Abstract
Couples and family counselors daily encounter ethical dilemmas. These dilemmas are complex and multifaceted. This article is written to discuss and provide information to couples and family counselors who seek to work ethically with clients who have been accused of abuse to minors. The authors of this article consulted an expert in ethics and standards of care related to the abuse of minors to identify ethical analysis of dilemmas through a fictional case study. The respondent to the case study provides recommendations to assist couples and family counselors as they follow the International Association of Marriage and Family Counselors Ethics Code as well as other professional ethics codes and standards of practice.
Keywords
The following case study and response are the first in a series of fictional case studies that will appear in the ethics section of The Family Journal. The situations presented in the case study, while fictional, represent issues that couples and family counselors frequently encounter. The respondent in this case is Ann Ordway, a PhD level counselor, who also has a Doctorate of Jurisprudence. 1
Fictional Case: James and the Megan Family
James, 28 years old, graduated 3 years ago with a master’s degree in Clinical Mental Health Counseling. He completed his state-required internship 2 months ago. Thus, with his internship complete, he is licensed in his state as a licensed professional counselor (LPC). He is employed part-time at the same counseling clinic where he completed his internship hours. He feels fortunate to work at the agency; however, his income is less than he wants.
Despite the lower income provided by his present employment, he enjoys his work. Particularly, he enjoys working with families, especially one family, the Megans. The Megans, Trey and Jennifer, have two children, Audrey and Naomi, aged 12 and 14, respectively. Trey and Jennifer originally requested assistance from James to improve their communication with each other and their children. Thus, James worked with the family to increase their communication skills. They, according to their self-reports and James’ observations, made meaningful changes and deepened their family communication.
Thus, for 10 months, the Megan family’s counseling was very productive. Suddenly however, 2 months ago, things changed abruptly when the family simply stopped attending counseling. The Megans, scheduled at the time for biweekly counseling sessions, simply disappeared. James was alarmed and called them numerous times. Despite his attempts to reach them, they did not return his phone calls. After several phone calls, James did not attempt to reach them again.
Two months after their abrupt counseling termination, James received a phone call from a caseworker at the local child protective services (CPS) agency. The caseworker, who asked to speak directly to James, inquired whether the Megans were currently seeing James for counseling. Curious and a bit stunned James, who was slightly intimidated to talk to the caseworker, replied “I really can’t tell you whether or not I see this family.” The caseworker continued to question James saying, Well, whether or not you tell me, I need to find out right now because we’re going to court next week, and I have to have a plan in place for them to get counseling. Audrey has accused her dad, Trey, of sexual abuse. The abuse has gone on for a while, and I think that the mother was aware of the abuse, but I can’t prove it. Trey, now living across town, can’t have any contact with the family. Now, really we already know that they’re attending counseling with you. We want you to help us and continue to work with the family since they know you and trust you. They have already said that they want to do individual and family counseling with you.
James agreed to continue to see the family and told the caseworker he would provide his file for court next week. James was relieved that he did not have to provide the file immediately because he knew that the file was incomplete and needed to “fix” some things in the file before anyone saw the file.
After the conversation with the caseworker, James left his office with mixed feelings. Namely, he was quite excited because he now has a more lucrative contract to see the Megans, thus enabling him to make more money by billing for individual services. He is also a bit intimidated by appearing in court, but he feels somewhat confident about his ability to advocate for this family because he really does not believe that there was any abuse at all.
Case Study Respondent: Ann M. Ordway, JD, PhD, NCC
James, the new counselor
The transition from classroom to practice is one of the most exciting times in the professional development of a new counselor. However, it is also a time that can be fraught with anxiety. Newly licensed counselors begin an initial journey in professional development, as they pursue full-time employment while developing their credentials and expertise. There is a new kind of pressure that originates from the effort to establish oneself in the profession and to become financially independent, which frequently includes responsibility for repayment of student loans. This pressure is distinct from the academic pressure of submitting papers and taking tests. A personal agenda, consciously and unconsciously, may compromise the primary objective of focusing on the best interests of the client.
James is a newly licensed counselor. Though he has completed the state requirements for licensure, he has only a part-time job and needs additional income. The details of his financial arrangement with the agency where he completed his postgraduate internship are unclear, and his personal objective is to begin full-time work. Other than a reference to his part-time employment being with the same counseling clinic where he completed his internship, the scope of practice at this clinic is also not identified. It is implied that James has both worked with families and with individuals in a more generalized practice.
There are a few additional facts regarding James that will be relevant to the discussion of the emerging ethical dilemmas in this case. First, there is no indication that James has any experience with or training for court-involved work. Competency will be a critical component of his ability to move forward with his designated clients in an appropriate way. Next, there is an indication that James will need to fix some things in his client file, thus raising a concern about the accuracy and thoroughness of James’ process notes and recordkeeping. The case description includes an implication that James is prepared to advocate for his client family based upon his predisposition that abuse did not occur. This is a judgment outside of the scope of James’ initial work with his clients—and likely one without the requisite training for assessment of risk in such a case. Finally, there are questions regarding the communication in this case between James and his clients related to informed consent, the potential changing of roles, and implications of confidentiality, particularly in the context of mandatory reporting and subpoenas. James would have been under supervision by an LPC during his internship with his supervision requirement ending right about the same time this particular family stopped attending counseling. Though supervision may not be required post-licensure, the challenges faced by James really underscore why ongoing supervision and consultation is highly beneficial especially for new counselors. These concepts will be explored in greater detail.
The Megan Family
According to the case study, the Megan family worked with James for about 10 months toward building improved communication skills. From all accounts, counseling was productive with no indication that any information revealed by the clients during sessions would have triggered James’ obligation as a mandatory reporter. In other words, while it is presumed that James would have had to report any suspicion of abuse or neglect to the appropriate authorities, there is no indication that any such information came up during the sessions. Thus, there is no reason to assume James knew something and failed to report it. It is noteworthy that though the family reported success and though it was James’ perception that there was success, the family stopped attending abruptly and did not respond to James’ effort to contact them.
Apparently, 2 months following the termination of counseling, the family became involved with CPS due to the accusation of sexual abuse from 12-year-old Audrey against her father, Trey. It seems that the Megan family have shared with the caseworker that they have been in counseling with James, though the implication is that they made it appear that the counseling was active rather than past tense. It is part of a caseworker’s job to contact any therapist of record, past or present, for a variety of reasons, including for fact-finding and validating or invalidating pending allegations. Allegations of child abuse and neglect are very serious. As a result, in many jurisdictions, child abuse agencies can pierce the confidentiality of counseling relationships to obtain necessary information for the protection of children.
Identifying the Dilemmas
What James Did Right
The reason for the termination of counseling between the Megan family and James is not clear. It is also not clear why James was “alarmed” when the family stopped attending sessions rather than simply “confused” or “concerned.” The use of the word alarmed is indicative of a higher level of concern. However, James seems to have made a diligent effort to reach his clients. Ideally, counseling relationships are terminated in an appropriate manner (International Association of Marriage and Family Counselors [IAMFC], A.12). In this case, the relationship was terminated when the clients ceased to attend. However, it is not James’ fault that the clients chose not to return his calls. In this regard, it would be important for him to document his efforts to reach the Megans, including the dates and times of his calls and the outcome, such as leaving a message. After a while, James accepted that the clients opted not to return, and he stopped pursuing them. Despite a sincere belief that certain clients are not ready to terminate, clients have autonomy in the counseling relationship. James made the right decision when he tried to reach the family, and he made the right decision when he chose to respect their apparent decision. James also should have sent a registered letter with return receipt to the family, so he could be sure that the family knew that he felt counseling should continue and to provide referrals if the family wanted or needed referrals.
When the caseworker first contacted James to inquire about the Megan family, James was correct not to immediately acknowledge the counseling relationship. He did not know who the caseworker was and was offered no proof of official involvement with the family. A counselor should not acknowledge to anyone about a professional relationship with a client unless and until the individual seeking information either provides documentation of their authority to obtain that information or there is a release from the client for the counselor to provide information. It is not clear whether James has a release of any sort for the Megan family, but presumably not. He has not spoken with them in 2 months and certainly does not have a release for communication with CPS. As noted above, CPS may have absolute authority to obtain information but, even so, should have to provide proof that they are who they say they are and that there is an open case with the family. It is not uncommon for court personnel to seem pushy in the quest for information, and it is wise to be cautious regarding the release of any information until it is clear that the request is legitimate and authorized (Barsky & Gould, 2002; Ordway & Casasnovas, 2019).
The Dilemmas
There are several presenting problems stemming from James’ professional relationship with the Megan family. Some problems are easily addressed or corrected, while others are far more intricate and likely to lead to additional professional complications. Identifying an ethical dilemma is the first step toward resolving the dilemma.
Values
James has a personal situation—namely, his need for full-time employment and additional income, which could potentially influence the way he views his work with clients. Counselors are not value-neutral, and though James might strive to rise above his personal needs, it is naive to think that personal circumstances never seep into a professional’s thoughts. In the case study, there is an acknowledgment that James is “excited” at the prospect of securing “a more lucrative contract to see the Megans.” His need for the money along with the desire for the professional opportunity seems to factor into his decision to continue working with his previous clients perhaps without an adequate contemplation of the nuances, parameters, and potential consequences of a new role with them. Counselors must be mindful of their personal values and the impact those values can have on professional interactions with clients.
Accurate Records
Next, the need for James to fix some things in the file before turning the file over to CPS is problematic, especially because the word fix can imply adding to, deleting from, or changing the original notes. James should have recorded information accurately the first time. It is sometimes confusing when deciding how much or how little information to record. From an evidential perspective, written documentation of an event that is recorded in close proximity to the event is likely more accurate when compared to a later recollection. James certainly should not alter the record nor should he alter facts or details in favor of a desire to advocate for the family or a particular member.
Exceptions to Confidentiality
The implication is that James was not aware of any allegations of sexual abuse during the time he saw the family. The caseworker indicated that “the abuse has gone on for quite a while.” Thus, there is a question of whether James did know and failed to report, should have known but did not pick up on indications that he should have pursued but did not because he lacked competency and proper training, or whether there were no indications of abuse during the time that James saw the family. James should carefully review his notes but not fix them. He should consider that he may have missed something. This point is about professional reflection and owning mistakes. It is also possible that either the abuse was not occurring while James was actively seeing the family or that the abuse did not occur at all. It is not James’ role to make that determination.
Subpoenas and Testimony
James will be required to produce his records, but he should consult with an attorney to determine the parameters of his responsibility. Will he have to produce records before the actual court appearance? Will he be expected to testify? James has had no contact with the Megans for more than 2 months. Should he reach out to Mrs. Megan to let her know about the request from CPS and seek a waiver from her and on behalf of the children? Should he also contact Mr. Megan for a waiver in order to inform him about involvement in the pending court matter? What are the implications of an updated discussion with the Megans and a duty to share with the court any new information he receives? To what degree does James need to advise the Megans of potential disclosure of any new information he receives from them?
Dual Roles
James has been a counselor to the family. CPS is requesting that he continue counseling the family, and the caseworker asked him to “help [them]” by doing so. The caseworker’s statement suggests an intention for James to take on a court-involved role with the family. James needs to be aware of any potential competing interests between his work as the family counselor, where there is a duty of confidentiality, and his work as a counselor appointed by the court, where there might be a requirement for periodic reporting back to CPS and the court.
Competency
James is a new counselor with no indication that he has any experience or special training in forensic or court-involved work. Counseling and forensic counseling are not synonymous terms. Courts often rely on the opinions and recommendations of professionals in forensic roles because of the expertise and evaluative skills of that individual. A forensic professional usually collects focused information for the court, writes reports, and expects to testify. In contrast, a counselor is not expected to write reports, refrains from giving an opinion beyond the prognosis of the specific client, and rarely testifies unless subpoenaed. It can be dangerous for a counselor to morph from one role into another (Ordway & Casasnovas, 2019). James is being asked to morph from the regular family counselor for the Megans, with a pointed objective focused on better communication to a forensic role, through which he would answer to CPS and the court. James has no training for this role. Moreover, James has opined that child abuse did not occur, and yet there is no indication that he has specialized training regarding child abuse and what to look for when the problem is not abundantly clear. Counselors working with children should have special training in how to communicate with children. Counselors working with abuse and neglect should be familiar with the warning signs and behavior-based indicators, especially since children and adolescents might not be forthright when parents are involved or present during counseling. Every expert witness has a first time, and James can certainly obtain the necessary training to be competent, but he may not be prepared at the present time.
Potential Conflict of Interest
James must consider his duty in the relationship with the family as a whole and to its individual members. Audrey, age 12, apparently made an allegation of sexual abuse against her father, Trey. James does not believe there has been any abuse. This contradiction means that Audrey’s interests and Trey’s interests as members of the same family are in conflict. Plainly stated, if Trey did abuse Audrey and James’ advocacy puts Trey back in the household, Audrey, and potentially her sister, could be at risk. Advocacy that is not supported by fact can be a dangerous proposition. While it is admirable to advocate for a client, James needs to be mindful of competing interests and of the potential consequences of crossing professional lines in the process.
Applying the IAMFC Code of Ethics
From the vantage point of specialization in work with couples and families, the IAMFC Code of Ethics (2018) is presented as a supplement to the American Counseling Association (ACA) Code of Ethics (2014). James’ ethical decision-making process for his continued involvement with the Megan family should be informed by the IAMFC Code of Ethics due to the nuances associated with his work as a family counselor.
Values
Section A: The Counseling Relationship and Client Welfare, Paragraph 7 makes clear that family counselors do not engage in exploitive behavior with clients for their own personal gain. Though it might not be intentional, a decision by James to take on a counseling role with the Megan family could be considered exploitative. James may have done good work with the family up to this point, but the family has not elected to continue his services. Instead, the Megan family is in a tragic situation, and any further counseling services are being mandated by CPS and potentially the court. While it makes logical sense for CPS to want the family to resume services with James, with whom they are familiar—James may not be the best choice. He is a new counselor. There is no indication that he has any specialized training for court-involved work. He worked with the family for a considerable period seeming to have no information regarding sexual abuse, which CPS claims was ongoing during the time while James was seeing the family. James has a predisposition that the abuse did not occur, even though he has not seen the family in 2 months and has not communicated with any member of the family regarding the allegations. James is looking for full-time work and increased income. He is excited at the prospect of working with the Megan family during this ordeal because it represents an opportunity for long-term, lucrative work. In this case, James’ motivation for working with the Megans may be driven more by his desire to make additional money rather than by considering the best interests of the clients.
Since James has acknowledged the existence of some personal issues that could interfere with his objectivity as a family counselor for the Megans, he should, at a minimum, seek supervision (IAMFC Code of Ethics, C.8). James has only recently ended the required supervision due to the completion of his internship—but he is at the same site and likely has access to the same supervisor who worked with him during the entire time that he previously worked with the Megans. Frankly, he should consult with his former supervisor not only because of the potential for self-interest but also because of the court involvement since the supervisor could have vicarious liability if a need for mandatory reporting was missed (Sheperis et al., 2016).
Accurate Records
Family counselors must maintain accurate records including a clear notation regarding who attended the appointment as well as the date and time of the appointment (IAMFC Code of Ethics, 2018, A.17; A.18). It may be okay for James to fix a note that is not as complete as it should be, but best practices for ethical behavior is for James to include all information at the time the note is originally made. At a minimum, there is an appearance of impropriety when a counselor modifies notes in response to a court-based request for records, and changes to notes could form the basis for an attorney questioning the counselor’s credibility.
Exceptions to Confidentiality
Informed consent must include a clear explanation of the parameters of confidentiality and specific exceptions to the counselor’s obligation to protect what client’s share in the context of the counseling process. Ideally, it is beneficial for the family counselor to obtain consent for the release of information and to withhold the information related to some family members when possible to release information only as to a particular individual (IAMFC Code of Ethics, B.1–13).
Subpoenas and Testimony
Notwithstanding traditional parameters of confidentiality, a subpoena is a long arm of the courts and a vehicle through which an attorney can obtain records and information for an active litigation (Ordway & Casasnovas, 2019). CPS in most jurisdictions has the power to obtain necessary records associated with pending investigations related to the protection of minors. It is important for counselors to be familiar with laws and regulations in their jurisdictions and to consult with an attorney about the validity of a request before releasing information pertaining to a client (Ordway & Casasnovas, 2019). Because many counselor education programs do not adequately address training counselors for court-involved work, counselors often either experience heightened anxiety at the prospect of participating as a witness in litigation or experience a heightened sense of confidence. In this case, James initially acknowledges feeling intimidated by the process, but he quickly shifts to confidence over the prospect of advocacy for the family. James has no idea what to expect in a courtroom.
There is a fine line between a fact witness and an expert witness (Barsky & Gould, 2002; Ordway & Casasnovas, 2019). Currently, CPS is seeking James’ records and a factual account of the previous counseling work with the Megans. There is no indication that James’ expert opinion is sought, nor is he asked for recommendations. If there is evidence of abuse which James should have recognized and reported, his testimony could invite liability for malpractice. Moreover, while family counselors should advocate for their clients, it is unclear as to what exactly James would be advocating. Is he advocating for CPS to close their file? It appears that James lacks information regarding the allegations of abuse and does not have any information either from the parent or from the children that would support such a conclusion at this time. James has not conducted any appropriate assessment that would allow him to make recommendations (IAMFC Code of Ethics, E).
Collaboration
It is not uncommon for professionals to collaborate regarding issues pertaining to a common client. Therefore, some level of collaboration between James and CPS would not be out of the ordinary. However, a family counselor is obligated to maintain the ethical boundaries established for family counseling (IAMFC Code of Ethics, D). CPS has a distinct purpose and a distinct agenda. In this case, the social worker has already expressed a belief that “the mother was aware of the abuse.” If James continues to serve as counselor for the Megan family, he will need to collaborate with a variety of professionals, including the CPS caseworker, likely individual counselors appointed for individual family members, and possibly evaluators who are appointed to assess risk. Before moving forward, James would need to inform members of the Megan family of the altered parameters of the counseling relationship—including the requirement to collaborate and to share information with other professionals involved (IAMFC Code of Ethics, D).
Competency
Court-involved work requires specialized training. It is noteworthy that clinical mental health counselors are generally not well-prepared during their graduate-level education (Francis et al., 2018). Beyond basic skills in family counseling, James should have additional, focused training regarding the dynamics of court-involved families, intrafamilial sexual abuse and related allegations, and at least the basics of interfacing with state agencies and the court system. This training should include some familiarity with local and state regulations and laws. While a counselor should never give legal advice, this familiarity allows the counselor properly to navigate the obstacle course that can be associated with forensic work (Ordway & Casasnovas, 2019). Family counselors do not treat families with issues beyond the counselor’s training (IAMFC Code of Ethics, C.5), and they certainly do not imply experience or expertise beyond what they have (C.3). Through James’ interaction with CPS, it is necessary for him to understand expectations for any involvement that he would continue to have with the Megan family. For example, James needs to evaluate his own competency and comfort level and be honest with the family, CPS, and the court about whether he can competently provide services. Due to the sensitive issues involved, James could put himself in a position of doing more harm than good if he provides services without fully knowing what he is doing and could find himself in violation of the ACA Code of Ethics (2014) as well.
Potential Conflict of Interest
A counselor must “inform clients if they have any potentially conflictual relationships with the identified client(s) and a third party or institution” (IAMFC Code of Ethics, A.5). In this case, James was approached by CPS, which questioned him about prior work with the Megan family and solicited him for ongoing counseling services. However, the CPS social worker stated, “We want you to help us.” Though there is an indication that the Megans may want to work with James, his role would not be the same. James would have to discuss with his clients the differences between his prior role as their family counselor and any new role as a counselor that they are mandated to work with by CPS and the court.
Additionally, CPS revealed that Trey Megan is living separate and apart from his wife and daughters due to allegations by Audrey that he sexually abused her. A family counselor focuses on the whole family while respecting the needs of individual members and the right of the family and its members to make its own decisions. James’ predisposition that the abuse did not happen potentially aligns him with the accused (IAMFC Code of Ethics, A). Moreover, a counselor should withdraw from a counseling relationship when there is a conflict of interest (IAMFC Code of Ethics, B.4). Sometimes even the appearance of a conflict causes members of a family to believe a counselor is biased and that belief should be enough for the counselor to consider withdrawing. Licensing board complaints and professional liability lawsuits can be initiated from a client’s concern about bias even when the professional has the best intentions (Ordway & Sheperis, in press).
Suggested Course of Action
As a counseling intern, James worked as a family counselor for the Megan family. The purpose of the counseling was to improve communication among family members, and the perception was that the process was successful. James was presumably under the supervision of an LPC while he worked toward his license. After about 10 months, the Megans stopped keeping appointments, with no further explanation or contact. James tried to reach them but to no avail; therefore, he was alarmed.
Two months after he last saw the Megans, James received a call from a caseworker from CPS, representing the agency’s involvement with the Megan family. James was correctly guarded about releasing information without some official confirmation of the caseworker’s right to access to any information. James should be aware of local and state regulations regarding the release of information to an agency like CPS and whether a subpoena is also needed. The caseworker provided James with details of the agency’s involvement with the Megans, including allegations of sexual abuse of one daughter by the father. The caseworker indicated that CPS would be requiring counseling and that the family wished to return to James.
On a simple level, the family could return to James to continue family counseling. However, the dynamic of the family has changed drastically. The father is living outside the family home. One of the daughters has accused him of sexual abuse. The goals of counseling are no longer limited to improving communication as the interests of the individual family members are in conflict. Additionally, while James initially had a duty of confidentiality to the family, continuation of counseling as a court mandate would likely carry an affirmative duty to report. If James continues to work with the Megan family, he must first review the changes in the nature of the process, both verbally and in writing, and the family has the right to consent or deny. The court and CPS may mandate their involvement in counseling, but it is their choice whether they continue with James.
It is concerning that the CPS caseworker has asked James to “help them,” suggesting a shift in purpose from the best interests of the family as a whole to a more investigative or evaluative role designed potentially to prove the caseworker’s belief that the mother was aware of the abuse all along and that the abuse has been going on for an extended period of time. This request not only creates a shift in James’ role and purpose but also a foundation for an appearance of impropriety. There is a potential conflict of interest—especially if the agency assumes responsibility for James’ fee. The family could perceive that James is not working for CPS rather than for the benefit of the family. This perception could lead to a board complaint or lawsuit against James. It is difficult and sometimes impossible to manage the parameters of two very distinct roles. By even trying, James is on a slippery slope. Moreover, James is approaching the case with his own agenda, not necessarily what is right for the family. James has not seen the family for 2 months and cannot presume to know anything about what has occurred during that time. While the lack of mention of abuse during the time he did work with the family may be relevant, there are also reasons why that information may not have come out. James is not an expert in working with children, in sexual abuse, or in forensic counseling and therefore may have missed subtle references. The fact that no one reported abuse to him does not mean the abuse did not occur any more than the isolated event of Audrey making the allegation now means it did happen. Forensic assessment is intricate, and James may simply not be qualified.
James’ financial concerns are a passing thought in his overall assessment of whether to continue involvement with this family. If his financial concerns are not a primary motivation for taking the case, the passing thought does not present a problem. James should not accept a role for which he is not qualified simply because he needs the money.
Finally, clarity is everything in James’ decision-making process. To remain ethical, James must understand what he is being asked to do. He must reflect on whether he is qualified to perform his duties in a manner that is focused on the best interests of the client family. He must be able to approach the case with an open mind rather than a predetermined set of values or a predisposition as to what the family needs or what the outcome should be. If James proceeds, he must inform the Megan family regarding his role in their case, and he must discuss the parameters of confidentiality and reporting responsibilities. Due to the past relationship, he should not serve as their counselor unless the family members all consent.
Footnotes
Authors’ Note
Ann Ordway is now affiliated with Behavioral Sciences, University of Phoenix, Phoenix, AZ, USA. The authors of this fictional case study and the respondent to the case study are not giving legal advice.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
