-making process
when evaluating possible actions. By examining tbe past, counselors are bet-
ter prepared to avoid bringing it into the present unconsciously.

Temperamental-EmoHonal Window
In addition to becoming aware of how the past may be influencing coun-

seling, it is equally important to consider how the counselor’s temperamental
disposition and present emotional state may do so (Celso & Hayes, 2007).
An extroverted, goal-oriented counselor may overly control the counseling
process. Unchecked, this could lead to a loss of client autonomy. A coun-
selor temperamentally predisposed to avoid conflict may hesitate to confront
a client’s pattern even when it is in the best interest of the client to do so.
This becomes a violation of the principles of beneficence and fidelity. In
some cases, a need to avoid conflict could even result in harm to the client,
or the client’s friends and family, if dangerous or threatening behavior is not
responded to appropriately.

To avoid ethical lapses, counselors need to be thoroughly aware of the
temperamental predisposition they bring into the counseling session. Equally
important is for them to be aware of what is presently affecting their emo-
tional state. A counselor going through an emotional divorce may be feeling
abandoned and emotionally vulnerable. This could translate into feeling
flattered by the attention of an attractive client, and perhaps even lead the
counselor to breach professional boundaries and participate in a personal
relationship with the client. Obviously, this would be a serious breach of
ethics. Another example is the MHC who is experiencing serious financial

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Ensuring Ethical Practice

difficulties and therefore cannot empathize with a client who has had to
downsize from a large estate to a more modest home.

These are just two of many possible scenarios. The counselor needs to
engage in a continuous personal inventory in order to bring to the surface
such areas of emotional vulnerability before they emerge in a counseling ses-
sion. Once aware of the possible vulnerabilities, MHCs should put in place
mechanisms to manage difficult situations. These might include counselors
themselves getting counseling, supervision, or consultation about cases that
are triggering an unmanageable emotional reaction, or (if possible) not
accepting new clients who are likely to trigger in the counselor feelings that
would inhibit the therapeutic process.

Conventional-Functional Window
Being a counselor in private practice, even as part of a larger prac-

tice, requires enhanced organizational skills (Crodzki, 2000; Stout, 2012).
Counselors in private practice are responsible for many actions that would
be performed by support staff in an agency. And even if a private practice
has support staff, someone has to manage the staff. For all these reasons it
is important for MHCs in private practice to assess their organizational and
functional abilities. MHCs who tend to arrive late for appointments, not
complete paperwork or complete it haphazardly, lose track of appointments,
and not keep client files current are having difficulty managing the day-to-day
operations ofa private practice. This failure can quickly become an ethical
issue. Counselors who do not keep client appointments have failed in their
responsibility to the client. Counselors who do not keep comprehensive cli-
ent records have failed the client, violated the ethical code, and often violated
agreements with insurance companies.

To prevent ethical breeches caused by inconsistent attention to the
mechanics of day-to-day operations, private practitioners need to assess their
ability to organize and manage themselves, and possibly an entire office.
Forgetting appointments and meetings and procrastinating about completing
paperwork often violates the ethical principles of beneficence and fidelity.
This type of inattention to detail could also result in a client being over-
billed. Any of these problems would be serious. Unfortunately, when some-
one is not organized, the problems are usually multiple.

Once problems with daily functioning have been identified, counselors
can put in place a structure to manage the practice more efficiently, perhaps
by scheduling a time at the beginning or end of every day to complete paper-
work; scheduling appointments electronically with an alarm to warn when
the next appointment is to begin; and not scheduling appointments at times
when the MHC is likely to arrive late. Such counselors might also benefit
from a course in personal or small business management.

253

ESTABLISHING A DECISION-MAKING PROCESS

MHCs in private practice need a clear procedure for what to do when-
ever an ethical issue emerges. To create such a procedure, counselors must
adopt an ethical decision-making model, establish an ethics support system,
and create a list of resources in case outside assistance is needed.

Adopting a Decision-Making Model
Decision-making models are step-by-step guides that lead the user

through the process of considering all facets of an ethical dilemma in order to
select a course of action. There are many such models for the mental health
profession (Cottone & Claus, 2000; Cottone & Tarvydas, 2006; Sommers-
Flanagan, R., & Sommers-Flanagan, J., 2007; Welfel, 2012;). Cottone and
Claus (2000) provided an excellent review of the literature of decision-mak-
ing models and described several. The model chosen for thorough review
here contains the essential steps common to all practice-based ethical deci-
sion-making models.

Created under the aegis ofthe ACA, this model is a streamlined version
(Forester-Miller & Davis, 1996). It has seven steps:

1. Identify the problem.

2. Consult the ACA Code of Ethics.

3. Determine the nature and dimensions ofthe dilemma.

4. Cenerate potential courses of action.

5. Consider the potential consequences of all options; choose a course
of action.

6. Evaluate the selected course of action.

7. Implement the course of action.

Forester-Miller and Davis (1996) thoroughly described actions that need to
be taken at each step. An MHC who follows this or another model will not
easily fall prey to sloppy thinking or an unconscious bias toward a particular
course of action. Use of the model should be explicitly documented in the
client record. When an MHC can demonstrate that a chosen course of action
is the result of a thorough process, even if the results of the action are not
positive for the client, counselor negligence can be ruled out.

Besides applying this model, MHCs need to be aware of any ethical
codes (e.g., AMHCA, 2010) or state laws that may apply to the specific situ-
ation. Links to state laws can generally be found on the website of the state
licensing body.

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Ensuring Ethical Practice

Establishing an Ethics Support System
Besides using an ethical decision-making model, it is very beneficial to

consult with knowledgeable colleagues who can act as ethics mentors. These
may be former supervisors, members of a peer consultation group, or notable
and respected MHGs. It is important to establish an ethical support system
before an issue emerges. Mentors should be attuned to the nuances of the
profession, as well as being knowledgeable about the relevant ethical code
and laws. Mentors aet as edueated, objective reviewers of the process used
to arrive at a decision. In talking with mentors, new concerns may surface;
the mentors become both a sounding board and a valued source of second
opinions about a decision.

Establish a List of Ethics Resources
MHGs in private practice would also benefit from creating a list of

resourees to eonsult when an ethical dilemma emerges. Having sueh a list
allows the counselor to reach out immediately for guidance. Sueh consul-
tation is more likely to produce a well-reasoned decision. Resources might
include the ethics helplines of professional organizations and some state
boards, information from an attorney in case of a legal charge or a subpoena,
and contact information for the malpractice insurer. Insurers provide pre-in-
eident risk management and ethics training as well as legal eonsultation
should an incident evolve.

SUSTAINING ETHICAL PRACTICE

Onee an ethical practice has been established, it must be sustained.
This requires that MHGs monitor changes to the laws and codes governing
the profession, ensure their own health and well-being, and stay abreast of
changes within the field. Each of these areas will be reviewed with …