Does “counseling out” students from university programs violate their constitutional rights?
Please consider the following fictional scenario: Dr. Dolores Hickey teaches psychology at a public university in Amherst, Massachusetts. At a monthly faculty meeting with her colleagues, she �staffs� students, meaning that she identifies those who appear to be having major academic issues, personal problems interfering with their educational progress, or other difficulties. Dolores, a licensed clinical psychologist, has much experience in the diagnosis and treatment of mental disorders and brings this knowledge to her classroom interactions with students. Her classes tend to be �hands-on,� with students encouraged to achieve self-awareness by sharing personal issues with the class. She regards this classroom exercise as an important aspect of the use of reflective insight in psychology, a task encouraged by some professional educators. At the most recent student staffing, Dolores discusses Wanda Moreno, a second-year master�s student and the daughter of Puerto Rican immigrants to the U.S. Wanda, according to Dolores� description, is a �C� student and has looked �overwhelmed� in class for the last four weeks. She sits silently, never participating in class discussions, and, additionally, she looks �withdrawn and depressed.� Although her class papers have been submitted on time, they are sparsely written and lack self-disclosure, a specific requirement described in the course syllabus. Wanda has declined all of Dolores�s requests for a meeting to discuss these observations, and Dolores now seriously questions Wanda�s emotional maturity and appropriateness for psychology practice. She seeks her colleagues� advice on whether Wanda should be �counseled out,� a process by which university faculty and administrators deliver a strong, personal recommendation to a student to withdraw voluntarily from their degree program. This scenario represents a classic and unfortunate example of a threatened interference with fundamental constitutional rights by a state actor under color of law. The fundamental rights involved here concern Wanda�s personal privacy and self-expression, both liberty-related privileges recognized under the First and Fourteenth Amendments. Wanda�s personality, her manner of personal expression, and her attitude toward Dolores are her own business until such time as the state actors�university faculty members and administrators�can present a compelling reason for interfering with them. A compelling reason here would need to be grounded in the university�s important public responsibilities, which include the training of competent psychologists and the maintenance of an orderly and safe classroom environment in which to perform that task. In the absence of any showing that Wanda�s behavior either violates the university�s academic standards or interferes with classroom decorum or the rights of other students and faculty members, no compelling reason exists to address Wanda�s behavior. Even assuming that Wanda�s behavior suggests clinical issues�a conclusion that is as yet highly suspect�the evaluation that Dolores appears to be offering is not reasonably related to her role as a psychology educator. Rather, it threatens to use the power differential between professor and student to impose clinical assessment and �treatment� on an involuntary client. In this respect, the scenario raises clear informed consent issues. In constitutional terms, Wanda has a liberty-related right to remain free from arbitrary counseling. This case example can be understood alternatively as an equal protection dilemma. The school�s counseling out of Wanda�the state action performed by Dolores and her colleagues�can be regarded as a classification based on Wanda�s fundamental right to privacy and self-expression, as discussed earlier. The foregoing constitutional review of Wanda�s case is not intended to suggest that a student�s communication can never be interfered with or classified by a public university. The grading of examinations and papers is one such example of a classification. In contrast to the categorization attempted by Dolores in this case example, however, grading is reasonably related to the university�s essential purpose, and uses uniform standards that keep students more or less on an equal footing. Students� performance in field practicum and clinical training placements may also require faculty evaluations that grade students on the basis of their communications with clients and co-workers. Here again, however, such evaluations must be narrowly tailored to serve the limited purpose of evaluating student competence objectively in specific tasks. The use of due process and equal protection analysis was described earlier as a means of promoting diversity. The present case example offers a compelling demonstration of this point. In cross-cultural professional relationships, diverse communication styles may sometimes be inappropriately labeled as a failure�often by a minority student�to conform to expectations. By strongly discouraging this type of labeling, the duty to treat clients with due process and equal protection offers specific protections to all recipients of government services, including students. Moreover, recognizing the applicability of due process and equal protection can help to discourage the use of speech based classifications as a proxy for more odious categorizations, such as those based on race and ethnicity. The present case example also raises interesting procedural due process concerns. In the scenario, Wanda plainly has a property right associated with her education. It cannot be regarded as fundamental, because no constitutional protections�either federal or state�have yet recognized the right to an advanced professional education. Wanda�s property right is protected, however, by procedural due process. In her situation, the counseling out process may be used�either intentionally or not�as an informal, less confrontational form of gatekeeping, i.e., the process of determining the eligibility of entrants into the behavioral health professions. When it is practiced in the manner described in the present case example, it serves to eliminate the procedural rights that a public university student should have, including notice of the reasons justifying formal disciplinary action and an opportunity for a hearing. The faculty�s �request� to a student that she withdraw from classes under the circumstances presented is not much different from a police officer�s �request� to enter the home of a person having a loud party. Both requests take advantage of a position of authority, and both may be intended to accomplish a specific end without formal process. Wanda�s dilemma offers vital guidance to decision makers considering the impact of constitutional protections on practice problems. As the case example suggests, mastery of the principles underlying due process and equal protection offers decision makers practical assistance in the consideration of critical, cross-cultural practice dilemmas. Moreover, Wanda�s case demonstrates that a client�s right to life, liberty, and property has concrete implications in all elements of behavioral health practice.
What is “natural law” and how should it affect mental health decision making?
A key factor demonstrating the bond between law and ethics is natural law theory. An integral part of the precepts forming the foundation for the United States Constitution, this approach views natural law as consisting of the principle of practical rationality. Thus,
according to natural law theory, all persons tend to possess an “intrinsic directedness toward the various good that the natural law enjoins us to pursue,” and this includes at least in some but not all interpretations of natural law the recognition that it is a product of divine providence. Just as importantly, natural law assumes that its precepts are knowable to human beings. For those natural law theorists who look to practical, rational discourse and human behavioral tendencies to understand the development of moral precepts, there is a clear line of connection between natural law and the development of ethics and ethical codes.
More about ethical codes and their urban bias
A review of the major ethical codes in the mental health professions reveals that they do indeed tend to emphasize practice goals all too often from a national, urban perspective, with precious little attention paid to regional variations and cultural issues in practice. For example, the professional counselors’ code of ethics — the NBCC Code, Section A2 — cautions professional counselors that, when they accept employment with an agency or other employer, this acceptance implies agreement with institutional policies and procedures. To highlight the over-rigidity of this provision, note that in the case of a counselor’s employment with a national system of mental health providers, the provision appears to encourage allegiance to professional practices that might not represent the best interests of persons within a particular community. One could certainly argue that clients who live in a rural setting, speak a language other than English, or whose cultural affiliation demands flexibility in the delivery of treatment modalities, the NBCC Code would do well to encourage counselors to impart culturally competent strategies with clients. Unfortunately, the only reference to diversity within the NBCC Code, contained in Section A12, advises counselors rather imprecisely to have “awareness of the impact of stereotyping and unwarranted discrimination.”
Do ethical codes have an urban bias?
Consider the following vignette: A licensed, certified professional counselor, Robert Wu, observes an elderly client, Harry Driscoll, in a local coffee shop in Smith River, California, a small, rural town in which both the counselor and the client live and work. Harry invites Robert to have a cup of coffee with him at a local coffee shop, which serves as the �watering hole� for the town�s population. What should Robert do? Following the decision making framework presented on this website, Robert recognizes no law that specifically forbids this type of socializing. Persuaded that a review of applicable ethical standards would supplement his legal analysis, Robert uncovers NBCC Code Sections A8, A9, and B9, which warn licensees to avoid dual relationships that may harm or impair professional judgment. Whether there is actually such a risk in this scenario may depend in some measure on the cultural and regional traditions of the people in Smith River, where Robert and Harry both live and work. Therefore, in this scenario Robert would be wise to consider the application of these ethical standards in the cultural context of the community. If the type of social encounter Robert and Harry are sharing is the norm, as it might be in many small towns, than the risk of harm or exploitation would seem to be low or non-existent. In fact, refusing to engage in a reasonably innocuous social encounter would appear to do little to interfere with the clinical relationship Robert and Harry have experienced, and might actually do more to harm the positive results obtained during the pair�s counseling sessions. It is interesting to note that a version of this practice scenario seems frequently to appear in ethics treatises, often with an author�s suggested resolution supporting the notion that professionals and clients should strictly keep their social distance in the interest of avoiding the creation of a dual relationship and blurring the professional boundary. This conclusion seems to be based on an overly rigid, formal, and urban slant that some treatises appear to adopt. The discerning professional more appropriately should engage in the type of analysis applied in this vignette, which explores the possibility that professional choices must be based on, among other things, a consideration of regional and social context. In this scenario, the fact that Robert could find no direct law impacting his decision to have a brief social encounter with Harry probably provides an important clue that one ought not to assume that any such encounter necessarily violates the best interests of the client; the absence of law here signals the need for contextual analysis rather than a search for consistency among hazy ethical standards.
Using HIPAA in legal decision making
In 1996, Congress enacted the Health Insurance Portability and Accountability Act (HIPAA), whose provisions have taken legal effect during the years 2003 through 2006. HIPAA addresses both the protection of workers’ health insurance and—more germane to this article—the prevention of health care fraud and abuse and the assurance of client privacy in health care settings. Although a comprehensive discussion of HIPAA’s policies is beyond the scope of this article, it is fair to note that mental health professionals and their agency administrators cite compliance with HIPAA as a major concern of mental health providers involved in the treatment of clients and the maintenance of confidentiality in client records. For this reason, a general discussion of HIPAA’s main points is appropriate here. With this said, however, it is also important to note that compliance with HIPAA is actually most easily assured if the prudent professional understands the elements of confidentiality and the relevant steps necessary for the resolution of practice dilemmas involving confidentiality (see the post entitled Mental health research and legal decision making).
HIPAA’s main sections address two main areas of concern: Title I sets forth rules protecting the health insurance coverage of workers who transfer or are laid off from their jobs. Title II presents rules specifically related to the assurance of privacy and confidentiality in the handing and management of client health information, referred to in the law as Protected Health Information (PHI). Title II’s provisions occupy the discussion presented here.
HIPAA’s Title II is often referred to as the Administrative Simplification (AS) section. The AS provisions are presented in three discrete provisions of Title II. These are referred to variously as rules governing privacy, transactions, and security. Each of these is discussed individually.
HIPAA’s Privacy Rule is intended to establish policies for the management of client data that come into the hands of covered entities—these include health care providers, health insurance companies, and other organizations that transfer data through paper or electronic transactions. These covered entities must observe certain practices in their handling of electronic versions and hard copies of PHI, which includes all information related to a client’s health status, the nature of services provided, and payment details. Specifically, covered entities must disclose to clients all PHI generated by the entity within 30 days after the client’s request. Additionally, they must disclose PHI to other agencies—usually for the purpose of seeking payment for services or health consultation with other providers—only upon the prior authorization of clients. Further, covered entities must take all appropriate steps to protect the confidentiality of all verbal and written communications held with clients. Covered entities must also create specific agency privacy policies and procedures consistent with HIPAA. In these policies and procedures, covered entities are to identify the individual agency workers responsible for the handling of client information. They must also appoint a Privacy Official responsible for the maintenance of these policies and procedures and the receipt of privacy-related complaints. Finally, the Privacy Rule mandates that clients be notified whenever PHI is shared with outside agencies to collect insurance, seek health consultation with other providers, or for any other purpose; clients have the specific right to challenge the accuracy of information contained in PHI.
The Transaction Rule presents HIPAA’s plan for the management of communications between health care providers and third-party payors. It establishes certain identifying codes intended to facilitate and expedite the exchange of Electronic Data Information (EDI). These codes are intended to make uniform the computerized coding of EDI, such that providers and payors, to the foremost extent possible, speak the “same language” when sharing EDI.
HIPAA’s Security Rule targets health information contained in electronic form, known as Electronic Protected Health Information (EPHI). The rule sets forth protections that require covered entities to adopt uniform policies and procedures relating to the handling of EPHI, identify those specific employees within each agency who are to use and have access to EPHI, and hold training programs designed to educate agency personnel in the management of EPHI. The Security Rule also requires covered entities to establish clear safeguards regarding employee access to computer and other electronic data management systems, and even requires steps regulating the installation and removal of computer systems and software used in connection with EPHI. These include adopting practices ensuring that transmitted information is protected from viewing by unauthorized parties, and the use of procedures that permit each covered entity to accurately identify and authenticate outside agencies with which they communicate.
As a final note about HIPAA’s overall effect, it has been reported by mental health researchers performing studies with human subjects that their procedures have been much affected. Specifically, researchers indicate that there has already been a HIPAA-related, negative impact on their ability to perform data based research that reports client/patient progress over time in health and mental health studies. Among other issues, researchers observe that HIPAA’s Privacy Rule requires the modification and expansion of informed consent procedures to better document each researcher’s intent to comply with HIPAA in the assurance of participant privacy. The complaints of some researchers notwithstanding, given the risk presented by human subject research to the mental health of participants (refer to the post entitled Mental health research and legal decision making), one could argue that the added protections introduced by the Privacy Rule may yet have an overall welcome impact on the enhancement of researchers’ conduct in human subject research.
Sexual relationships with mental health clients
Some social alliances are so inherently destructive to the professional relationship that they are defined as malpractice, as in the case with sexual associations between psychotherapists and their clients. In some states, this kind of behavior is criminalized. Sexual relationships between other health and human service professionals, e.g., social workers, physicians, nurses, and attorneys, are somewhat more complicated to analyze because the purposes of these professional relationships are not as immediately and irreparably harmed by inappropriate sexual behavior as the psychotherapeutic bond is. Nevertheless, if one performs a thorough conflict of interest analysis, any sexual relationship with a client would appear to compromise the professional’s ability to deliver services objectively and be so inherently coercive as to substantially interfere with the client’s ability to consent voluntarily to the professional relationship. This is the position adopted by the NASW, APA, and NBCC Codes. Social workers, for example, are admonished in the NASW Code’s Ethical Standard 1.09a, “under no circumstances to engage in sexual activities or sexual contact with current clients, whether…consensual (or not).” Similarly, the APA Code (Ethical Standard 10.05) warns psychologists not to engage in “sexual intimacies” with current clients. Finally, counselors are advised flatly in the NBCC Code (Section A10) that “sexual intimacy” with clients, together with physical and romantic intimacy, is unethical. These clear standards may be the most binding and enforceable in all three ethical codes, a fact reflected in data suggesting that sexual misconduct accounts for the most instances nationally of disciplinary actions by licensing boards against behavioral health professionals. The treatment of sexual misconduct through license revocation proceedings alone has an important flaw: A mental health professional who has lost a license through sexual misconduct without further consequences can conceivably continue to practice as a therapist in some states simply by using a practice designation that is not regulated by law, i.e., by calling oneself a “psychotherapist” or “lay therapist.”
Providing services to clients with whom a past sexual liaison has taken place has the strong potential for undermining the professional relationship. The legal conflict of interest analysis suggested here should lead the decision maker to conclude that this kind of situation blurs professional boundaries, threatens exploitation of the client, and compromises the ability of the provider to offer reasonably competent behavioral health services. For this reason, ethical codes take a strong stand against the provision of clinical psychotherapy services to partners of a past sexual relationship (see, e.g., the NASW Code’s Ethical Standard 1.09d and the APA Code’s Ethical Standard 10.07), but only in the case of psychologists does the APA Code plainly require that the provision of psychotherapy services to such individuals is absolutely ruled out. No such prohibition is imposed against counselors in the NBCC Code, nor does it seem to apply to social workers not engaged in psychotherapy. Considering the fact that counselors and social workers frequently engage in such diverse fields as school based counseling, agency administration, program development, community organizing, and other human services not involving direct clinical interaction, this interesting omission leaves the behavioral health professional without specific ethical guidance covering this practice situation. Here again, the decision maker is urged in such contexts to complete the conflict of interest analysis outlined in this section.
Engaging in sexual liaisons with former clients also raises significant conflict of interest questions. In this circumstance, the professional relationship technically has terminated before the commencement of the sexual association. Here, however, there exists a profound risk to the former client that the lingering impact of the prior professional relationship may be used coercively as a means to manipulate the person into the sexual affiliation. This danger is especially acute when psychotherapy has been provided. In such cases, the intense professional relationship that existed during the formal treatment phase has a permanent effect on the continuing mental health of the client. Therefore, the progress the client has made may be jeopardized if the relationship with the past therapist becomes inappropriately personal. Viewed in this light, a psychotherapist should regard any professional relationship and the duties imposed by it as extending beyond the formal termination date of services.
The present conflict of interest discussion might reasonably lead a decision maker who has provided clinical services to a client to conclude that involvement in a sexual relationship with the former client violates the duty to practice reasonably competently because it can be expected to have an impact on the client’s continuing health. This is the position of many state legislatures, which have criminalized sexual relationships between psychotherapists and former clients where the professional services have only been terminated for a relatively short time (as an example, one year in New Mexico) (N.M. Stat. Ann. §30-9-10(A)(5), 2008)). Even when such conduct is not criminal, it still may be so inherently harmful to the former client as to constitute malpractice. This danger may or may not be present in the case of sexual relationships between other human service professionals, such as social workers and counselors providing solely informational (i.e., non-clinical) services, and their former clients.
Ethical codes in the mental health disciplines (see, e.g., the NASW Code’s Ethical Standard 1.09b, the NBCC Code’s Section A10, and the APA Code’s Ethical Standard 10.08) suggest that sexual relationships with former clients are to be avoided, and these codes place the burden on professionals seeking to engage in such relationships to demonstrate the absence of exploitation. In the case of counselors and psychologists, according to the NBCC and APA Codes, respectively, this burden includes the passage of at least two years since the termination of services.
One could certainly conclude reasonably that the ethical codes’ treatment of sexual relationships with former clients is too unrestricted. One could argue additionally that the legal standard in place—the duty to practice reasonably competently—probably would never condone the involvement of psychotherapists in sexual relationships with past clients, no matter what the therapist’s specific discipline is, or the length of passage of time between the professional relationship and sexual association; the danger of harm to the former client is too strong and obvious. With this point considered, is it ever possible for the professional to overcome the presumption that sexual relationships with former clients is inherently harmful? Consider the case of a social worker or counselor serving as a hospital patient advocate. The patient advocate’s services during the client’s one-day hospital visit consist of communicating the client’s grievance concerning the hospital’s food to the administrative staff. Ten years pass, and the advocate has been reintroduced to the former client at a social event; she and the client now choose to pursue an intimate sexual relationship. Whether the relationship should be avoided depends in large measure on the advocate’s assessment of the potential harm to the former client. Applying the test suggested above, the advocate might reasonably conclude that the prior professional relationship terminated at the time of the hospital discharge, and that the professional relationship that previously existed has no continuing impact on the client’s present well-being. Indeed, applying the reasonable competence and informed consent principles to this analysis, both would seem to be somewhat more forgiving of sexual relationships initiated some time after the termination of non-psychotherapeutic services.
More about the weaknesses of ethical codes in mental health decision making
One general weakness of ethical codes is that they often are better at articulating overarching and general, aspirational ideals, i.e., values, than they are at setting standards that prescribe or proscribe particular behavior, i.e., ethics. Thus, the NASW Code broadly espouses the promotion of client well-being (Ethical Standard 1.01), the development of people, communities, and environments (Ethical Standard 6.01), and the advancement of client self-determination (Ethical Standard 1.02), as social work aspirations, but offers only a handful of enforceable standards in the pursuit of these ideals. For example. as already noted, the NASW Code clearly proscribes conduct specifically in the case of social worker-client sexual relationships. Interestingly, in the very portion of the NASW Code in which ethical standards are set forth (Introduction to Ethical Standards), The Code warns readers that only �some of the standards that follow are enforceable guidelines for professional conduct, and some are aspirational.� The Introduction to Ethical Standards goes on to explain that �the extent to which each standard is enforceable is a matter of professional judgment to be exercised by those responsible for reviewing alleged violations of ethical standards.� This extraordinary lack of certainty by NASW itself as to the binding quality of its own �standards� raises serious questions about whether any relied upon in disciplinary proceedings against social workers would be enforceable in subsequent litigation by the subjects of such proceedings. The reason for the cautionary stance by NASW regarding enforceable standards may well be that the framers of the NASW Code have remained somewhat ambivalent about how they envision the Code�s purpose; when drafting the present Code they may have regarded the imposition of stricter standards as an undesirable substitute for allowing flexibility. In the NASW Code, Ethical Standards 1.06 and 3.01, respectively, social workers are cautioned to avoid social relationships and conflicts of interest with clients and colleagues, but only where there is a �risk of harm or exploitation.� The ambiguity inherent in this standard may serve the purpose of ensuring flexibility in its interpretation, but it also unfortunately makes it virtually meaningless in the absence of a situational, regional, cultural, or some other subjective context unique to every practice situation.
Mental health law vs. ethical analysis: which takes precedence in decision making?
When do ethical codes defer to metal health law? Put differently, when, if ever, do ethical codes advise us to follow the law?
Each of the codes of ethics in the mental health professions guides practitioners to follow mental health law when it is relevant to the resolution of a dilemma, although they sometimes do so in an oblique manner. For example, the NASW Code, in Ethical Standard 1.01 (“Commitment to Clients”), advises social workers that “specific legal obligations may on limited occasions supersede the loyalty owed clients.” The APA Code, Ethical Standard 1.02, rather fancifully and vaguely advises psychologists to resolve conflicts with the law by “mak(ing) known their commitment to the Ethics Code and tak(ing) steps to resolve the conflict.” In the same Ethical Standard, psychologists are advised rather inadequately that “if the conflict is irresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority” (emphasis added). The APA Code does, however, direct use of the law for guidance with respect to the issues of confidentiality (Ethical Standard 4.01). Professional counselors are urged by the NBCC Code, Section A13, to “avoid behavior that is clearly in violation of accepted moral and legal standards”; there is no additional concern expressed that there might not be any such thing as “accepted moral standards.” The indirect language used within these codes may be a reflection mainly of each profession’s explicit emphasis on defining a unique set of core values; carving out some professional “turf” for each discipline may well be an implicit objective as well. In any event, all professional licensing organizations, including those governing the major behavioral health disciplines, regard their members as owing an obligation to their communities that supersedes any profession-specific consideration.
Defining “law” in mental health decision making
As noted in other blog posts, seeking out the “right” legal answer to a clinical practice dilemma eliminates some of the confusing alternatives one may face in attempting to resolve a frustrating professional problem. This is not an accident. Much law, including law governing practice in the mental health professions, such as the requirement to maintain client confidentiality, is based on at least some sound, rational basis, and presumptively reflects the most basic, shared values of society. For this reason, the operating definition of law applied here is that it is a binding set of shared values within a community; the community being a city, state, nation, or other politically organized jurisdiction that unites people by language, culture, religion, tribal affiliation, or custom.
Defining law as a “set of shared values” serves the purpose of emphasizing the communitarian function—and not simply the binding nature—of law and lawmaking. Communitarianism in the present context is intended to convey the idea that the most effective and socially just practices are the result of cooperative inquiry, a search for common values, and the recognition that all people within a community share some mutual responsibility for their collective good. Viewed in this light, no practice choice can be truly personal because each decision inevitably has consequences that affect others. Unlike the values represented by individual preferences and political ideologies, or articulated within particular codes of ethics, the values advanced by law are shared by most members of a community and not merely espoused by one individual or professional. Understood in this way, the law can be regarded as a means to attaining the greatest good for the most members of a community. Additionally, this utilitarian interpretation of law, when incorporated into an overall decision making scheme, requires that all practice decisions be made at least to some extent from a communitywide, regional, or even global perspective, and not simply from a personal or professional one.
What about law that does not reflect shared community values? A prime example of this problem may exist today in the Indian country of the United States, where tribes that have traditionally defined their communal values through an unwritten religious and social tradition are increasingly finding this customary law displaced by federal and state legislation (see, for example, the Indian Civil Rights Act of 1968 (ICRA)). The assimilationist aim of this lawmaking may be a symptom of the overall trend toward the increasing definition and codification of new laws by Congress and state legislatures. This tendency may well reflect a growing willingness by legislators to use lawmaking as a means of social control in a society that feels ever more out of control. Under the definition of law used here, a credible argument can be made that at least some of this law is invalid, unconstitutional, or both.
What, then, can be done about law that fails to reflect the shared values of a community? Mental health professionals keenly interested in the pursuit of social justice are well aware of the myriad examples of oppressive, racist, sexist, ageist, and homophobic law that has existed historically. Often these examples are cited in support of the premise that all law is invalid, to be mistrusted, and inherently antithetical to the values associated with social change. This almost nihilistic political ideology is not pragmatic because it tends to ignore the vast body of law that is both useful in ordinary life and professional practice and also representative of the shared values of a community.