ISSUES IN COUNSELLING MANAGEMENT: ETHICAL AND LEGAL ISSUES

FACED BY COUNSELLORS IN MANAGING COUNSELLING PROFESSION

INTRODUCTION

This concept paper is carried out to explore the issues and practices in counselling among
the professional counsellors and trainee counsellors. Management, in the context of counselling
management, is about helping counsellors and practitioners to work more effectively by improving
their skills and case management, increasing the overall effectiveness and productivity when
delivering counselling services to clients. In managing counselling services, counsellors need a
supervisor to assist them towards professional development, increasing competencies, and
promoting accountability in counselling. Besides that, counsellors knowledge, understanding and
application of various foundational issues in human growth and development are central in
managing counselling relationship and issues. The main focus of this paper is identifying issues
arise in ethical and legal practice among counsellors.
In the helping profession, such as counselling, there are certain developmental
requirements that an effective counsellors must possess to perform his or her functions effectively
to manage some issues. The most effective counsellors are one who has achieved a balanced of
interpersonal and technical competence. Therefore, managing issues in the areas of human growth
and development, professional orientation and ethical practice, assessment and the helping
relationships are very paramount.
Professional counsellors in schools or non-school settings must become very
knowledgeable ethical and legal practice in Malaysia and other parts of the world. Counsellors are
expected to understand the roles of professional organisations and several specialities in
counselling practice. In term of ethical and legal practice, there is a lot of issues arise in our
country. The arising issue concerning counsellors is whether they understand, aware and their
attitudes towards ethical practice and legal confidentiality among practitioners.
Ethics refer to the philosophy of morals choices made by an individual within the context
of his or her interaction with others. Issues involving behaviour that is good or bad, or right or

wrong, play a part in how ethics are viewed (Remley & Herlihy, 2010). Counselling as a profession
has generally aligned itself with principle ethics, which is the model of ethics emphasised in
medicine and bioethics. Principle ethics focuses on the application of the rules and directives that
guide ones acts and choices in troublesome situations (Freeman, 2000).
Ethics provide the guidelines for counsellors to make a decision in particular situations.
Counsellors who carried out regular counselling often faced with ethical dilemmas (West, 2002).
In Malaysia, before Counsellors Act enforced 1998, numerous instances of misconduct were
committed under the code of ethics of the American School Counsellor Association (1988). The
code of ethics serves to protect the public from misconduct ethically while also protecting
professional counsellor (Gladding et al, 2003; Remley & Herlihy, 2007). Under some
circumstances, confidential information should be breach is an issue that most counsellors
encounter in their counselling practices.

1.2 Issues arise in Ethical and legal Practice

1.2.1 Ethical Dilemmas
To becoming an effective counsellor by help clients to face their personal and life problems,
counsellors face lots of difficulties and challenges. Counsellors embark in the process of learning
more about themselves and desire to overcome challenges to be a good counsellor, become a part
of counsellors obligation to make sure they work in ways that ethically protect the safety of both
clients and counsellors. Counsellors have major responsibilities to behave according to legal and
ethical guidelines. They must aware with their own understanding and self-awareness towards
ethical issues that arise in this profession. Counsellors attention to the ethics of good practice, as
well as to the understanding clients rights and worldviews helps them to ensure no harm will be
done.
According to Boy and Pine (1999) before a counselling services can be considered as a
professional, it has to meet the following criteria such as well-trained individuals who have specific
knowledge, expertise, ethical understanding and awareness and also competence in managing
counselling issues. Along the same argument, Goldring and Ogwa (2002), posits that counsellors

have to develop high awareness on factors that might challenge them to face ethical issues and this
can hinder the process of counselling service and to manage ethical dilemmas.
Nurul Hasyimah & Wan Marzuki Wan Jaafar (2013) pointed out that counsellors, consciously
or not, often commit ethical misconduct, considering are that they often exposed to ethical
dilemmas or challenges in their profession. This is supported by Francis and Dugger (2014), who
confirm that there is a conflict between personal and professional ethics when conducting
counselling. Kaplan (2014) also emphasized that ethical consideration should be made by a
counsellor before making any appropriate decision.
There are many areas being investigated in the counselling ethics: ethical dilemmas in
counselling and counselling research (West, 2002), ethical attitudes of therapists who provide
counselling and therapy online confidentiality (Finn & Barak, 2010, Rummell, & Joyce, 2010),
personal disclosures, understanding values and social justice in counselling, awareness in
professional ethics and the covenant, and current and emerging ethical issues in counselling.
Various issues that exist require counsellors to have competence in ethics. A counsellor must be
knowledgeable and have a clear understanding and awareness of the ethical counselling before
making decisions about client issues.

Stone (2005) pointed that potential ethical challenges faced by counsellors are mostly
related to privacy rights, status, trust and confidentiality, issues related to informed consent,
attitudes of counsellor and their self-awareness and understanding towards legal and ethical issues.
Besides that, ethical issues raised when they have their online interaction with clients. Counsellors
less aware about their online postings, blogs, or chats may be viewed by unauthorized party and
will stay online to breach all the information. Certainly, counsellors less thought full about what
they post online and careless in granting their personal information about client to someone. This
shows that counsellors attitudes toward ethical practice and being less aware and understand their
limit toward privacy and confidentiality issues in this profession.

A study completed by Sileo and Kolapa (1993) as cited in Mohamad Bokhari, Syed
Najmudin Syed Hassan and Rosli Saadan (2014) found that ethical dilemmas create perplexing
situations for most counsellors, this is likely to be more problematic for individuals who have

limited work experience, are unfamiliar with a professional ethical code and who have little or no
training in the ethical decision making process. On the same note, an analysis of the survey by
Hayman and Covert (1986), revealed that 50% of the counsellors facing ethical dilemmas at least
once per semester in the following five categories: confidentiality, dangerousness of self and other,
role conflict, counsellor competence, and conflicts with institutions (b) the dilemmas that were
reported as the most difficult to resolve were in relation to the issues of confidentiality and
competence.
Today school counsellors are faced with the urgent needs for counselling sessions covering
cases of stress, pregnancy, alcoholic, drugs, vandalism, school violence and child abuse. To
identify this concern, the counsellors should have clinical skills and awareness of legal and ethical
depth prior to taking any action (Herlihy, Gray, & McCollum, 2002). In fact school counsellors
face many challenges and problems in legal and ethical issues (Corey, Corey, & Callanan, 1998).

Principle of ethics provides a set of obligations and methods to solve ethical dilemmas and
establish a conceptual framework to guide ethical decision making. Code of ethics require
counsellors to be aware of how their own needs that interfere in their counselling services and
taught that counsellor have a personal responsibility to be aware of their own issues so they will
not shift the focus from promoting client growth to serving the counsellors own needs (Corey et.
al., 2003. P.36).

As counselling continuous to develop and mature as a profession, the ethical status of its practice
has received increasing attention by counselling professionals in Asian countries (Kwong & Kwan,
2003). In this issue of the Asian Journal of counselling, an overview of various ethical issues in
counselling Asians in Hong kong (Leong, Leong, & Chan, 2003), was presented specifically on
assess the awareness and knowledge of code of ethics among teacher-counsellor-in-training
(Leung et. al).

Furthermore, Chong and Ow (2003) reported that the need for the legal mandate of
professional codes of ethics to regulate counsellor behaviours and to restore public faith in the
counselling profession. Chong and Ow noted that counselling services viewed as acts of kindness
rather than rights or entitlement, and unethical counsellor practice may thereby be unreported or

under reported. They added that a formal licensure system would help consolidate the professional
identity of counsellors, and to increase awareness as well as integrate knowledge of their ethical
obligation into practice.

This shows that counsellors should understand and practice ethical confidentiality when
conducting counselling services. Therefore, lacking of understanding and awareness of the ethical
confidentiality, counsellors can manipulate clients weaknesses for their own benefits.
Furthermore, counsellors must acquire a high standard of competence in the knowledge,
experience and counselling skills to maintain ethical confidentiality based on the counselling
ethical code. Therefore, a study of existing codes of conducts is needed to evaluate counsellors
understanding, awareness and their attitudes towards ethical practice.

1.2.2 Confidentiality Issues

According to ACA code of ethics and practice (2012), confidentiality is a means of
providing the client with safety and privacy and thus protects client autonomy. Respecting clients
privacy and confidentiality are fundamental requirements for keeping trust and respecting client
autonomy. The professional management of confidentiality concerns the protection are personally
identifiable and sensitive information from unauthorised disclosure. For this reason any limitation
on the degree of confidentiality is likely to diminish the effectiveness of counselling. The essence
of confidentiality is the principle that clients have the right to determine who will have access to
information about them and their treatment in counselling.
Counsellors have major responsibility in protecting confidentiality (American
Psychological Association, 2002). A basic foundation of the counsellor-client relationship is
confidentiality. Confidentiality is an issue affecting the values and beliefs of all groups who deal
with a counsellor. Confidentiality in counselling depends on clients being able to trust their
counsellors. They trust their feelings of vulnerability to someone who is committed to using their
knowledge and skill to act in the best interest of their clients. Professions honour and protect their
trust by getting standards for counsellors and expecting them to act ethically. Good standards and
ethical practice provide the best possible conditions for clients to discuss freely whatever is causing
them concern and for the counsellor to work therapeutically.

Tim Bond & Barbara Mitchels (2014), pointed out that, when they ask counsellors about
their approach in confidentiality and record keeping in their practice, they received some issues
faced by counsellors in managing confidentiality issues. They added that, there are few issues raise
greater anxiety for counsellors and psychotherapist than the appropriate management of their
clients confidences, particularly where a clients trust is at risk. On the same note, in the study of
relationship between understanding, awareness and practices of confidentiality ethics among the
counsellors by Mohamad Bokhari, Syed Najmudin Syed Hassan and Rosli Saadan (2012),
confidentiality is an issue involving ethics and legal implication for the counsellors. A counsellor
can deem guilty legally with failure of practice if the counsellor failed to manage a client with
violence threat. It is also because client emphasizes a lot on confidentiality.
Furthermore, well-managed good practice concerning confidentiality and record keeping
can strengthen the therapeutic relationship as trust is deepened and clients feel increasingly secure
and respected. Badly managed confidentiality and record keeping can have the completely
opposite effect, destroying ways of working together and leaving the client feeling betrayed, hurt
and misunderstood and the counsellors reputation for integrity undermined.
Under what circumstances confidential information should be disseminated is an issue that
most counsellors encounter in their counselling services. Ethical and legal issues often surround
the release of confidential data. In a study conducted by Mohamad Bokhari, Syed Najmudin Syed
Hassan and Rosli Saadan (2014) which find that legal understanding and ethics understanding did
not show any significance on the practice of confidential ethics. According to Corey (2007), at
times there maybe conflicts between the law and ethical principle and in these cases the values of
the counsellor come into play. Conflict between ethics codes and the law arise, in areas of
confidentiality and clients rights of access to their own files.
One example of a potential conflict between legal and ethical standards involves
counselling minors. This is especially true as it pertains to counselling children or adolescents in
school setting. Counsellors are always committed to follow ethical standards in maintaining the
confidentiality of the session with a minor, yet at times parents will have a legal right to
information that is disclosed in these sessions. Counsellors will often struggle between doing what
they believe to be ethically appropriate for their client and their legal responsibilities to parents.

Another example of a potential conflict between legal and ethical standards pertains to
breaking confidentiality of a client who is HIV-positive by informing a third party of his or her
condition. In a study by Ayub (2010), which find that the importance of understanding and
maintaining the awareness of ethics confidentiality among counsellors is formidable, and
consequently it would create a bench marking to the effectiveness of the counselling services
provided to the clients. However, to maintain ethical confidentiality in counselling is difficult
because high commitment is needed (Dahir, Hardy, Ford, & Morrissey, 2005).
Moreover, ethics of confidentiality in Counselling Association of Malaysia (PERKAMA)
states that counsellors should maintain confidentiality of the information obtained from the clients
during the counselling session unless the information is harmful to clients and others. Without
maintenance on the ethics of confidentiality, the counsellor can simply use the weaknesses of the
client or take advantage of the interest itself. Thus, confidentiality is necessary to protect the
interest of the clients. Indeed, confidentiality is significant in creating the trust on the relationship
between a counsellor and a client (Mitchell, Disque, & Robertson, 2002).
Besides that, past studies in ethical issues in confidentiality practice identified that; there
are 41 cases of informed consent violation. Thirty cases of violations of informed consent by social
workers occur when counsellor fails to discuss the policies with client; nine cases involving failure
to discuss pertaining to fees, bills or other policies payment; eight cases involving the worker
proceeds with some action over the clients objections such as taping a session, divulging
information of a case although the client has not given permission to it.
Meanwhile, there are three cases of consent which are obtained through unfair means
(Gottfried, 2002). This case shows that, counsellors facing challenges and issues in practicing
confidentiality in this profession. On the same note, Norian (2004) pointed out that, confidentiality
concept is easy to understand but difficult to be implemented by counsellors and psychologists due
to complex factors. School counsellors face many legal issues and the failure to report the
suspected case of child abuse that lead to civil and criminal law suit (Corey, Corey, and Callahan,
1998). Mohd Noh (2001) finds that clients prefer to meet a close friend to discuss their problems.
On the same note, Synder, Hill and Derksen (1972) in Mohd Bokhari et.al., (2014), state that a
study among 181 university students shows that their peers are the first reference point for the

students personal and social problems, a close relative to be the second option and services offered
by the faculty as well as the counsellors to be their final choice.
According to Isaacs and stone (1999) in Mohamad Bokhari, Syed Najmudin Syed Hassan
and Rosli Saadan (2014), confidentiality is an issue to gain the clients trust. Generally students
would not seek counselling services if the confidential ethics are not upheld and practiced by
counsellors. Biggs and Blocher (1987), state that counsellors must be aware of the ethics while
conducting the counselling services.
1.2.3 Issues in obtaining informed consent
Obtaining confidentiality through informed consent plays a vital role in professional ethics
for counsellors. Confidentiality involves a commitment to retain information that is always
relative, rather than absolute. No ethical code, for example, requires a counsellor to withhold
information when such action would clearly endanger human life. We can look at three levels of
confidentiality within a counselling situation. The first level of obtaining confidentiality through
informed consent, concerns the professional handling of information.
Every counsellor has the obligation to treat all information arising from professional
contacts in a professional way. This includes information about clients, their friends and families,
and information about relevant organizations. Such information acquired in a professional
situation, no matter how harmless or trivial it may seem to the counsellor, should never be used in
a loose or irresponsible way. It should never be used in social conversations, to entertain or impress
others, or to build the ego of the counsellor. If the information is to be used in a serious professional
context for teaching or staff development purposes, great care should be exercised to protect the
identity of the people or organizations involved.
The international family journal article of Ethical And Legal Considerations When
Obtaining Informed Consent For Treating Minors Of High Conflict Divorced Or Separated
Parents written by David Shumaker and David Medoff, indicate the importance of obtaining
informed consent. Briefly, informed consent is use when a counsellor conduct research or provide
assessment, therapy, counselling, or consulting services in person or via electronic transmission or
other forms of communication, they obtain the informed consent of the individual or individuals
using language that is reasonably understandable to that person or person except when conducting

such activities without consent is mandated by law or governmental regulation or as otherwise

provided in this ethics code.
This article discusses the ethical and legal dilemmas facing by clinicians and counsellors
who work with minors of high-conflict divorced or separated parents. From an ethical perspective,
minors should be able to expect confidentiality however parents and guardians have certain legal
rights that limit the rights of minors. The author uses a Decision-Tree Model to illustrate the
potential complexity of obtaining informed consent for the treatment of minors who parents are
engaged in high conflict. It has been noted that when entering into a counselling relationship with
a minor, the circumstances involved need to be closely considered. Some general issues are to
whom clinicians and counsellors owe the ethical obligation of confidentiality, parental consent and
legal rights, informed consent, and competency level of the minor (Anderson,1996;
Salo&Shumate,1993).
Ethical and legal considerations when obtaining informed consent for the treatment session
of minors from parents in high conflict and who are divorced or separated become a crucial aspect.
When obtaining informed consent to therapy session, counsellors will inform clients as early as is
feasible in the therapeutic relationship about the nature and anticipated course of therapy,
involvement of third parties, limits of confidentiality and provide sufficient opportunity for the
client to ask questions and receive answers.
Nevertheless, process of obtaining informed consent from highly conflicted parents and
assent form their children become much more complex. Counsellors faced unique challenges when
treating minors from highly conflict divorced or separated families. In some cases, clinicians are
allowed to treat minors without informed consent or parental consent if an emergency situation
is suspected. Massachusetts Law does not require the joint informed consent of parents for minors
to receive therapy or counselling session (Hecker&Sori, 2010).
The researchers in this journal article state that, clinicians are strongly advised to know the
minimal legal standards of the state and know the confidentiality and privacy in which they
practice for obtaining informed consent for treatment of minors whose parent joint legal custody.
The result of this study, similar to those Beeman and Scott (1991), suggest that the minor had a
reasonable expectation that the clinician should protect their privacy, however, they also

recognized the value of protecting the public and as such, it would be appropriate to disclose the
confidential information but in a manner considered professional in nature. Protecting the minor
may be difficult at times because Beeman and Scott (1991), report that the responsibilities of the
psychologist can be ambiguous, and the ethical and legal concerns when counselling minors adds
to the informed consent and confidentiality. Their experiment results indicated that nearly 30% of
the clinicians failed to obtain a written consent from the minor. In addition, nearly 11 % of the
adolescent did not fully understand the consent form they signed or its implications.
Furthermore, their study found that a primary reason why therapist did not offer a consent
form to the minor was due to concerns that the minor might refuse therapy. There are a lot of
challenges faced by clinicians to obtain informed consent from minor. Taylor and Adleman (1998)
supported these complex issues and found that 11.3 % of the adolescents did not sufficiently
comprehend the information on the consent form and another 11.6 % refused to give permission
at the time of therapy. Suggesting the informed consent refusals was partly due to lack of
understanding with respect to the session expectations, nature of the therapy, and the overall limits
of confidentiality.
As in many states, children are not required to sign an informed consent form under the
age of twelve according to Brewer and Faitak (1989), and suggest that the clinician tends too lax
in protecting the confidentiality of the minor in therapy. Furthermore, since the parents or legal
guardian are frequently involved in the therapeutic sessions, the clinicians must fully understand
that a dual client relationship may exist and the rights of both parent and child require greater
consideration, especially when the parents are not able to volunteer their time as required to
successfully help complete the minors therapy.
Privacy, confidentiality, and safety issues as noted arise when third parties request the
release of the minors record information. Tranel (1994), suggest that a clinician must be aware of
the broad scope of data others may access through court intervention and as such, a studious
approach to note taking and ethical considerations become essential.
2.0 IMPLICATION
The quality of counselling services rendered to client is affected by many factors, and one
of the factors is the professional conduct of the counsellor. Counsellors behaviour can affect the

well-being of the clients, as well as change the course of their life for the better. However, the
reverse can happen if the counsellors who rendered his or her service does not do so with the
interest of the client in mind. Although the code of ethics provided by PERKAMA serves as
guidelines for the counsellor to function effectively in the profession, it does not guarantee that the
counsellor will provide a professional service.
According to Corey et al. (2006) posits that, A code of ethics cannot guarantee ethical
behaviours. Moreover, a code of ethics cannot resolve all the ethical issues or disputes, or captures
the richness and complexity involved in striving to make responsible choices within a moral
community. Rather a code of ethics sets forth values, ethical principles and ethical standards to
which professionals aspire and by which their actions can be judged.
If counsellors found guilty, a counsellor or any individual can be: (1) fine not exceeding
ten thousand or imprisonment not exceeding two years or both; and (2) in the case of continuing
offence, be liable to a fine not exceeding one thousand ringgit for every day or part of a day during
which the offence continues after conviction. Together with the code of ethics, the Act can guide
counsellors who are in dilemma when making professional decision. The code of ethics has
formally stated that he or she has the responsibility to avert, and to correct any unethical conducts
displayed by his or her peers. The act also clearly stated that a disciplinary punishment shall be
imposed when the counsellor acted with dishonesty.
Breaching the confidentiality information needs knowledge, awareness and ethical
confidential practice competence. In the study conducted by Mohamad Bokhari, Syed Najmudin
Syed Hassan and Rosli Saadan (2014), pointed out that if a counsellor is found breaching ethical
confidentiality, the counsellor must strengthen the knowledge of his or her ethics confidentiality.
When the knowledge of ethical confidentiality is intact, the process of ethical confidential
awareness will develop in the counsellors mind and soul.
Another issue of concern for counsellors in dealing with ethical issues is in obtaining
inform consent especially parental consent when counselling minors. Inform consent is an issue
that involves legal and ethical implication of ethics confidentiality to the counsellors. Applying
the five moral principles to professional functioning of any counsellors is not an easy task,
especially when dealing with culturally diverse clients. However, with a culturally diversified

society like Malaysia, the success of applying all these moral principles will definitely raise the
professionalism level of local counselling practitioners.

2.0 CONCLUSION
The issues of counsellors professionalism been raised in writings and debated in many
conferences organized in the country. The context of professionalism has always been discussed
with reference to the counsellors code of ethics established by PERKAMA. Issues that arise in
current society indicate that counselling must become even more meaningful for clients. Problems
surface when there are counsellor who do not aware with their attitude and understand the ethics
related to counselling.
Ethics code may need more work, incorporating its core values into practice then providing
feedback will help the profession find ways that benefit both clinician and client. Thus, protecting
the clients personal psychotherapy records and the welfare and safety of all parties involved,
becomes a primary responsibility the therapist must always consider. Remembering that the client
has ultimately placed their faith and trust in the clinician may provide a pathway to psychological
resolution in the therapeutic relationship that might otherwise remain unresolved.
For counselling to be effective and provide an environment in which the client feels free to
share concerns, the counsellor must be able to assure that minor client personal information will
be kept confidential. Effective decision-making methodologies also need additional consideration
in order to protect the rights of the minor, clinician, and third parties. This includes determining if
the disclosure of information is within the ethical guidelines of the individual state laws as they
also play an important role in the confidentiality disclose process.

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