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ETH8385 - SECTION 7: DEFINING THE CLINICIAN/CLIENT RELATIONSHIP

Defining the Clinician/Client Relationship

The decision tree and the stages form the core of the decision making process. These two tools, however, are only successfully applied when there is a defined clinician/client relationship.

As mentioned previously, there are two other questions to be simultaneously answered about the nature and boundaries of the clinician/client relationship.

Defining the Clinician/Client Relationship

Who is or who are the client(s)?

When does the counseling take place, and when is the client considered a client?

We'll begin by looking at questions concerning who the client is. When there is a single, adult client, who has contracted with the clinician for counseling services, ethical decisions are at their easiest in this regard.

But who is the client if the clinician is seeing a family for family therapy? Or a couple for couples counseling? Who is the client if an employee is referred by a company for a counseling session with the Employee Assistance Program: is the employee the client, or the company that pays for the services, or is it both?

These issues are important because in looking to establish a method of determining the most ethical course of action, you need to see whose best interests are at stake, whose autonomy must be promoted, who must be protected from harm.

When there are multiple parties involved in the counseling process, there exists the possibility of a conflict of interests between two or more of the parties involved in the ethical situation. It might transpire that in choosing a course of action, you promote the welfare and interests of one party, but harm the interests and welfare of another.

What are the guidelines for determining who is or who are the client(s), and whose needs, rights and protection from harm are more important?

Some of the information for these guidelines comes from our decision tree, although in an inferred way, rather than in a straightforward way.

Some of the information is also related to the other question to be raised in this section - when is the counseling taking place?

To begin with, a client is someone whom the clinician has agreed to see, and who has agreed to see the clinician.

In the case of a minor child (or an adult who lacks the capacity to make his/her own informed decisions, and for whom a guardian has been assigned) the agreement to see the client is reached with the parent or guardian.

Promotion of the autonomy of the client and/or his/her guardian moves to center stage in this instance.

If the client (or his/her guardian) does not autonomously agree to the counseling relationship, with both its rights and its responsibilities, then the person does not become a client.

Ideally, the exact nature of what this agreement for counseling means should be spelled out for the potential client prior to entering into a counseling relationship. A formal statement of understanding is a good tool for fulfilling this aspect of the counseling relationship.

At the initial point of contact, the clinician may also elect not to enter into the counseling relationship. And the clinician may specify aspects of the counseling arrangement - like how high fees are set - that result in the client electing not to enter into the counseling relationship.

This is one of the instances in which the clinician's rights to autonomy may be legitimately asserted, since the counseling relationship has not been formally entered into, and the clinician does not yet have obligations to the client's well being that supersede the autonomy of the clinician.

Even here, however, the clinician's right to autonomy may not be asserted if in so doing it brings avoidable and significant harm to the person who has come seeking services.

For instance, when a prospective client calls a clinician to seek services, obligations exist towards the safety of the client even in the course of the first phone call. The clinician may not ethically decline to help the client find appropriate help - if the prospective client is suicidal or otherwise at risk for safety related concerns - simply because the prospective client has not agreed to the counseling relationship. The duty to do no harm supersedes any other considerations on the decision tree, even before the counseling relationship has been formally agreed to and fully defined.

This responsibility is one of the obligations that is demanded of the clinician in accordance with the right to practice the profession.

Likewise, since most clinicians - certainly licensed clinicians - will be designated as mandated reporters, they will also have obligations to report instances of suspected child or elder abuse if information is gathered during that initial phone call that denotes the presence of such abuse. While this is not the ideal start to a therapeutic relationship, the obligations to report supersede the other considerations, as life and safety may be at risk.

While laws on privileged communication may vary somewhat from state to state, and clinicians should be very clear on the law in their state, obligations to protect the privacy of the communication in this initial phone call will almost certainly exist before the informed consent agreement can be provided to and signed by the client. The act of seeking out a licensed clinician for mental health services is typically sufficient to create the right to privilege for communication, even if one or the other party decides not to pursue further the provision of the services to which the privilege relates. 

When more than one person is involved in the counseling relationship, each person receiving counseling services may be considered a client. In states where licensed mental health clinicians at various levels of licensure must protect privileged communication, privilege will typically be extended to anyone who has engaged with the clinician for the provision of mental health services: both partners in couples counseling, family members in family therapy, etc.

Please note that, again, these matters may be addressed differently in different states, and it is important for each clinician to have absolute clarity about the laws in their state. When clinicians provide an informed consent agreement to clients, it is vital to be clear about the circumstances under which the right to privileged communication is created, and when it is not. 

This means that the nature of the counseling relationship should ideally be negotiated and defined with each and every person who receives the counseling services. When two or more clients are equal co-clients, as in couples counseling, family therapy, or group therapy, then the responsibilities and rights for each must be equally clarified.

When persons attend counseling sessions as an adjunct to the client's counseling, as when family members attend a session to give background information or perform some other function in support of the client's counseling, there is still an ethical responsibility for the clinician to define the nature of the relationship for all the parties involved in the session.

The right to privileged communication is created by entering into a treatment relationship (or intending to enter into a treatment relationship). Therefore, if a third party is attending a session just to provide background information - without becoming a client receiving treatment - then that person would typically not create the circumstances under which the right to privilege is created. Those parties, under those circumstances, should be told about the absence of the right to privileged communication prior to their participation as adjunct parties. A separate statement of understand would ideally be made available to them that clarifies this reality. 

There are obligations to do no harm to adjunct parties to counseling, as well as obligations to promote the well being and autonomy of the adjunct parties. The presentation of this other statement of understanding would acknowledge and confirm these obligations. 

In practical terms, this means that a clinician must consider the harm that can be done to co-clients or participant parties adjunct to the counseling when utilizing strategies designed to promote the well-being of other clients.

Interventions that involve the confrontation of family members by the primary client in a counseling session, for instance, present serious ethical problems if the rights and autonomy of the parties being confronted are not considered.

This is because whether a participant in a counseling process is an identified, primary client, a secondary client, or an adjunct participant in the counseling process of another person, obligations exist to operate under the ethical values of the profession: do no harm, promote growth, protect life and safety.

This means that the fundamentals of the ethical process for each person remain the same: defining the nature of the relationship, evaluating the ethical process via the decision tree, balancing the competing interests, involving the client in the decision process.

This can present particular difficulties when the primary client is a child, or an adult who has been declared incompetent. In such cases, the parent or guardian has a right to autonomy in making treatment decisions on behalf of and for the benefit of the client. In such cases, the parent or guardian is the client when it comes to the autonomy aspects of the decision tree.

This is because the primary client under such circumstances is not viewed as being capable of handling the responsibilities of autonomy, so is therefore not completely accorded the rights of autonomous decision making.

But the rights of the minor child or incompetent adult to autonomy are not completely denied, nor the rights of the parent or guardian to autonomy completely protected.

The child or incompetent adult's rights to be protected from harm supersedes the guardian's right to autonomy - hence the existence of protective services in the states - and the child or incompetent adult's rights to have his or her welfare and autonomy promoted operates, in many instances, at least on an equal footing with the guardian's right to autonomy.

The presence of multiple clients, or even multiple participants, in the counseling process obviously requires that the clinician engage in a process of evaluating numerous competing interests in coming to a decision about ethical choices.

In the analysis of the scenarios, there will be a good deal of focus on the subtleties of this balancing process. More in-depth study of this issue will therefore be held for that time.

The next question has to do with when a client is a client. This question has, to some degree, been defined with regard to the beginning of the counseling relationship. There are, however, two other points at time for which some definition is required.

The first of these other points in time is while the counseling relationship is occurring - but outside the defined counseling hours during which the counseling is being performed by the clinician.

This is to ask if the client is still a client if the clinician meets him or her in public or in other personal settings? To what extent does the clinician have obligations to the client that supersede the counselor's right to privacy or autonomy outside the counseling office?

The answer to these questions is found to a great extent in the decision tree. Prior to being able to exercise his or her autonomy, the clinician must take into consideration whether his or her actions will have an impact on the client that is in any way harmful, will harm the autonomy of the client, or will be detrimental to the counseling profession as a whole.

Most clinicians are aware that this means protecting the confidentiality of the client when meeting him or her in public. However, it also means looking to protect the well being, including the emotional well being, of the client during chance encounters outside of the office.

While this is an imposition upon the free time and autonomy of the clinician, the client's rights to protection from harm, and promotion of well being and autonomy, outweigh the clinician's right to autonomy.

This does not mean that the clinician must stand in public and engage in an impromptu counseling session. The client's autonomy includes responsibilities to work within the confines of the defined counseling relationship. This means according to the hours in which the counseling sessions are scheduled.

The responsibilities of autonomy for the client support the rights of the clinician to take care of his or her personal life in a satisfactory manner - if the clinician has done a good job of clarifying these matters with the client.

The other time that is concerned with this issue is after the counseling sessions have been completed. At what point in time does a client stop being a client?

There are two key points in this issue: 1) When a client dies; 2) When a client terminates the relationship. Let's start with the issue related to the death of a client, either current or former.

There are legal and ethical obligations that exist towards protecting the privacy of the communications between the clinician and the client that will typically be outlined by the laws and statutes within each state addressing the right to privileged communication. If the right to privileged communication has been created by the creation of a treatment relationship, that right will typically survive the death of the client. 

If a client should die, and a family member should ask for the case notes, that is the time for the clinician to seek out guidance from an attorney to address the complications related to privileged communication in his/her state.

With regard to question number 2, some of the counseling professions clearly define time limits past which time the clinician is exempt from responsibility towards the client. Other counseling professions state that there is no time limit to the clinician/client relationship, and that responsibilities and obligations to the client exist towards infinity. Which is right?

It is important for the clinician to be aware of the code or codes of ethics that are applicable to him or her in this regard. The various codes of ethics represent the most up to date consensus that has been reached by the bodies involved in studying and evaluating ethical decisions for the specific groups of counselors covered under the code of ethics.

The fact that different groups can come to different conclusions is understandable, given the complexity and difficulty of the issues involved in resolving this question.

Following the code of ethics for your group keeps you compliant with accepted practice principles, and protects you from liabilities. While following the code of ethics defined by one's peer group, however, it is also important to understand the principles involved in making these decisions.

The decisions in this regard bring us back to the decision tree. Will disrupting the clinician/client relationship cause undue harm to the client? Will it unduly prevent the welfare and interests of the client from being promoted if all the protections of the clinician/client relationship are withdrawn?

These considerations are counterbalanced by issues related to the autonomy of the client. Does it hinder the autonomy of the client to assume that he or she can never be considered to be on equal footing with the clinician, capable of making autonomous decisions about being the counselor's friend, or even romantic partner?

What if the former client becomes so healthy that he or she might make a good mentor, or even a good clinician, for his or her former therapist? Is not the purpose of counseling to aim for such results?

These are questions for which there is yet no uniform answer to cover all clinicians in all situations. It raises the issue of different approaches to making ethical decisions.

The first approach, at one end of the spectrum, is to take the most defensible position in any ethical dilemma. This involves knowing, and following one's codes of ethics as closely and carefully as possible.

At the other end of the spectrum, one could attempt to follow the principles of ethical decision making, and the decision tree, as closely as possibly, looking to follow the ideal spirit of the ethical decision making process, even when the decisions that arise from this process conflict with the codes of ethics.

In reality, some real life ethical decisions may require that a clinician do a little of both. For this reason, it is important that each clinician both know and understand the codes of ethics relevant to his or her profession, and understand the ethical decision making process.

In the analysis of the scenarios, we will see examples of all of these following concepts in action. In the process, it is hoped that a deeper understanding will be reached that will inform good ethical decision making on the part of the clinician.

It also hoped that it will engage each clinician in the process of helping to continue to refine the shared understandings about what is involved in making ethical decisions. Prior to moving to our scenario analysis, however, we will first turn to an examination of some of the important leadership principles involved in ethical decision making and clinical practice.



Post-test Preparation: Review questions

At this point in the training, the trainee should be able to answer the following questions:

When do obligations begin that require the clinician to protect the safety of the client?

Who should be accorded informed consent when meeting with multiple clients and/or adjunct parties to a therapy session?

What general responsibilities for maintaining the integrity of the profession exist when clients are encountered outside of therapy sessions?

 

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