Lecture 10: Legal issues across counselling settings

Law for Counsellors

Kevin Standish

Learning Outcomes

• To explore and articulate the various legal factors across a range of settings:

• Private Practice

• Voluntary work

• Social Care Agencies

• Education

• NHS

• Pastoral Settings

Context: Ethics and Law

Awareness of Context

• Each context has its own specific perspectives of therapy practice.

• Policies, practice regulations, ethical principles and guidance all operate in a general legal framework : civil and criminal law applies equally to all practitioners and all aspects of our work

• It is important to understand how the law works in the context of therapy practice.

• This requires a different understanding and awareness of how the context of therapy impacts on how the civil and criminal law will apply.

• There are common themes which apply across the context of therapeutic workwhich you need to take into account with in specific contexts as well.

• Each work situation is different, each client is unique, and there will always be new, unusual and unexpected situations to challenge the application of ethics and law

Private Practice

• Private practice is first and foremost regarded as a business in terms of the law. It is not a vocation to help others… this point of view will lead you into legal trouble as well as leaving you bankrupt!

• You need to comply with all legal features of setting up a business, insurance, tax et cetera

• Advertising your practice is regulated both in terms of the law and that the BACP guidelines.

• Therapist running their own practice must ensure that their practice is non-discriminatory.

Private practice

Private practice: contracts

• You will enter into many types of contracts as part of running the business of counselling.

• Your therapeutic and business contract needs to be clearly defined

• This is important in terms of fees for therapy and issues of non-payment. No care agreement on fees may mean you have no legally enforceable contract to claim non-payment.

• Please ensure contracts are in writing or you will have difficulty enforcing these in the courts

• Currency of information and continuing professional development: you need to keep up-to-date with ethics Law policy and education relevant to therapeutic practice

Private practice: practice issues

2. Assessment of what to charge for therapy services

Private practice: practice issues

• Missed appointments: many therapist struggled to find the right

approach to missed appointments particularly where the justification is

on good grounds: e.g. I was ill, stuck in traffic, the tube was on strike,

my child was ill, etc

• This is about self-respect and valuing ourselves and our time. A hide

and fast rule is simple to operate but may cause feelings of resentment

or unfairness

• A flexible rule can create issues regarding attendance and the payment

of counselling fee

• Issues such as the therapeutic relationship, patterns of behaviour,

frequency of missed sessions and their general attitude towards the

therapeutic process are all relevant in how you managed this important

issue

Voluntary work

• The definition of voluntary work is work for which no payment is made.

• Payment for reasonable expenses and subsistence’s only related to the voluntary work does not count in this definition. Reasonable expenses include food, drink, travel and accommodation expenses where appropriate

• Volunteers not seem to be employees because they do not receive payment for their work. This has important legal and tax implications

• Volunteers do not receive the same statutory rights in the workplace as somebody employed: e.g. unfair dismissal, leave entitlement, redundancy payment et cetera

• Volunteer agreements generally cover what their rights are within the organisation

• These normally include: what supervision and support they will get, what insurance cover is present, equal opportunities, and how disagreements will be resolved

• Working as a therapist you will need to ensure that therapy related matters covered in the volunteer contract

• the Melhuish V Redbridge citizens advice bureau (2005) case set the law and conditions regarding volunteers statutory implements and protections

Voluntary practice issues

• Clarity of role: often volunteers role poorly defined and the written contracts and boundaries within the organisation.

• Issues of supervision: some organisations will supply internal supervision on a one-to-one or through an internal peer supervision group facilitated by a supervisor. This is referred to as internal supervision.

• Due to the economic climate the provision of internal supervision has diminished and many agencies rely on volunteers to pay for their own supervision. Please clarify with your placement what the position is

Social Care Agencies

• Social care agencies include all of those providing community care for adult clients who are vulnerable, or with special needs, mental illness or disability.

• The Health and Social Care Act (2001 and 2008) addresses the key issues in regard to social care.

• This established the Commission for Healthcare audit and inspection (CHAI)

• Some of the key elements in regard to this area of work relates to: care and welfare of people; monitoring the quality of service provision; safeguarding those who use the service from abuse; capacity to consent to care and treatment; maintenance of accurate records; and the role of support workers.

Social care agencies

Practice issues

• Disclosure of abuse

• Whistleblowing on bad practice

• Managing information between social care and other contexts in particular confidentiality

• Information about third parties: therapist may receive information from a client about a third party e.g. disclosing information about another resident receiving abuse

Education

• Education refers to nursery schools, schools (primary and senior) further education and higher education environments

• Teachers role as being “in loco parentis” to children in school: teachers are expected to take the same care of their pupils as a reasonable parent

• This is being replaced by the concept of a duty of care

• Overall if you’re working with in a school context you’re seen as an employee of the school and all legal elements applicable to the school apply to the therapist

EducationPractice issues

• Consent: consent for a child to receive counselling is required either from the child

if they have legal capacity (Gillick competence); or from those who have parental

responsibility for the child. This needs to be in writing!

• What if they refuse to allow counselling in school: this is where the Gillick

competence tests and the notes regarding this assessment should be clearly

recorded. Generally if parents refuse you cannot see the child for therapy.

• If the situation is urgent: if the child is in a serious or life threatening position

(suicidal) and parents are not able to consent urgent medical action can be taken

under section 3 of the children’s act 1989: empowers those responsible for the care

of the child to take the necessary action for the welfare of the child. It is not

intended to be used for non-urgent general situations

NHS

• Counselling within the NHS involves working with patients and staff in hospitals, clinics and doctor surgeries

• You’re working within multidisciplinary teams and a cross various practice settings. Counsellors frequently part of the medical social work team.

• Counselling with in the NHS will be addressing a direct problems e.g. mental health issues, anxiety, depression as well as those caused by the illness or accident: loss of limbs, disfigurement, impairment of functioning cognitively and physically. Some services will employ counsellor specifically to address the psychological elements of the chronic disabling effects of conditions: cancer, diabetes, multiple sclerosis, …

NHS

Contract issues:

• Therapist may find themselves in a dilemma in which they want to agree to terms in a therapeutic contract which may run counter to their terms of employment within the NHS.

• The court may enforce explicit contractual agreements of employment with the NHS against which you may agree with a client

• Therapist who disagree with any aspect of the policy need to consider their position carefully and address this with the organisation

• Therapeutic contracts need to mirror organisational contracts or this will lead to conflict of interest

NHS: Dilemmas of a Confidentiality

Pastoral Setting

• Therapist will encounter clients with a wide variety of faiths, spirituality, religious backgrounds and experiences.

• Pastoral counselling has a dual meaning:

• 1. counselling with in a faith context (e.g. with in the church) or

• 2. it may mean a specific discipline in itself as an approach to counselling: it assumes that the three people in the room, the consular, the client and God.

• You need to consider the issues that the context of counselling with in a religious/faith setting may bring

Legal and ethical features in the context of Pastoral setting:

• Confidentiality: confidentiality is protected by mixture of the more specific relevant to the faith (church law, sharia law et cetera) and the law of the State. In addition to the church law confidentiality is governed by the mixture of guidance, case law and statute.

• When counselling is provided in the context of spiritual and religious practice the are subject to the law of the State in matters such as professional liability, duty of care, contracts, health and safety, equality and diversity, etc.

• Tensions arise between religious law, therapeutic practice and the law of the State. This is in particular in relation to confession and their “seal of the confessional”

Seal of the confessional:

• In certain faiths confessions to an ordained minister and absolution

for their sins are held with in the faith to be totally confidential

• The Church of England guidance regarding the confidentiality of

confession makes no exemption for disclosure of abuse of children or

vulnerable adults even when the parishioner’s behaviour gravely

threatens his or her well-being or that of others. The ordained minister

should urge the person to report their behaviour to the appropriate

authorities/social services or police.

• This does not apply to non-ordained ministers working with in the

context of general pastoral care!

Other areas for consideration

• Please consider the legal aspects involved in these 2 chapters

Chapter 17 professional and ethical practice in the consulting room with lesbians and gay men by Lindsey Moon

chapter 19 professional and ethical practice in multicultural and multi-ethnic society by John and Nimisha Patel

ReadingsMitchels, B. & Bond, T (2011)

Chap 1: Private Practice

Chap 3 Voluntary Work

Chap 4 Working with Adults in the Context of Social Care Agencies

Chap 5 Education

Chap 6 The National Health Service (NHS) and Private Health Care

Chap 7 Counselling in Spiritual or Pastoral Settings

Advanced Reading

Tribe, R. & Morrissey, J (editors) (2005)

Chapter 14 working in a health care setting: professional and ethical challenges by Amanda Evans and the Robert Bor.

Chapter 17 professional and ethical practice in the consulting room with lesbians and gay men by Lindsey Moon

chapter 19 professional and ethical practice in multicultural and multiethnic society by John and Nimisha Patel

Jenkins (2002) Chapter 3 - Legal Pitfalls in Counselling and Psychotherapy Practice, and How to Avoid Them