Seventh Edition
American Counseling Association
6101 Stevenson Avenue, Suite 600 | Alexandria, VA 22304 | www.counseling.org
Copyright © 2015 by the American Counseling Association. All rights reserved. Printed in the United States of America. Except as permitted under the United States Copyright Act of 1976, no part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, without the written permission of the publisher.
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American Counseling Association
6101 Stevenson Avenue, Suite 600 | Alexandria, VA 22304
Associate Publisher Carolyn C. Baker
Digital and Print Development Editor Nancy Driver
Production Manager Bonny E. Gaston
Copy Editor Kimberly W. Kinne
Cover and text design by Bonny E. Gaston.
Library of Congress Cataloging-in-Publication Data
Wheeler, Anne Marie, 1954– author.
The counselor and the law : a guide to legal and ethical practice/Anne Marie “Nancy” Wheeler, JD and Burt Bertram, EdD.—Seventh edition.
pages cm
Includes bibliographical references and index.
ISBN 978-1-55620-350-3 (pbk.: alk. paper)
1. Counseling—Law and legislation—United States. 2. Counselors—Legal status, laws, etc.—United States. 3. Counselors—Malpractice—United States. I. Bertram, Burt, author. II. Title.
KF2910.P75W44 2015
344.7303'106—dc23
2014046508
To our readers—
Whether you are reading this book voluntarily (e.g., a practicing counselor thirsty for new knowledge) or involuntarily (e.g., a graduate student taking the required ethics and legal issues course), may you incorporate some new ideas into your professional practices that will benefit both you and the many clients you will serve.
As we send this 7th edition to press, the world of the professional counselor continues to evolve. However, the imperative to serve our clients' best interests never changes even though the complexities of modern life continue to create new legal and ethical dilemmas. Underscoring this point, the 2014 ACA Code of Ethics (American Counseling Association, 2014a) added an entire new section (Section H) specifically devoted to technology. The widespread use of technology by practicing counselors continues to create new opportunities and new challenges. In this edition of The Counselor and the Law, we have updated every chapter to reflect changes brought by the 2014 ACA Code of Ethics, recent court cases, and new legislation. We remain committed to identifying and thoughtfully addressing the timeless legal and ethical challenges associated with the practice of counseling, as well as peeking behind the curtain to anticipate future legal and ethical implications of such changes. To that end, we anticipate that by the time we are ready to begin work on the 8th edition, it is quite likely we will need to address new legal and ethical issues arising from the implementation of the Patient Protection and Affordable Care Act (2012) or other sweeping health care policies. Remaining current requires mindful awareness of the evolution of legal and ethical practices. We are honored to assist our readers in meeting this worthy professional standard.
This book has an interesting collaborative heritage. Originally written by attorneys Thomas Burgum and Scott Anderson and published in 1975, The Counselor and the Law reflected the counseling profession before state licensure—and before the proliferation of state and federal laws that have shaped the conduct of the practice of counseling. Since the first publication there have been six updates. In 1985, attorneys Bruce Hopkins and Barbara S. Anderson collaborated to update the original manuscript; then in 1990, Hopkins and Anderson released the 3rd edition; and in 1996, Barbara Anderson (without Hopkins) completed the 4th edition. In 2007 we were asked to take over the authorship and charged with the responsibility of completing a major update of the book.
The 5th and 6th editions—published in 2008 and 2012, respectively—marked the first time that the authorship reflected a collaborative perspective of an attorney and a practicing counselor. We believe that our perspectives provided a unique understanding of the law as it relates to the day-to-day practice of counseling. As you read this book, you are likely to hear two distinct voices and perspectives. Nancy Wheeler will offer the lawyer's perspective: She will tell you about the law and how it affects counseling practice. Burt Bertram's voice will reflect an insider's perspective: He will talk about the gray areas of practice that don't always fit neatly in a black-and-white world. Together we offer advice and suggestions designed to help practicing counselors and students understand and navigate the complexities of real-world practice.
In this, the 7th edition of The Counselor and the Law, we continue our commitment to connect the realities of the practice of counseling with state and federal laws and with the ACA Code of Ethics. It is our hope that this book will serve to provide real answers to practicing counselors who are challenged daily to act in the best interests of their clients and at the same time to be mindful of the legal and ethical duties and responsibilities that govern the profession of counseling. We also hope this book will be a window of understanding for students as they attempt to imagine and prepare for professional practice. Of course, we did not, nor could we, address every situation. Laws vary from state to state, and the specifics of any particular situation can influence how state or federal laws or the ACA Code of Ethics will apply. In addition, this book is not intended as a substitute for the considered opinion and advice of your personal lawyer concerning the particular circumstances of a case in the context of local laws and customs.
We are grateful to all the past authors for providing a solid foundation upon which we have built our collaborative effort. We thank our colleagues in the ACA Ethics and Professional Standards Department for their helpful collaboration. Finally, we want to express our heartfelt appreciation to Carolyn Baker, associate publisher.
—Anne Marie “Nancy” Wheeler and Burt Bertram
Anne Marie “Nancy” Wheeler, JD, is an attorney licensed in Maryland and the District of Columbia; she has extensive experience with counselors and the broader field of mental health. For over 25 years, she has managed the American Counseling Association Sponsored Insurance Program's Risk Management Helpline. On a daily basis, she helps practicing counselors think through and understand challenging legal and ethical issues. For more than 30 years, she has worked with psychiatrists, facilities, and physician associations. This background gives her a unique window of understanding about the multifaceted issues that often confront practicing counselors. She is also an affiliate faculty member of the Graduate Pastoral Counseling Program of Loyola University Maryland, which is accredited by the Council for Accreditation of Counseling and Related Educational Programs (CACREP). Since the early 1990s, she and coauthor Bertram have jointly developed and copresented more than 150 seminars and workshops nationwide on legal and ethical issues. They have also produced several tapes, CDs, and podcasts on risk management strategies and legal and ethical issues.
Burt Bertram, EdD, is a Florida licensed mental health counselor and licensed marriage and family therapist. He has been in private practice in the Orlando area for more than 35 years. He practices from an interpersonal perspective; his professional counseling is primarily focused on the resolution of sensitive and complex relationship issues in every aspect of life—personal, workplace, and community. In addition to his private practice, Dr. Bertram provides personal development, coaching, and counseling to practicing physicians associated with the Florida Hospital System in Orlando, Florida. He is also an adjunct faculty member in the CACREP-accredited Graduate Studies in Counseling Program at Rollins College in Winter Park, Florida, where he teaches ethics as well as practicum; internship; and family, couples, and group counseling. Since the early 1990s, he and coauthor Wheeler have together developed and copresented more than 150 seminars and workshops on legal and ethical issues across the country. They have also produced several tapes, CDs, and podcasts on risk management strategies and legal and ethical issues.