… There are situations that may arise in the course of practicing therapy where a therapist or counselor may need or want to confront a patient very directly and may do so in a manner that the patient dislikes. Depending upon circumstances, the practitioner may or may not have difficulties with his or her licensing board. In an interesting case in New Hampshire, a physician had a complaint filed against him with the New Hampshire Board of Medicine, which first tried to settle the matter but then forwarded it to the Attorney General’s Office for investigation. The case involved insensitive statements made by the doctor to his overweight patient.

The doctor admitted that he “told a fat woman that she was obese.” The woman claimed that the doctor was hurtful and not helpful. She claimed that the doctor said words to the effect that she was so obese that she would only be attractive to black men. In defense of that statement the doctor said that he had read polls that indicated that black men prefer overweight women. A Superior Court judge stopped the Board from taking any action against the doctor, relying upon the doctor’s constitutional right to free speech. The judge indicated that calling a patient fat or unattractive to men – though it may be offensive – is permissible.

Some ethics “experts” opine that becoming verbally aggressive to get a patient’s attention is not unethical. There are, of course, opposing views. Therapists must be careful how they talk to their patients. They should not, however, be handcuffed or intimidated from “getting real” with their clients, if necessary. Since practicing psychotherapy is both an art and a science, licensing boards should show restraint in areas like this and should not hamper practitioners from being expressive, directive, or even confrontational.

… How much self-disclosure by therapists and counselors is appropriate? Some practitioners who get in trouble, often in cases involving allegations of an improper dual relationship, are vulnerable because they have disclosed too much personal information to the patient. Usually, such disclosures appear to have been made for the benefit of the licensee rather than for the benefit of the patient or client. While there are no hard and fast rules and reasonable minds can differ about this subject matter, one thing is clear – the disclosure should be made for the benefit of the patient and to aid in the patient’s treatment.

A study was recently concluded with respect to physicians and the issue of self-disclosure, and the results disturbingly showed that much of the conversation between physician and patient was for the benefit of the doctor and was not reasonably related to the treatment of the patient. The study pointed out that one of the primary purposes of physician self-disclosure is to help to more quickly and closely connect with the patient, thus establishing a better doctor-patient relationship that is more likely to produce a better treatment outcome. This would seem to be especially true with respect to the relationship between a psychotherapist and a patient.

I asked several questions in that article, the first of which I address below. The remaining questions are for others to answer. The questions asked were as follows: a) Is it okay for the therapist to accept the bequest or must/should it be returned to the estate? b) What would your lawyer say? c) What would your professional association say? d) What would be the position of your licensing board?

It is important to read the October 2007 Bulletin to understand my general bias against the giving or receiving of gifts and the reasons why I feel that way. I do recognize, however, that there are exceptions to my general rule and that circumstances may arise where the giving or receiving of a gift may be appropriate, supportable, and lawful. The scenario referenced above appears from the facts presented to be just such a circumstance, despite the large amount of the bequest. In my view, it is okay for the therapist to accept the bequest and there is no need to return it to the estate. Of course, if a state law, regulation, or ethical standard prohibited the gift’s acceptance, a different answer would be given.

The therapist was apparently unaware of the bequest when it was made. There apparently was no discussion of a bequest or gift between the therapist and patient during the course of therapy. There appears to be no family outrage or opposition. To the contrary, the family seems to be supportive of the idea. There was apparently no pattern of prior gift-giving or receiving and there appear to be no issues of dual relationship, exploitation, boundary violations, or anything other than a good will gesture motivated by appreciation for services rendered. The fact that the client was wealthy is helpful when thinking about the size of the gift. In the absence of a specific prohibition against accepting and keeping the gift, there appears to me to be no valid reason requiring refusal or rejection of the bequest.

It is unlikely that a situation like this would escalate to a point where a complaint would be filed with a licensing board or an ethics committee, especially if the therapist is able to properly assess the situation and the people involved. Generally, in a situation such as this, it is unlikely that information about the bequest will be widely known, if at all. But – since anything can happen, therapists must always be thoughtful and reflective about such issues. Ethical standards should be carefully reviewed and consultation with an attorney may be appropriate – depending upon circumstances. In the category of “anything can happen,” I have seen cases where the spouse of the therapist, who is privy to information about the therapist’s practice, such as the receipt of a gift by the therapist-spouse, is the one who files a complaint. Obviously, this might take place after the couple has bitterly parted ways or when they are battling in a custody dispute!

In this particular case, even in the unlikely event that the bequest would come to light and result in a complaint to an ethics committee or a licensing board, the therapist should have no liability before either body because he or she has apparently not engaged in prohibited conduct. While one or both of these bodies may decide or be required to investigate, the therapist should not have any vulnerability – other than the stress and expense of going through such a proceeding. Based upon the facts presented in this case, the investigation should be brief and the complaint should be dismissed early – unless the committee or the board acts arbitrarily and without sufficient justification. This would hopefully be rare, although it can and does happen.

Remember - each case is different, and each case is to be decided based upon the particular facts and circumstances involved. This means that if one material fact changes, the advice to be given or the result to be reached may be different. So, if the facts in this scenario were to change, and the patient told the therapist (while the patient was still in treatment) of the intent to leave a gift by will, a different situation would be presented. Likewise if it was revealed that the therapist had told the wealthy patient of her financial difficulties during the course of therapy and a bequest was later made. But in this case, as the facts are presented, and assuming that no law, regulation, or ethical standard is violated, the therapist has in my view done nothing wrong if he/she accepts the bequest.

A more difficult situation is encountered if the therapist or counselor desires to write a book – for commercial gain – and wants to include particulars about a case (e.g., information about a patient or family members) that he or she has handled. This idea usually unfolds after the termination of therapy, and sometimes, after the death of the patient. In such situations, the practitioner’s concern is usually to do adequate masking of the identity of the patient(s) and to change some of the less important details of the case so as to protect patient privacy as much as possible. There is, however, or there should be, an additional concern.

Since the patient and perhaps the patient’s family know the identity of the therapist or counselor who is the author, they are more likely to have an easier time than the general public would in recognizing that the book is about them. The therapist or counselor who has not first obtained a written authorization or consent from the patient (or the patient’s representative) before venturing forward with this commercial venture may hear from the patient, or an attorney representing the patient. The claim may be that the therapist has usurped confidential information from the patient and used it for commercial gain (exploitation will likely be alleged, among other things) without the knowledge or consent of the patient.

The patient may also seek damages for breach of confidentiality and may seek a portion of the revenue derived from sales. Thus, if the therapist or counselor desires to minimize risk, it would be advisable to obtain the patient’s consent or authorization to proceed with the story – even where the identity of the patient or client is going to be masked. The manner in which this is done (and in some cases, whether or not it needs to be done), and the form and content of the authorization or consent, are matters usually requiring consultation with an attorney and perhaps others (e.g., publishers).

… Therapists or counselors may sometimes desire to advocate with insurers or HMOs for appropriate health care for their patients, but may be reluctant to do so for fear of retaliation by the insurer or HMO. This kind of advocacy essentially means that a health care practitioner may appeal a payer’s decision to deny payment for a service pursuant to the reasonable grievance or appeal procedure established by the payer, or to protest a decision, policy, or practice that the health care practitioner reasonably believes impairs his or her ability to provide appropriate health care to the practitioner’s patients.

One state (and perhaps others) has passed a law that protects, at least to some extent, against retaliation by the HMO, insurer, or other payer. This law also applies to medical groups, independent practice associations, preferred provider organizations, and hospital medical staffs and governing bodies. The law provides that the application and rendering by any individual, partnership, corporation or other organization of a decision to terminate an employment or other contractual relationship with or otherwise penalize a health care practitioner principally for advocating for appropriate health care consistent with that degree of learning and skill ordinarily possessed by reputable health care practitioners with the same license or certification and practicing according to the applicable legal standard of care violates the public policy of the state. While this law does not provide for specific penalties for such retaliation, its existence helps to establish a health practitioner’s case against an organization that engages in such retaliation.

HOME VISITS

… Michael Jackson’s death, and the investigation of several doctors, including one or more “concierge doctors,” raised the question of home visits for me. What would a licensing board do if it found out that a licensed professional counselor or licensed marriage and family therapist was living with a patient or client in order to provide around the clock monitoring and care for his/her mental health problems? What if this were done with a suicidal patient? I suspect that the licensee would be in considerable jeopardy, both ethically and legally, to say the least.

On the other end of the spectrum is the simple home visit to a patient or client, who for any number of reasons, may prefer or need to be seen in his or her home. There is nothing wrong, in my view, with a therapist or counselor seeing a patient or client in that manner. In the fine tradition of family medicine, as it was practiced for many years in our country, and in recognition that home health services are an important part of our current and future health care delivery system, home visits should not garner undue concern. One can certainly argue that when services are delivered in the home, the therapist or counselor might gain useful knowledge about the client that might otherwise not be apparent. That does not mean that there aren’t certain considerations and issues involved with respect to home visits.

For example, if a pre-licensed person working under supervision for a nonprofit and charitable corporation or for a private practitioner were to make home visits, what special considerations or issues might there be? One that comes to mind is the possible liability for the employer in the case of an accident on the way to the client’s home or from the home. If the supervisee is at fault in an auto accident, the employer might have some liability since the driving was for business purposes. Additionally, I would assume that in many states, since the employee was injured on the job (or on the way to or from the job), the employer might have liability under the workers’ compensation system.

There may also be issues with respect to supervision that will arise. Will the supervisor make one or more home visits? Will the supervisor assure that home visits are appropriate for a particular client with this particular intern? What time of day or night will these visits be made? Suppose that an intern engaged in sexual relations with the patient at the patient’s home. Suppose further that the supervisor had not made a home visit to examine the environment or to observe and talk with the client first. Suppose that the supervisor never observed any of the therapy sessions? Might not the supervisor and the employer have some vulnerability? Of course, these same issues can arise in an office setting as well.

On a separate note, but of concern and importance, employers should make sure that patient or client records are not being transported out of the employer’s place of business, or if they are, persons are adequately trained or educated about the necessity to safeguard the records and the manner in which that can be done. If this topic is neglected, a confidentiality crisis can unexpectedly appear when records are lost, misplaced, or stolen, or when the records are kept in the home of the employee. Also of concern is the issue of insurance billing, to the extent that becomes relevant. Practitioners must be careful not to misrepresent the place where the services were rendered by using incorrect procedure code numbers. Confidentiality and privacy concerns are always relevant. For example, where will services be rendered – in what room? Will anyone else be in the house or likely to visit? Will the client or patient tell the other people that may be present that you are a therapist or counselor – or will he/she want that information to remain private?

If a practitioner is in an automobile accident on the way to or from a home visit with a client or patient, and if there is a claim from an injured party with the practitioner’s automobile insurance company, will the insured practitioner tell the insurer that he or she regularly uses the car for business purposes – that is, to make home visits? Has the insured previously informed the insurer of this kind of use of the automobile? I would hope that coverage would not be jeopardized, but the insurer may look for an increased premium or may want to deny future coverage.

None of these considerations, however, seem to me significant enough to deter one from deciding to deliver services by making home visits. One must simply think of the different issues that may arise and be prepared to deal with them in an ethical and lawful manner. I’ve advanced a few of my thoughts in this short piece about home visits, but certainly have not touched upon all of the issues and considerations that may be involved in any particular situation.

… There are many legal issues affecting mental health professionals that involve the subject of diversity. Perhaps one doesn’t think about diversity issues and the legal issues involved with avoiding liability as interconnected, but they may well be. Here are only three examples of their inter-connectedness.

For instance, I have been asked whether a Christian counseling center can hire only Christians to perform Christian counseling services for a nonprofit corporation. I have been asked by a transgender therapist, who presented as a woman but was biologically a male, whether he had to disclose to the patient, prior to the commencement of treatment or at some other time during the course of treatment, the fact that he was biologically a male. With respect to the issue of reporting child abuse, I have been asked whether a mandated reporter must make a child abuse report when the therapist or counselor knows or determines that a physical injury, scald or burn mark was inflicted as part of an accepted cultural ritual in the country of origin for the family, and not as a result of negligence or criminal intent.

I will discuss these questions, and answer them, in a future issue of the Avoiding Liability Bulletin. In the interim, you might think about how you would answer these questions. I raise them now merely to point out that the many legal and ethical issues involved with avoiding liability are broad in scope and sometimes arise in unexpected ways.  

In the December 2009 issue of this Bulletin, I gave three examples of, and asked related questions about, the inter-connectedness of diversity issues and the legal issues involved with avoiding liability. I indicated that I would discuss the questions asked, and answer them, in a future issue of the Bulletin. The three examples are repeated immediately below. 

One example involved the question of whether a Christian counseling center can hire only Christians to perform Christian counseling services for its nonprofit corporation. Another example involved the question of whether a transgender therapist, who presents as a woman but is biologically a male, has to disclose to the patient, prior to the commencement of treatment or at some other time during the course of treatment, the fact that he is biologically a male. Finally, I asked whether a mandated reporter of child abuse must make a child abuse report when the therapist or counselor knows or determines that a physical injury, scald or burn mark was inflicted as part of an accepted cultural ritual in the country of origin for the family, and not as a result of negligence or criminal intent. Some discussion follows.

With respect to the nonprofit Christian counseling center, it is important to know that there are federal and state laws (and sometimes local laws) that bar discrimination in employment based upon one’s religion or religious beliefs. While spiritual or Christian counseling is generally accepted as a lawful activity, it does not necessarily follow (in my view) that only Christians can competently perform Christian counseling. While an employer can lawfully seek to hire those who are competent to perform a particular service, it also seems clear to me that it would be impermissible to state or imply that Jews or Muslims need not apply! One must check the applicability of state or federal law to their particular organization to determine whether and in what way the law may affect the nonprofit corporation’s hiring and other employment related operations.

For example, there are exemptions under federal law (Title VII of the Civil Rights Act of 1964 – which applies to employers with fifteen or more employees) for “religious organizations” and “religious educational institutions” that allow such organizations to give employment preference to members of their own religion. The precise meaning of these terms, and the extent and nature of the allowable preference, as well as the manner in which it can safely be implemented, is perhaps the subject for further inquiry by those who are interested. Even though a federal anti-discrimination law may not be applicable, a state or local anti-discrimination law may apply. Most states prohibit employment discrimination based upon religion or religious beliefs. As to whether there is an exemption or exception under state law, and if so, the extent and nature of such, this can be pursued by those who may be interested.

The transgender therapist who presents as a woman but is biologically a male does not, in my view, have to disclose to patients, prior to the commencement of treatment or at some other time during the course of treatment, the fact that he is biologically a male. I must state at the outset that I am not aware of any state law or regulation, or any ethical code provision that directly governs this topic. Nor am I aware of any case law that has addressed this issue. I have heard arguments from some that counter my position on this issue. They essentially argue that the doctrine of informed consent might require disclosure at the outset of treatment and that the failure to disclose at any time during the course of treatment, depending upon the circumstances, may constitute a fraudulent misrepresentation of some kind.

I argue otherwise. Each state has its own requirements for therapists and counselors regarding their duty to make certain disclosures to clients prior to the commencement of treatment. I am not aware, however, of any state that requires a therapist or counselor to disclose his or her religion, marital status, sexual orientation, or gender identity to the patient – whether at the outset of treatment or otherwise. Without going into great detail, which may be necessary when discussing the doctrine of informed consent, I do not believe that informed consent (as I understand that term’s meaning in California) is directly involved here. We are not dealing with a question of the risks and benefits of a particular treatment, whether experimental or otherwise, nor are we dealing with treatment that is inherently dangerous. Again, it is likely that no statute or regulation specifically mandates such a disclosure.

Some might argue that patients are often desirous of seeing a therapist of a particular gender and that they have a right to be told of the actual gender – especially when it becomes known or reasonably believed by the therapist or counselor that his/her gender is important to the client. They might argue that the failure to disclose constitutes a fraud upon the client, or that fraudulent misrepresentations have been made – either directly or indirectly. Since this situation would likely present a case of first impression, the opposing lawyers would make their arguments on either side of this issue and a court or jury would make a decision based upon general principles of tort law.

The defendant practitioner might argue, among other things, that the patient never expressed any concerns or had any questions regarding the gender of the therapist, and more importantly, that there was no misrepresentation. The practitioner might also argue that his or her gender identity and gender expression was a true representation of who the practitioner is – which was clearly apparent to the patient – and that there is no duty to disclose such highly personal information as the practitioner’s biological particulars. The practitioner in our example presented as a woman, and presumably did so in good faith. The patient’s expectations have been met – the patient’s practitioner is, for all intents and purposes, a woman – except for the genitalia. If the therapy or counseling rendered is competent, ethical, and within the applicable standards of care, the therapist should, in my view, prevail.

With respect to the question involving the child abuse reporting requirements of mandated reporters, I must repeat my oft-made statement that state laws vary, often in fine nuance. Also, it is important to point out that mandated reporters typically have immunity from liability for making child abuse reports when they know or reasonably suspect (or a similar standard) that child abuse has occurred. On the other hand, failure to report child abuse can result in substantial liability for the unwary therapist. Thus, when faced with close calls, mandated reporters often lean in favor of reporting.

In the example presented, the mandated reporter knows or determines that the child has suffered an injury that appears to have been inflicted non-accidentally. In fact, the injury appears to have been inflicted intentionally by the parent. While there may not have been the requisite criminal intent on the part of the parent to constitute a crime or to warrant a criminal prosecution or conviction, there typically need not be a criminal intent present in order to warrant the filing of a child abuse report.

In California, for example, child abuse is defined, in part, as a physical injury (includes a burn or scald mark, or bruise) inflicted by other than accidental means on a child by another person. This appears to be what happened in the example presented. The child abuse reporting law in California does not provide an exception for injuries inflicted upon a child as part of a customary cultural ritual. When the therapist or counselor makes the child abuse report, whether by telephone or in writing, or by both (depending upon state law requirements), he or she should mention the cultural factors involved. The investigators and others can decide whether or not it would be appropriate to charge the accused or whether the cultural factors are more appropriately used in mitigation of any penalty that may be imposed.

The issue of payment for supervision is once again being raised in California with respect to the marriage and family therapy and social work professions. This time the question being asked is whether an employer may lawfully charge or receive payment for supervision provided to an employed or volunteering intern. For many years, payment by pre-licensed persons (such as, registered interns) for supervision has been permissible (with respect to the acceptability of hours of experience), except when employed in a private practice setting. Recently, the licensing board for these two professions sponsored a bill that removed the restriction on payment for supervision when a pre-licensed person is employed in a private practice setting. Thus, the licensing board (Board of Behavioral Sciences) has for many years counted the hours of experience of interns and trainees regardless of whether such pre-licensed persons paid for supervision or not (except in private practice settings – which was for a long time prohibited, but no longer).

Employers who hire interns or trainees must be careful, however, that they do not run afoul of state labor laws pertaining to the payment of wages. For example, the California Labor Code makes it unlawful for an employer to collect or receive from an employee any part of wages previously (the statute uses the word “theretofore”) paid by the employer to the employee. There are exceptions to this law, one of which allows a deduction from the employee’s wages when a deduction is expressly authorized in writing by the employee and the deduction does not amount to a rebate or deduction from the standard wage arrived at pursuant to a wage agreement. These laws are intended to prevent the employer from exploiting the employee. Typically, a state labor authority would get involved if and when an employee files a complaint alleging that he or she has been exploited by the employer.

A written agreement between the employee and employer might include, for example, that the employee understands that his or her wage is fixed at a specific amount, that he or she agrees that the employer is not obligated (some may be) to provide the kind and amount of supervision required by the licensing law for the employee to be credited with hours of experience toward licensure, that the supervision to be given is for the personal benefit of the employee who is seeking state licensure, and that the employee understands and agrees that the payment for such supervision is voluntary and is not considered by the employee to be a deduction from wages. To determine whether or not such an agreement (with different or additional provisions, depending upon the specific arrangement) is satisfactory, employers must get their own legal advice in order to make sure that they do not violate applicable state laws.

How is the issue of payment for supervision handled in the state in which you practice? Are employers allowed to charge or receive payment for supervision? Does the licensing board accept hours of experience gained toward licensure when the pre-licensed person pays for supervision? May employers (including nonprofits) charge volunteers or employees a “training fee” rather than charge for supervision?

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…Therapists and counselors often discuss the issue and process of termination of treatment, including the question of when the termination becomes effective, but not as much discussion occurs with respect to the question of when the therapist-patient or counselor-client relationship begins. When I write about this topic I do have a bias in thinking about the consumer of mental health services as the “patient,” and not as the “client.” Lawyers have clients. Prostitutes have customers. Retail establishments have consumers. Practitioners who provide mental health services, or who seek to diagnose and treat mental or emotional conditions or disorders, do so, in my view, with patients. The psychotherapist-patient privilege is granted to patients, not clients. “Patient,” for purposes of the privilege, may be defined as a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his or her mental or emotional condition. Thus, I discuss the duty to the patient below!

Some may think that the relationship with the patient begins when the first session begins, or perhaps when it ends. Others may peg the beginning of the relationship to when the patient pays for the first session. Others may argue that the relationship begins when there is an oral (or written) agreement to provide services at an agreed upon fee, or after the patient receives the therapist’s disclosure or “informed consent” form. While this is a rather technical question and usually not of great importance, I am reminded of the situation where a therapist receives a telephone call from a prospective patient referred by a former patient of the therapist. The prospective patient tells the therapist that his wife has just informed him of her desire for a divorce, that he needs some help during this trying period of time, and that the therapist was highly recommended. The therapist tells him that he has an opening on Friday afternoon and that his fee is $125 per hour. The prospective patient makes an appointment for Friday, some four days later.

Suppose that on Wednesday before the scheduled meeting the “prospective” patient calls in crisis – talking of possible violence aimed at his wife and her new companion. Suppose further that the therapist has second thoughts about taking on such a difficult case and thinks about telling the “prospective” patient” of his reluctance to proceed and his desire to make a referral to a therapist who deals with this kind of acute problem. Finally, suppose that the “prospective” patient insists upon seeing the therapist that evening. What is the duty of the therapist?

My view is that the therapist is under a duty to see the new patient, to assess the situation, and by doing this, to thereby commence “treatment” (hold a first session). Consultation may be needed. Referral for appropriate reasons may soon be necessary. However, the failure to see the patient for the initial visit, for which an appointment was made, could result in liability for the therapist. An effort to refer the patient prior to the first session, under these facts, would in my view create a liability problem for the therapist in the event that the patient was to object.

… A suggestion was made for me to write about a case where Eastern Michigan University (a public institution) dismissed a Christian student from its master’s degree program in school counseling for refusing to counsel a homosexual client during the practicum course. The practicum course and student handbook required, among other things, that all students in the program adhere to the American Counseling Association’s Code of Ethics and Standards of Practice, which, among other things, binds counselors to respect the diversity of clients, to not impose values upon clients inconsistent with counseling goals, and to adhere to a nondiscrimination policy in the delivery of counseling services to consumers. The student refused to provide relationship counseling services to the client because she believes that homosexuality is morally wrong and that it conflicts with her orthodox Christian beliefs. She would not engage in gay affirming counseling, and was dismissed from the program following an informal review and formal hearing process.

The graduate student sued the school in U.S. District Court (Eastern District of Michigan, Southern Division) claiming, among other things, that her dismissal from the program was wrong and that it violated her religious freedom. She claimed that her civil rights (e.g. the “free speech” and “free exercise of religion” clauses of the First Amendment) were violated by the dismissal from graduate school. This case (Ward v. Wilbanks, et al.) pits religious freedom principles against the rights of public universities to run their institutions as they deem appropriate – that is, in a manner that is best for the education of professionals, and ultimately, best for the public. Both the graduate student and Eastern Michigan University moved for summary judgment. The Court granted summary judgment in favor of the University and ruled against the student’s motion for summary judgment. A motion for summary judgment is a procedural maneuver to promptly dispose of civil litigation without the necessity of a trial. Usually, there is no dispute as to the material facts of the case.

The District Court (the trial court) essentially ruled that the University was justified in removing the graduate student from the program and based its decision, in significant part, on the American Counseling Association’s Code of Ethics provisions related to the prohibitions against discrimination in providing services to clients (the public). Most professional mental health associations have codes of ethics or standards that prohibit discrimination in the provision of professional services based upon race, religion, national origin, age, sexual orientation, gender, gender identity, disability, marital status, or disability. Other ACA standards were cited by the Court, such as, but not limited to, the more general duty to respect the dignity of clients and the duty to actively attempt to understand the diverse cultural backgrounds of clients.

The judge also ruled that EMU had a rational basis for requiring students to counsel clients without imposing their own personal values. The Court also found that the University had good reason to adopt the ACA Code of Ethics as the standards applicable to its counseling degree program.

The decision states, in pertinent part:

“In sum, plaintiff unequivocally demonstrated her unwillingness to make any effort at working within the clients’ value systems when they are not in accordance with hers. By insisting on undifferentiated referral of an entire class of clients, plaintiff violates the ACA Code of Ethics….”

The Court points out that the graduate student (the plaintiff):

 “… was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to be under the ACA standard.”

The student’s attorney asserts that this decision can result in Christian students across the country being expelled from public universities based upon their moral/legal beliefs. The trial court’s decision is on appeal. I will again write about the lawsuit when I am aware of a decision from the United States Sixth Circuit Court of Appeals.

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In the June 2011 edition of the Avoiding Liability Bulletin, I wrote about the case where Eastern Michigan University dismissed a Christian student from its master’s degree program in school counseling for refusing to counsel a homosexual client during the practicum course. The student refused to provide relationship counseling services to the client because she believes that homosexuality is morally wrong and that it conflicts with her orthodox Christian beliefs. More particularly, she would not engage in gay affirming counseling, and was dismissed from the program following an informal review and formal hearing process. She sued the University. I reported that the U.S. District Court granted summary judgment in favor of the University, and based its decision, in part, on the American Counseling Association’s Code of Ethics provisions related to the prohibitions against discrimination in providing services to clients.

The student appealed the lower court decision to the U.S. Court of Appeals for the Sixth Circuit, which issued its decision on January 17, 2012 reversing the trial court’s grant of summary judgment in favor of the university. As mentioned in the June 2011 article, a motion for summary judgment is a procedural maneuver to promptly dispose of civil litigation without the necessity of a trial. The U.S. Court of Appeals decision made clear that neither side deserves to win as a matter of law. The U.S. Court of Appeals sent the case back to the U.S. District Court (the trial court) for further proceedings. If the case is not settled, it may eventually proceed to trial and be decided on the merits. As in most cases, there will likely be questions of fact and credibility for a judge or jury to decide.

In a statement issued by Eastern Michigan University regarding the Court of Appeals ruling, the school said that the case has never been about religion or religious discrimination, nor is the case about homosexuality or sexual orientation. The school’s statement said that the case is about what is in the best interest of a person in need of counseling, and about following curricular requirements of EMU’s counseling program, which adheres to the Code of Ethics of the American Counseling Association and the Ethical Standards of the American School Counselor Association.

The U.S. Court of Appeals discussed two of ACA’s Code of Ethics provisions, one of which (Section A.4.b.– Personal Values) says that counselors are aware of their own values, attitudes, beliefs, and behaviors and avoid imposing values that are inconsistent with counseling goals. This provision also says that counselors respect the diversity of clients, trainees, and research participants. The other provision (Section C.5.– Nondiscrimination) says that counselors do not condone or engage in discrimination based upon age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation … or any basis proscribed by law. This provision also says that counselors do not discriminate against clients, students, employees, supervisees, or research participants in a manner that has a negative impact on these persons.

The Court of Appeals entered upon an interesting discussion of these provisions. The decision states, in part:

“Although the university submits it dismissed Ward from the program because her request for a referral violated the ACA code of ethics, a reasonable jury could find otherwise – that the code of ethics contain no such bar and that the university deployed it as a pretext for punishing Ward’s religious views and speech.”

With regard to Ward’s request for a referral, the decision explained that when the university asked Ward to counsel a gay client, Ward asked her faculty supervisor either to refer the client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues. The faculty supervisor referred the client. Thereafter, the university commenced a disciplinary hearing into Ward’s referral request, which eventually resulted in Ward’s expulsion from the program. The lower court (U.S. District Court) decision had concluded that by insisting on undifferentiated referral of an entire class of clients, Ward violated the ACA Code of Ethics.

The Court of Appeals decision opines that the ACA code of ethics does not prohibit values-based referrals like the one requested by Ward. The decision explains that the point of the referral request by Ward was to avoid imposing her values on gay and lesbian clients. The Court points out that another section of the code of ethics expressly permits value-based referrals. The provision referred to by the Court (Section A.11.b. – Inability to Assist Clients) states that if counselors determine an inability to be of professional assistance to clients, they avoid entering or continuing counseling relationships. This section also says that counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. The Court cites other examples supporting its assertion that value-based referrals are not prohibited in the counseling profession.

The Court states that even though the code of ethics permitted Ward’s referral request, the university says that the department had a policy of disallowing any referrals during practicum. Ward claimed that no such policy existed and that referrals were not prohibited. The Court states that the record, as shown, contains no evidence of such a policy and that ample evidence supports the theory that no such policy existed – until Ward asked for a referral on faith-based grounds. The decision states that allowing a referral under the circumstances involved in this case would be in the best interest of the client, who would receive treatment from a counselor better suited to discuss his relationship issues.

With respect to Section C.5.-Nondiscrimination of the ACA Code of Ethics, the Court, by way of analogy, gives two examples of the application of this provision:

“Surely, for example, the ban on discrimination against clients based on their religion (1) does not require a Muslim counselor to tell a Jewish client that his religious beliefs are correct if the conversation takes a turn in that direction and (2) does not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues. Tolerance is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination.”

It appears to be this Court’s view that Ward’s referral request can be seen as demonstrating her recognition and respect for this provision of the ACA Code of Ethics and that this is something that a jury could decide. While the Court expressed its opinions about these matters in the context of reversing the trial court’s dismissal of Ward’s lawsuit on EMU’s motion for summary judgment, it should be understood that this Court did not decide the lawsuit in any way – what it did was send the case back to the trial court for further proceedings.

The Court made clear that at this stage of the case, and based upon the evidence received in this case, neither side deserves to win as a matter of law (on a motion for summary judgment). The Court pointed out, for example, that a jury might construe the evidence in the university’s favor and might credit the university’s claim that a no-referral policy existed for the practicum class, thus justifying the expulsion. Eastern Michigan University has petitioned for a rehearing en banc (the full bench of judges, rather than the panel of three that decided the case).

So, in a sense, we are back to the beginning, but the decisions of both Courts are interesting and thought-provoking. Suppose that the counseling student did not seek to refer, but instead agreed to treat the individual or the couple. What disclosures, if any, would the student be required to make, prior to the start of treatment, to the prospective patient, and why would these disclosures be required? If not required, what disclosures should be made, if any, prior to the commencement of treatment, and why? How would full disclosure of the student’s orthodox Christian beliefs affect the patient and the therapeutic relationship? Should the student be permitted to become a school counselor? Some things to think about!

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