Reducing the Risk 1

Manhal-Baugus, M. (1996). Reducing risk of malpractice in chemical dependency counseling. Journal of Addictions & Offender Counseling, 17, 35-42. REDUCING THE RISK OF MALPRACTICE IN CHEMICAL DEPENDENCY COUNSELING

An increasing amount of litigation is occurring within the mental health field, including the chemical dependency profession. A malpractice lawsuit can have devastating effects on the practice of an unsuspecting professional. Even suits with absolutely no merit that are filed can have a catastrophic impact on a therapist's professional reputation, personal life, and financial stability.

This article explores the issue of malpractice and the ethical codes that are relevant to chemical dependency counselors. In addition, we explain three ethical and legal areas that are important for chemical dependency counselors to fully understand and follow: (a) informed consent, (b) confidentiality, and (c) working within and improving one's level of competence and area of expertise.

These issues are the most common sources of problems for addiction specialists. Chemical dependency counselors can reduce the risk of malpractice by understanding and following the ethical codes and legal laws to the best of their ability.

MALPRACTICE

Malpractice is the "failure to render professional services to the degree of skill and learning commonly applied by the average prudent reputable member of the profession; as a result, there is injury, loss, or damage to the recipient of those services or to those entitled to rely on them" (Bednar, Bednar, Lambert, & Waite, 1991, p. 37). In short, malpractice is the negligent execution of professional duties.

In the mental health profession, malpractice consists of four elements that must be proved before liability can be found: (a) the therapist owed the client a duty, (b) that duty was breached, (c) the client suffered injury, and (d) the injury was caused by the therapist's breach. The duty is determined by the level of knowledge, skill, judgment, and expertise others in the same profession use (Bednar et al., 1991). If a counselor knows and adheres to the ethical guidelines and acts as a reasonable professional, she or he can reduce legal and ethical difficulties.

ETHICAL CODES

The National Association of Alcoholism and Drug Abuse Counselors (NAADAC) is the governing body that certifies individuals as addiction counselors, and many chemical dependency counseling professionals strive to achieve certification through this organization. NAADAC (1987) has published the Code of Ethics, a set of specific, ethical standards for substance abuse counselors, and it is a duty of all chemical dependency counseling specialists to know and practice this code of ethics to the best of their ability. Reducing the Risk 2

The Code of Ethics and Standards of Practice (American Counseling Association [ACA], 1995) and the Code of Ethics (NAADAC, 1987) contain similar fundamental principles, such as the following:

1. Information discussed by clients in counseling sessions remains confidential except when there is imminent danger to themselves or to others, especially children.

2. Clients are provided the opportunity of informed consent.

3. Helpers always work within the boundaries of their limitations. Every counselor and therapist has limitations and should not attempt to deal with clients or issues for which they are not qualified.

These principles address three ethical situations in which substance abuse and dependency specialists face many difficulties and dilemmas: informed consent, confidentiality, and working within one's competence. Three vignettes illustrate these dilemmas. After each vignette is a discussion of the relevant legal and ethical issues that are important to know to reduce the risk of malpractice.

VIGNETTE 1: INFORMED CONSENT A chemical dependency counselor who works in a for-profit hospital is conducting an intake on an intoxicated individual. The client is coherent and can answer questions, but he is still considered to be impaired. He signs the consent-to-treatment form without hesitation after the counselor quickly runs through the general rules and regulations. However, the next day he realizes that he is not allowed visitors for one week. He becomes upset and leaves the program because he feels he was tricked by some of the rules.

Informed consent refers to the right of individuals to be informed and to make autonomous decisions about any treatment they receive (Arthur & Swanson, 1993). It is a legal doctrine requiring mental health professionals to disclose adequately to clients the risks, the advantages, and the alternatives of treatment. This requires three components: (a) capacity, which refers to the client's ability to make rational decisions; (b) comprehension, which means that clients must be able to understand the informed consent; and (c) a voluntary commitment from the client (Ahia & Martin, 1993). Basically, informed consent is when a client understands and voluntarily agrees to the conditions of treatment.

Understanding the nature of the procedures, and all the other information the counselor discloses, is not a simple issue in treating chemically dependent individuals because of the effects of mood- altering chemicals. Many times, prospective chemical dependency clients have taken alcohol, other drugs, or both before giving their consent and therefore do not understand the information given to them.

Two exceptions to informed consent are client incompetence and emergencies. Sometimes clients are admitted to a program in an intoxicated state and cannot comprehend explanations and forms. Ethically, treatment cannot be denied because of their incapacity. As straightforward as Reducing the Risk 3 this proposition is, establishing criteria of incompetence and identifying the incompetent person is a challenging task. Courts do not even agree on what constitutes incompetency (Bednar et al., 1991).

Substance abusers are also often admitted into programs in a state of crisis or emergency. For example, they may be experiencing severe withdrawal symptoms or hallucinations. In these cases, the counselor may admit and administer treatment to the client without the client's consent because the consent can be considered implied. When the urgency of the situation has passed, informed consent should immediately be obtained to avoid legal difficulties. For example, a highly intoxicated client may wake up the next morning in treatment and be extremely angry that he was admitted into treatment during a blackout. It is necessary to obtain informed consent, document the events, and fill out the necessary forms.

Related to the concept of understanding is the concept of voluntary consent. This poses another unique difficulty for chemical dependency counselors, because many of the clients are referred to treatment by the courts or parole boards, or coerced into it by significant others. Also, once in treatment, coercion often exists in the agency or the facility. For example, an inpatient is told to attend group or face restriction of visitors and privileges. Another example is that a parolee may not miss a meeting or refuse to give a urine sample without the threat of parole violation.

It is important to provide as much choice to the clients as possible and allow them to gain more control over their treatment. The counselor may even recommend foregoing treatment until the client requests treatment for himself or herself not because he or she is forced by a judge, a significant other, or the children. However, a basic, underlying truth is that the counselor's supervisor and the administration of the facility need to fill the beds. The counselor should do everything possible and document efforts to make treatment as voluntary as possible.

The doctrine of informed consent is a product of social and legal dedication to the right of self- determination and autonomy. It is slowly infiltrating the mental health fields, and legal trends suggest that therapists will be directly subject to informed consent actions in the immediate future. State statutes that apply to informed consent have already emerged (Bednar et al., 1991). Knowing and practicing the informed consent guidelines not only protects clients but also alleviates ethical and legal problems.

VIGNETTE 2: CONFIDENTIALITY A counselor who works in a prison program learns in an individual session that one of the inmate-clients has recently received barbiturates from an outside source and has begun to use these drugs at night to get to sleep. The client has been cooperative and open during his treatment. He has progressed more than any other client in the program. He is to be released in one month. The client is just beginning to learn about and practice relapse prevention strategies. He desperately wants to stop a complete relapse; this is why he told his counselor about the drugs. The counselor knows that if this information were reported, the client would not be released because of prison infractions.

The counselor is wondering if this information is protected by the ethical codes of confidentiality. Because he works for the prison, he is obligated to inform the authorities of any Reducing the Risk 4 potentially dangerous situations. However, the client is also protected by the confidentiality ethical codes.

Confidentiality is another fundamental ethical area in which chemical dependency counselors experience ethical and legal difficulties. Confidentiality is a legal and ethical responsibility and a professional duty that demands that information obtained from a private interaction with a client not be shared (Arthur & Swanson, 1993). Professional ethical standards mandate this behavior except when there are special, compelling circumstances or there is a legal mandate (Arthur & Swanson, 1993). To protect the client, oneself, and the profession as a whole, the chemical dependency counselor needs to understand the ethical and legal guidelines and the exceptions to these. Counselors also need to know which disclosures require consent and which do not. A review of federal regulations, ethical guidelines, and legal and ethical exceptions of confidentiality for chemical dependency counselors has been presented in a previous issue (Manhal-Baugus, 1996).

Legal Regulations

The Federal statutes and the set of implementing regulations are known as the Confidentiality of Alcohol and Drug Abuse Patient Records (Confidentiality of Alcohol and Drug Abuse Records, 1987). These regulations govern any federally assisted individual or program that specializes, in whole or in part, in providing treatment, counseling, or assessment and referral services for people with substance abuse difficulties (Weber, 1992).

Because of the laws enacted by the federal government, more stringent rules regarding confidentiality apply to substance abuse treatment than to other treatment settings. The six situations in which confidentiality may be legally breached are (a) child abuse, (b) the duty-to- warn, (c) subpoenas (a summons to appear in court or release records to the court), (d) third party payers, (e) audit and research purposes, and (f) medical emergencies (Confidentiality of Alcohol and Drug Abuse Records, 1987). Departments of the criminal justice system that have referred or mandated clients into treatment (i.e., clients on parole, probation, or in state institutions) may also receive information, but a release of information must be signed.

A concrete example of these strict regulations is that substance abuse treatment agencies may not release the names of clients without expressed written consent. Because admission to a chemical dependency program constitutes a diagnosis, the admission to any treatment center may not be released without the written consent. Because Federal regulations prohibit responding to inquiries about a person's possible or actual client status, the only appropriate response to a blind inquiry is, "I am sorry, but confidentiality requirements and regulations prohibit me from answering your question," unless a release of information has been signed for that particular individual. Typically, written consent is obtained through the use of a release-of-information form, which is very specific and must follow the Federal guidelines (Confidentiality of Alcohol and Drug Abuse Records, 1987). Reducing the Risk 5

Ethical Guidelines

The Code of Ethics (ACA, 1995) incorporates confidentiality into the code. In sum, it states the following: (a) Counselors must keep the relationship and information resulting from the relationship confidential; (b) in group settings, provisions and norms must be made to guard confidentiality; (c) when there is clear and imminent danger to the client or others, the appropriate authorities must be contacted; and (d) revelation to others of counseling material must occur only upon the expressed consent of the client or when legal requirements demand that the confidential information be revealed.

The preamble of Principle 8 of the Code of Ethics (NAADAC, 1987) states, "The alcoholism and drug abuse counselor must embrace, as a primary obligation, the duty of protecting the privacy of clients and must not disclose confidential information acquired, in teaching, practice, or investigation" (p. 2). This means that the alcoholism and drug abuse counselor must make provisions for maintaining confidentiality and the ultimate disposition of confidential records, disguise the identity of the client if the case is used in teaching or publishing, and discuss the information obtained in clinical relationships only in appropriate settings and only for professional purposes that are clearly concerned with the case.

Principle 8c of the Code of Ethics (NAADAC, 1987) states that the alcohol and drug abuse counselor should reveal information received in confidence only when there is clear and imminent danger to the client or other persons, and then only to appropriate professional workers or public authorities. A breach of confidentiality, although not necessarily legally required, may be ethically justifiable. The two situations in which a breach of confidentiality may be ethically justified are (a) suicidal threats and (b) danger to others, including child abuse.

In these situations, any breach of confidentiality should respect the privacy of the client to the greatest degree possible. For instance, a substance abuse counselor might contact a professional with more expertise before calling the police. When other professionals are brought in, they should be given only the information necessary to prevent the danger.

VIGNETTE 3: COMPETENCE AND EXPERTISE A client has been in an inpatient program for 2 weeks, and she has 2 weeks remaining in treatment. She told her counselor that she is 2 months pregnant, and her husband is not the father of the baby. The client asked her counselor to help her with the decision whether to abort, to tell her husband the truth, or to tell her husband that he is the father of the unborn child. The counselor is a devout Christian and realizes that her beliefs may interfere with her counseling objectivity and asks her supervisor for assistance.

Principles 2 (Responsibility) and 3 (Competence) of the Code of Ethics (NAADAC, 1987) and Section C (Professional Responsibility) of the Code of Ethics (ACA, 1995) address competence. These ethical principles state that alcohol and drug abuse counselors should try to achieve the highest possible level of standards and must recognize that the profession is founded on national standards of competency, which promote the best interests of society, the client, the counselor, and the profession. Two major points of these principles that affect addiction specialists are: (a) The counselor must recognize boundaries and limitations of counselor's competencies and not Reducing the Risk 6 offer services or use techniques outside of these professional competencies, and (b) the counselor must recognize the need for continuing education as a component of professional competency.

One aspect of the professional obligation of restricting practice to one's area of expertise is the importance of making referrals to other agencies for services one cannot or chooses not to offer. For example, if a person comes into treatment in a toxic state and begins to experience severe withdrawal symptoms, it is imperative to obtain immediate medical attention or to refer the client to a detoxification unit.

Also, by the time drug addicts reach the point of treatment, nearly every area of their lives have been severely affected. Too often, the emphasis on addiction to alcohol or other drugs as the primary problem has created the impression that it is the only problem. Mere removal of the drug does not mean family problems and all the other problems are resolved. With sobriety, a host of new problems that were masked during active drug use often surface, such as child abuse, financial problems, and legal difficulties. It is important for the counselor to refer clients to appropriate agencies that specialize in the relevant areas.

Addiction counseling is a rapidly changing and highly complex profession. To ensure that their services meet the ethical responsibility of competence, counselors need continuing education and training. Counselors must take it upon themselves to keep up with new developments in the field by reading professional journals and new books regularly, by attending conventions and workshops, and by taking additional courses (Bissell & Royce, 1987).

CONCLUSION

To avoid lawsuits, the chemical dependency counseling specialist should be very rehearsed in the ethical standards and legal regulations of informed consent, confidentiality, and competence. However, the real reason the professional counselor needs to know the ethical and legal guidelines is to protect the client from any harm.

To reduce the risk of lawsuits, the guiding principle for addiction counselors is to be very familiar with the most current legal issues and information. Also, the professional should act in a reasonable manner. These are the best guidelines for clinical practice and legal defense. Chemical dependency counselors also need contact with supervisors and administrators who are familiar with the ethical and legal guidelines. Also, lawyers who represent the agency or are knowledgeable of these issues should be available for the staff.

REFERENCES

American Counseling Association. (1995). Code of ethics and standards of practice. Alexandria, VA: Author.

Ahia, C. E., & Martin, D. (1993). The danger-to-self-or-others exception to confidentiality (Vol. 8). In T. P. Remley, Jr. (Ed.), The ACA legal series. Alexandria, VA: American Counseling Association. Reducing the Risk 7

Arthur, G. L. Jr., & Swanson, C. D. (1993). Confidentiality and privileged communication (Vol. 6). In T. P. Remley, Jr. (Ed.), The ACA legal series. Alexandria, VA: American Counseling Association.

Bednar, R. L., Bednar, S.C., Lambert, M. J., & Waite, D. R. (1991). Psychotherapy with high risk clients. Belmont, CA: Brooks/Cole.

Bissell, L., & Royce, J. E. (1987). Ethics for addiction professionals. Center City, MN: Hazeldon.

Confidentiality of Alcohol and Drug Abuse Records, 52 Fed. Reg. 21796-21814. (1987). Washington, DC: United States Department of Health and Human Services, U.S. Government Printing Office.

Manhal-Baugus, M. (1996). Confidentiality: The legal and ethical issues for chemical dependency counselors. Journal of Addiction and Offender Counseling, 17, 3-11.

National Association of Alcoholism and Drug Abuse Counselors. (1987). Code of ethics. Arlington, VA: Author.

Weber, E. M. (1992). Alcohol- and drug-dependent pregnant women: Laws and public policies that promote and inhibit research and the delivery of services. In M. M. Kilbey & K. Asghar (Eds.), Methodological issues in epidemiological, prevention, and treatment research on drug- exposed women and their children (DHHS Publication No. ADM 92-1881, pp. 349--366). Rockville, MD: U.S. Department of Health and Human Services.

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By Monique Manhal-Baugus

Monique Manhal-Baugus is an assistant professor in the Department of Specialized Educational Development, Counselor Education Program at Illinois State University, Normal, Illinois. Correspondence regarding this article should be sent to Monique Manhal-Baugus, 1503 Searle Drive, Normal IL 61761.