Counselling and the Law
In our work as counsellors, our moral and ethical decision-making is guided by a number of different systems – we have our own personal morality, our theoretical understanding, organisational policies and procedures, an ethical framework for counselling, and of course, we must also follow the law. So how does this work in practice in counselling and psychotherapy?
Ethics and the Law
Law is necessarily linear, logical and clear, (Jenkins, 2007) whilst counselling, with its basis in relationship and its evolutionary development, often placing emphasis on humanistic principles, is by nature imprecise and heterogeneous. For this reason, the relationship between counselling and the law is challenging for the profession, and in making sense of how the systems of ethics and law sit side-by-side, it may be useful to examine some of the ways in which law and counselling ethics overlap.
Let’s consider equality:
The Equality Act (2010) is a piece of legislation designed to protect people from discrimination on the grounds of age, disability, gender reassignment marriage and civil partnership, race, religion or belief, sex or sexual orientation (Legislation.co.uk, 2010).
The legal principle of equality is closely aligned with the ethical principle of respect as described in the BACP ethical framework. In fact, adherence to anti-discriminatory law is highlighted in the framework:
Respect: “We will… endeavour to demonstrate equality, value diversity and ensure inclusion for all clients.” and “We will take the law concerning equality, diversity and inclusion into careful consideration and strive for a higher standard than the legal minimum.” (BACP, 2018, p. 20)
The therapist’s ethical duty of confidentiality is widely understood, however there are ethical and legal limits to confidentiality which the client must be made aware of so they are able to make an informed choice about what they wish to disclose.
Legal limitations to confidentiality must be adhered to by the therapist. These are:
- When a client discloses information about drug-trafficking or money laundering offences – this information must be reported to the police.
- When a client discloses information about an act of terrorism – in this situation the therapist must report the information to the authorities and must not tell the client that they are doing so.
- When a judge or coroner can make a legal order for the release of client notes – a therapist must surrender client notes where there is a legal order. It is generally considered good practice to keep client notes factual and brief.
The Data Protection Act (2018) incorporates General Data Protection Regulation (GDPR), which is relevant to the way we manage client data. It is important for therapists to familiarise themselves with this legislation, which is designed to safeguard client data, and guarantee it is only stored necessarily and justifiably (Legislation.co.uk, 2018).
A clear contract provides clients with all the relevant information about how we manage what they tell us, and when and how we might need to break confidentiality. The contract will also include information about the counselling agreement, including time-limitations and any financial element. Usually, the client signs a written contact at the beginning of therapy and it is important that the client and therapist take time together to ensure that the client fully understands, and is happy with the terms of the agreement.
Liability and Insurance
Taking out liability insurance is an important consideration when working as a counsellor. Insurance can provide financial protection in the event of legal action. Personal liability insurance is important for those in private practice; those working in organisational settings may be covered by their organisation’s insurance, but it is a good idea to check. While litigation is rare, insurance demonstrates professionalism and protection.
Statutory Regulation of Counselling and Psychotherapy
To date, there is no legally enforced regulation of counselling and psychotherapy in the UK. Joining a professional body and adhering to an ethical code is voluntary. In addition, the titles of ‘Counsellor’ and ‘Psychotherapist’ are not protected, therefore there is no legal minimum qualification needed to practice under those titles. Most employers, however, require a minimum qualification of Level 4 diploma in counselling.
Whether statutory legislation is necessary or not is a hotly debated topic in counselling and psychotherapy. At present, there are no specific plans for a change in the law, and no universally agreed answers about how counselling and psychotherapy should be regulated in the UK.
BACP (2018) Ethical Framework for the Counselling Professions [Online]. Lutterworth: BACP. Available from: <https://www.bacp.co.uk/events-and-resources/ethics-and-standards/ethical-framework-for-the-counselling-professions/> [Accessed 05 July 2018].
Jenkins, P (2007). Counselling, Psychotherapy and The Law (2nd Ed). Los Angeles: SAGE.
Legislation.gov.uk. (2010). Equality Act 2010 [Online]. Available from: <http://www.legislation.gov.uk/ukpga/2010/15/contents> [Accessed 07 Aug. 2018].
Legislation.gov.uk. (2018). Data Protection Act 2018 [Online]. Available from: < http://www.legislation.gov.uk/ukpga/2018/12/contents/enacted> [Accessed 07 Aug. 2018].
This article was written for Counselling Tutor by Erin Stevens