Legal and Ethical Issues in Online Counseling

Introduction

The counseling profession has developed tremendously over the years. As the world continues to become more technologically advanced, it has challenged the profession to do so as well. The Internet is commonly used in everyday life, anywhere from online shopping, online schooling, and now online counseling. It is known that counselors are guided through ethical and legal issues by the help of the ACA Code of Ethics (2014), professional literature, and any legal advice obtained from a lawyer. However, online counseling can widely fluctuate from face-to-face counseling, therefore, ethical and legal issues may look different, and need to be handled differently.

The ACA Code of Ethics (2014) includes a section specifically created for ethical online counseling and the use of technology in counseling. However, these are just a guide, the Internet opens up a whole new world for counselors and how to ethically practice through the use of technology. As the counseling profession continues to expand for the benefit of clients, it is important for counselors to constantly strive for competency.

Competency is a continuous learning process for counselors and when faced with new upcoming practices, such as online counseling, it is best to be proactive in learning about potential risks and benefits. Some legal and ethical issues can arise in online counseling and it is crucial to be prepared. We will be discussing a few of these areas that issues can arise, such as within informed consent, client verification and confidentiality, miscommunications and emergencies, and legal and jurisdiction implications.

Informed Consent

Obtaining informed consent in counseling benefits the client and the counselor. The client is aware of important pieces of information like limits to confidentiality, billing arrangements, therapy styles of the counselor, time restrictions, etc. (Remley & Herlihy, 2016). The counselor is able to put most of the information that is questioned during counseling onto a document for the client to go over. This in turn, helps the counselor set boundaries so that they are practicing legally and ethically.

Informed consent in an online counseling relationship may be difficult to address. More concerns may need to be discussed when participating in online counseling as opposed to face-to-face counseling. Informed consent for online counseling needs to be detailed and referred back to often. Some concerns that may not arise in standard face-to-face counseling could include security, time zones, technical issues, and there could be a potential difference in billing or insurance (Ross, 2011).

Security breaches need to be discussed with clients when conducting online counseling. Most online counseling databases or programs used will have a strong protective security wall up to keep client confidentiality, however, networks and the Internet can still be hacked, and that needs to be made known to the client (Johnson, 2017). It is important to note that during informed consent it would be beneficial to the client that the counselor inform about the risks using online counseling (Johnson, 2017). The counselor should urge the client to find ways to improve their Internet security, especially if the client is worried about hackers or a breech in confidentiality (Johnson, 2017).

It is essential in a strictly online counseling relationship that time zones are addressed in informed consent (Ross, 2011). While this may not be a pressing matter when discussing informed consent with a client, it does serve to be of importance (Beel & Court, 1999). If time zones are different or ever become different, notification of the difference so that counseling sessions could be set up properly is needed (Ross, 2011).

Anytime technology is used there is always potential for problems and this needs to be included in the informed consent document. Specifically when this happens, the client has to be aware that any network or computer complications cannot be immediately fixed, and can sometimes result in loss of records or notes (Beel & Court, 1999). It is however the counselor’s responsibility to have a back up plan when time, and possibly money, are lost because of a disconnection or a technological issue (Harris & Birnbaum, 2015).

As far as billing and insurance for online counseling, many insurance companies will start to recognize and cover the practice of online counseling as research is beginning to show how effective it can be for clients (Ross, 2011). According to Ethical, Legal and Professional Issues in Counseling, “Behavioral Health Innovation (2014) reported that reimbursement of distance counseling has increased dramatically in the last few years,” (Remley & Herlihy, 2016). Discussing billing and insurance is normally included in face-to-face counseling, however, clients may have questions about if their online counseling sessions will be covered by their insurance, and if not, then they will need to know the cost of the service (Ross, 2011). Typically it is recommended to include price for online counseling on a website promoting the service (Ross, 2011).

Informed consent can be tricky when dealing with online counseling but it is necessary for the client to have a full understanding of the counseling relationship being created (Remley & Herlihy, 2016). Some more ethical issues that may arise in online counseling will be further discussed. The ACA Code of Ethics (2014) refers to informed consent and security for distance counseling, technology, and social media in section H.2 (American Counseling Association, 2014). H.2.a, H.2.b, H.2.c, and H.2.d discuss informed consent and disclosure, confidentiality maintained by the counselor, acknowledgement of limitations, and security (American Counseling Association, 2014). It is understood that a thorough informed consent when discussing online counseling with a client can assist in preventing ethical and legal issues (Kaplan, Wade, Conteh, & Martz, 2011).

Client Verification and Confidentiality

Anonymity has been widely accepted and promoted when it comes to Internet use. Online games, chat rooms, and forms of social media all have ways to remain anonymous. This can create a potential ethical issue in online counseling. While it is possible for someone to seek face-to-face counseling using a false identity, the importance of client identity is continuing counseling sessions with the person who originally agreed to the informed consent (Kaplan, Wade, Conteh, & Martz, 2011). Client verification is a safety measure for both the client and the counselor. In the ACA Code of Ethics (2014) section H.3 states:

Counselors who engage in the use of distance counseling, technology, and/or social media to interact with clients take steps to verify the client’s identity at the beginning and throughout the therapeutic process. Verification can include, but is not limited to, using code words, numbers, graphics, or other nondescript identifiers, (American Counseling Association, 2014).

Verifying the client’s identity, location, and possibly an emergency contact may also be useful in an emergency situation such as suicidal risk, sexual abuse, or violence (Harris & Birnbaum, 2015). Otherwise, if we are unaware of the client’s identity or other useful information, and the client is being harmed, we have no way of getting them the help they need (Duplaga & Dzida, 2013).

Client confidentiality is extremely important in face-to-face counseling as well as in online counseling. As noted before, informed consent plays a large role in explaining confidentiality to clients who are participating in online counseling. Information can be transmitted in so many different ways and through different avenues (Beel & Court, 1999). Emails, texts, direct messages, and even live feed can all be intercepted or sent to the wrong person (Beel & Court, 1999). It is important that the client is aware of the confidentiality risks when engaging in online counseling. There is always the possibility that unintentional breeches of confidentiality happen, like leaving computer browsers open, public computers, or giving passwords to others, and clients should be reminded of these things (Johnson, 2017).

Professional counselors are constantly trying to protect client confidentiality, and when online counseling comes into play, there are always risks. Counselors should go through the appropriate measures to try to maintain client confidentiality, such as incorporating code words or using encryption software to communicate through (Kaplan, Wade, Conteh, & Martz, 2011). Even with all of these precautions, confidentiality for online counseling could still be broken, thus clients need to be aware so that ethical and legal issues do not arise.

Miscommunications and Emergencies

Miscommunications happen all the time, especially through technology. Without the presence of facial expressions when communicating with someone, words may be understood in the wrong tone or context. This relates directly to online counseling because the face-to-face interaction is missing. Ethical issues may come about when working with a client in an online session because of a lack of nonverbal cues. Some researchers have expressed a problem with online counseling because nonverbal cues are seen as extremely crucial to counseling relationships (Ross, 2011).

Ethical issues may happen when either the counselor misinterprets what the client is saying or vise versa (Harris & Birnbaum, 2015). Assessing feelings is one of the roles of the counselor when in session with a client, and this may become difficult when there are no facial expressions or changes in body language to evaluate. Due to the lack of nonverbal cues or misunderstandings between client and counselor, the counselor also may misinterpret a clinical idea about the client and this could result in a misdiagnosis (Harris & Birnbaum, 2015).

Another issue with online counseling could be that crisis management is not as efficient when compared to face-to-face counseling. A perceived lack of empathy from the counselor to the client during an emergency situation may make matters worse (Harris & Birnbaum, 2015). Distance is a problem when discussing emergency care for a client because the client is not so easily accessible to the counselor. Most literature suggests obtaining the client’s location and a list of emergency contacts simply for safety precautions (Johnson, 2017). However, where the ethical and legal issues arise, is when the client is unwilling to give up this sort of information and a crisis does actually occur.

Legal and Jurisdiction Implications

When faced with issues in counseling, considering the legality side of the issue is incredibly important. Online counseling can also be termed “distance counseling”, and the legal aspects of distance counseling definitely need to be discussed and reviewed. Currently, legal and jurisdiction issues in distance counseling are still being discussed and resolved by literature and state licensing boards (Remley & Herlihy, 2016). However, there has been some discussion about these issues up to date. The ACA Code of Ethics (2014) section H.1.b states:

Counselors who engage in the use of distance counseling, technology, and social media within their counseling practice understand that they may be subject to laws and regulations of both the counselor’s practicing location and the client’s place of residence. Counselors ensure that their clients are aware of pertinent legal rights and limitations governing the practice of counseling across state lines or international boundaries (American Counseling Association, 2014).

When a counselor chooses to engage in distance counseling, they are stepping into an unknown area of jurisdiction, and there is always the question if liability insurance will cover malpractice over state lines (Beel & Court, 1999). Most literature recommends that counselor’s stay within their state lines or jurisdiction, because when using distance counseling or online counseling, there is a verbatim copy or video of the interventions made between counselor and client (Johnson, 2017). When crossing jurisdictions or state lines, it is important to know where the server is located as well so that records may not be unknowingly given or owed to another jurisdiction (Johnson, 2017). “An example of this, a counselor located in Canada could be providing their services through a server located in the United States and unknowingly subject their records to the jurisdiction of American privacy laws,” as stated in E-Counselling: A Review of Practices and Ethical Considerations (Johnson, 2017). Thus, verbatim notes or records of counseling sessions could be pulled to a court case without the counselor or the client being aware (Johnson, 2017).

In addition, it is always important to check state licensure boards and laws pertaining to any kind of service provided to a client. It is stated in Ethical, Legal, and Professional Issues in Counseling:

Most state counseling boards require that the counselor who is rendering distance counseling services in the state be licensed in that state. After reviewing licensure board rules for professional counselors, marriage and family therapists, psychologists, and social workers, Haberstroh, Barney, Foster, and Duffey (2014) found no rules prohibiting distance counseling and determined that all of the reviewed professions’ rules were comparable in addressing online counseling (Remley & Herlihy, 2016).

Conclusion

In conclusion, online counseling is rapidly developing. As counselors, it is our job to continue to expand our competence as the profession grows. Even if online counseling seems like an area of the profession that may not be of interest, it is still important to learn about the process and the legal and ethical guidelines involved. At this point, it seems well received by most counselors and clients.

Many counselors are recognizing that online counseling could be very beneficial for their clients. The ethical and legal implications behind the practice are encouraging counselors to be thorough and careful when engaging in online counseling. In any counseling situation, online or face-to-face, ethical and legal dilemmas will arise. It is crucial for the counselor to be aware of these and to be prepared when they happen. Thus, online counseling may not be of interest to all counselors, but it is in the best interest for all counselors to be mindful of each of these areas discussed and more.

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