COUN226 Lecture 5: Week 5 Lecture
19 May 2018
School
Department
Course
Professor
COUN226 Ethical & Professional Issues in Counselling
Lecture 5 – Client Rights & Counsellor Responsibilities
• Law in Australia
• Informed Consent
• Malpractice
• Record Keeping
• Legislation
• Risk Management
• Online Counselling
• Children and Adolescents
Law in Australia
Establishment of Law
• Australian laws are established in three ways:
–Parliamentary legislation
–Judicial Precedent/Common Law
–Bureaucracy (regulations)
• Hierarchy of Courts:
–Magistrates Court
–County/District Court
–Supreme Court (State)
–High Court (Federal)
Major Types of Law
• Criminal Law
–Concerned with crimes/criminal offences
–Punishes wrongs by an individual
–Criminal Proceedings are brought about by the Crown (State) against
the accused
–Results in punishment (imprisonment/fine) for a crime against the
Crown
• Civil Law
–Law which is not related to crime
–Protects the rights of individuals
–Brought about by the plaintiff (aggrieved party) against the
defendant
–Results in monetary damages (compensation) for an infringement of
a legal right against the plaintiff
Queensland Civil & Administrative Tribunal (QCAT)
• Deals with disputes about: –Discrimination
–Building
–Children and young people
–Consumer & trade
–Debt
–Guardianship for adults
–Minor civil disputes
–Occupational regulation
• Disciplinary proceedings and licensing decisions for health
practitioners (and many other professions)
–Residential tenancy
• Queensland Mental Health Review Tribunal (not part of QCAT)
–Established under the Mental Health Act 2000
–Protects rights of people receiving involuntary treatment for mental
illness
Civil Wrongs - Contracts
• Contracts: Agreements between 2 or more parties which can be enforced
by law
–Express: terms are spelt out in detail
–Oral contract: may be just as binding as a written one provided it can
be proven
–Implied: terms are implied from the conduct of the parties or the
custom usually adopted in such transactions (normal procedure)
When the client enters into a consultation with a counsellor, the relationship
brings into existence an implied contract
The counsellor impliedly promises to:
- Treat the client with care & skill
- Respect the professional confidence
The client impliedly promises to pay the practitioner a fee in return
Civil Wrongs - Torts
• Infringement of an individual’s legal rights (can arise independent of any
contract)
• Aim is to compensate those who have suffered harm through violation of
their rights by the conduct of others
• Defendant punished by payment of monetary damages (rather than
conviction and imprisonment/fine)
• Examples of torts:
–Negligence
–Trespass
–Defamation
Torts - Negligence
• To succeed in a malpractice claim, four things have to be proven for a case
of negligence to be established:
1) Duty Of Care - that a duty of care existed
2) Breach Of Duty Of Care - that an action or omission by the
defendant breached the duty of care
3) Damage (Injury) - must have occurred from the breaching of the
duty of care
4) Causation or proximate cause - it must be proven that the damage
(injury) that occurred was caused by the breach of the duty of care
Torts – Negligence: Duty of Care
• The counsellor has a duty of care to their client from the time of accepting
them for treatment
–May exist from the time a potential client phones asking for advice
as to whether you can treat their condition
• Breach of Duty of Care: when a level of professional knowledge skill and
care expected of a reasonable qualified professional in that discipline fails to
be provided
• A duty of care to the world at large is not owed by health professional - it is
necessary to establish some type of legal relationship
Torts – Trespass
• Three types of trespass:
–To goods
–To property
–To a person
Trespass to a person:
• Assault: the apprehension/expectation of force being used against an
individual
–e.g someone verbally threatens to cause physical harm to another
• Battery: - even the slightest touching of a person against their will
• False Imprisonment: restraint of an individual against their will without
lawful justification
–Ability for the client to leave the premises when ever they wish to
–Client must be aware of this
–Possible exception is where a patient may be a danger to themselves
or others
Torts - Defamation
• Making a statement against another person to others:
–That will bring that person into ridicule or contempt or
–Which causes others to avoid him/her or
–Causes injury to his/her profession or trade
• Common law divides defamation into libel and slander.
–Libel: defamation by written matter, T.V., radio, film
–Slander: making a verbal statement which discredits an individual so
that loss or damage results
Informed Consent
Informed Consent
• Involves the right of clients to be informed about their therapy and to
make autonomous decisions pertaining to it
• Consent must be freely given and may be obtained:
–Orally or
–In writing or
–Be implied
Involves full disclosure by the practitioner of the relevant issues •
A shared decision-making process
–Goals of therapy
•
• Requires that the client understands the information presented, gives
consent voluntarily, and is competent to give consent to treatment
• Process that continues for the duration of the professional relationship as
issues and questions arise
Content of Informed Consent
When educating clients about informed consent, the following information
should be provided and discussed:
• The therapeutic process
• Background of therapist
• Costs involved in therapy
• The length of therapy and termination
• Consultation with colleagues
• Interruptions in therapy
• Clients’ right of access to their files
• The nature and purpose of confidentiality
• Benefits and risks of treatment
• Alternatives to traditional therapy
• Audio-recording or videotaping sessions
Malpractice
Reasons for Malpractice Suits
Unhealthy transference relationships •
Sexual misconduct with a client •
Failure to control a dangerous client •
Repressed or false memory •
• Failure to obtain or document informed consent
• Client abandonment or premature termination
• Marked departures from established therapeutic practices
Practicing beyond the scope of competency •
Crisis intervention •
Health Quality & Complaints Commission
• All States and Territories have legislation enabling dissatisfied health care
consumers to register a complaint against a health care provider
• HQCC investigates complaints against registered or non-registered health
practitioners in QLD
• Can also lodge complaint with an association where the counsellor is a
member (e.g., QCA) or PACFA
Record Keeping
Record Keeping
• Has a number of purposes:
–From a clinical perspective, record keeping provides a history that a
therapist can use in reviewing the course of treatment
–From an ethical perspective, records can assist practitioners in
providing quality care to their client
–From a legal perspective, state or federal law may require keeping a
record
• Detailed clinical records can provide a defense against
malpractice
• For professional in demnity insurance purposes
–From a risk management perspective, keeping adequate records is
the standard of care
–From a business perspective may form part of the contract between
counsellor and client
Access to Records
• Client records may be read by persons other than the practitioner:
–Client
–Other party in the context of litigation
• Prior to releasing records in the case of litigation, take advice from the
lawyers employed by your agency or professional association (if in private
practice)
Client Record Content
• Identifying data
• Fees and billing information
• Documentation of informed consent
• Documentation of waivers of confidentiality • Presenting complaint and
diagnosis
• Plan for services
• Client reactions to professional interventions
• Current risk factors pertaining to danger to self or others
• Plans for future interventions
• Assess mentor summary information
• Consultations with or referrals to other professionals
• Relevant cultural and sociopolitical factors
Record Keeping
• Adhere to the following principles in compiling client records:
–Keep records up to date
–Don’t enter/sign any entry on behalf of another practitioner
–Records should be legible, written in ink, and in English
–Do not skip lines or leave spaces
–Don’t squeeze in notes
–Do not erase or whiteout – strike out then initial and date any
changes
–Be brief, accurate and complete
–Keep records of subjective responses of clients
–Avoid value judgments and conclusions
–Contain only readily understood abbreviations
–Record client non-compliance
–Avoid any comment that could be embarrassing for the practitioner
or client
Clinical Record Keeping in QLD
• Queensland Government Health Sector (Clinical Records) Retention and
Disposal Schedule
• Regulates the collection and handling of health information
• Creates a framework to protect the privacy of individuals' health
information
• Adults:Retainfor10yearsafterlastclientserviceor legal action
• MentalhealthfacilityclinicalrecordsatQH:85years from client’s DOB & 10
years after last client service
Clinical Record Keeping in QLD
• Minors:
–Retain for 10 years after last client service/legal action or –Retain
until 10 years past their 18th birthday
–Whichever is longer
• Store in:
–Lockable, fireproof cabinet or
–Password protected computer with offsite backup
• If in private practice, nominate another professional to take responsibility
for your clinical case notes should you die or become incapacitated
Legislation
Legislation – Psychologists and Counsellors
• A number of areas of legislation are relevant to
professional practice:
–Health
–Social Services
–Fair Trading
–Anti-Discrimination
–Employment
–Privacy
–Tax and GST
Scope of Practice
• Professional Registration Acts define a profession’s scope of practice
• Psychologist national registration with Psychology Board of Australia
• Offence for unregistered persons:
–Undertaking those activities or
–Holding themselves out as registered practitioners
• Advertising, marketing, signage and literature should avoid any suggestion
that a practitioner is a medical doctor or other registered practitioner
Risk Management
Risk Management
• The practice of focusing on the identification, evaluation, and treatment of
problems that may injure clients and lead to filing an ethics complaint or a
malpractice action
• One of the best precautions against malpractice is personal and
professional honesty and openness with clients
• Know your limitations and remain open to seeking consultation in difficult
cases
• Remain alert for possible misunderstandings that, if not recognized or
poorly handled, could lead to a therapeutic break or premature termination
of therapy
Online Counselling
Online Counselling
• Reaching clients who may not participate in face-to- face therapy
• Improving client access in rural areas
• Increasing flexibility in scheduling
• Facilitating assigning and completing of client homework
Augmenting a problem-solving approach •
Enhancing the provision of referral services •
Disadvantages of Online Counselling
• Danger of making an inaccurate assessment
• Compromising of confidentiality and privacy
• Problems involved in being able to protect suicidal clients
• Difficulties in attending to clients who are in crisis situations
• Absence of traditional client-therapist relationship
• Inability to address a range of more complex psychological problems
Suggestions for Online Counselling
• Before offering distance counselling, acquire the appropriate competencies
related to this evolving specialty
• Learn how to adapt traditional methods for effective application to
distance counselling
• Screen clients for suitability with respect to the specific distance services
you are considering using
Suggestions for Online Counselling
• As a part of informed consent, educate your clients about the difficult
situations that may occur during distance counselling
• Familiarize yourself with the ethical guidelines that have been developed
to inform your specific scope of practice
• Be aware of the legal issues and regulatory policies that govern your
specific practices when delivering online counselling
Children & Adolescents
Working With Children & Adolescents
• Important issues to consider:
▫ Developmental level
▫ Minors’ rights regarding informed consent (see next 2 slides)
▫ Parental rights to information about minor’s treatment
▫ Minors’ assent versus consent
▫ Involving parents in counselling process with minors
▫ Limits to confidentiality
• Can be trust issues if it is believed the counsellor is siding with parents and
teachers
Minor’s rights regarding informed consent
• Capacity to give informed consent when “he or she achieves a sufficient
understanding and intelligence to enable him or her to understand fully
what is proposed” (Australian High Court)
• Determine whether the young person
• can understand the nature of the proposed therapy
Can understand the benefits and risks of therapy •
Can understand the consequences of receiving or not receiving the •
proposed treatment
Has the capacity to make an informed choice •
Can understand the limits to confidentiality •
Minor’s rights regarding informed consent Factors used to determine
competency:
–Child’s ability to understand the current issues and circumstances
–The child’s maturity
–Degree of autonomy
–Type and sensitivity of information involved
–The amount of time spent reflecting on decisions to be made
–Awareness regarding details of the problem situation
–The degree to which the child actively attempts to acquire
information on decisions to be made
Police Check
• PoliceChecks identify and release relevant criminal history information
relating to:
–Convictions
–Findings of guilt
–Pending court proceedings
• Due to spent conviction/non-disclosure legislation and information release
policies, there are limitations on the information a Police Check can provide
–e.g., the Spent Convictions Scheme stipulates that prior convictions
are not to be disclosed where 10 years have passed from the date of
the conviction
Working With Children Check in QLD
• Commission for Children and Young People and Child Guardian Act 2000
requires that people who work or volunteer in child- related work pass a
Working with Children check (Blue card):
–Helps to protect children under 18 years of age from harm • Ongoing
checking of a person’s criminal record while the
person’s Blue card is valid
• Detailed national check of applicant’s:
–Criminal history (charges, convictions)
–Disciplinary information help by certain profess
Week 5 Lecture
Wednesday, 28 March 2018
11:07 PM
COUN226 Ethical & Professional Issues in Counselling
Lecture 5 – Client Rights & Counsellor Responsibilities
• Law in Australia
• Informed Consent
• Malpractice
• Record Keeping
• Legislation
• Risk Management
• Online Counselling
• Children and Adolescents
Law in Australia
Establishment of Law
• Australian laws are established in three ways:
–Parliamentary legislation
–Judicial Precedent/Common Law
–Bureaucracy (regulations)
• Hierarchy of Courts:
–Magistrates Court
–County/District Court
–Supreme Court (State)
–High Court (Federal)
Major Types of Law
• Criminal Law
–Concerned with crimes/criminal offences
–Punishes wrongs by an individual
–Criminal Proceedings are brought about by the Crown (State) against
the accused
–Results in punishment (imprisonment/fine) for a crime against the
Crown
• Civil Law
–Law which is not related to crime
–Protects the rights of individuals
–Brought about by the plaintiff (aggrieved party) against the
defendant
–Results in monetary damages (compensation) for an infringement of
a legal right against the plaintiff
Queensland Civil & Administrative Tribunal (QCAT)
• Deals with disputes about: –Discrimination
–Building
–Children and young people
–Consumer & trade
–Debt
–Guardianship for adults
–Minor civil disputes
–Occupational regulation
• Disciplinary proceedings and licensing decisions for health
practitioners (and many other professions)
–Residential tenancy
• Queensland Mental Health Review Tribunal (not part of QCAT)
–Established under the Mental Health Act 2000
–Protects rights of people receiving involuntary treatment for mental
illness
Civil Wrongs - Contracts
• Contracts: Agreements between 2 or more parties which can be enforced
by law
–Express: terms are spelt out in detail
–Oral contract: may be just as binding as a written one provided it can
be proven
–Implied: terms are implied from the conduct of the parties or the
custom usually adopted in such transactions (normal procedure)
When the client enters into a consultation with a counsellor, the relationship
brings into existence an implied contract
The counsellor impliedly promises to:
- Treat the client with care & skill
- Respect the professional confidence
The client impliedly promises to pay the practitioner a fee in return
Civil Wrongs - Torts
• Infringement of an individual’s legal rights (can arise independent of any
contract)
• Aim is to compensate those who have suffered harm through violation of
their rights by the conduct of others
• Defendant punished by payment of monetary damages (rather than
conviction and imprisonment/fine)
• Examples of torts:
–Negligence
–Trespass
–Defamation
Torts - Negligence
• To succeed in a malpractice claim, four things have to be proven for a case
of negligence to be established:
1) Duty Of Care - that a duty of care existed
2) Breach Of Duty Of Care - that an action or omission by the
defendant breached the duty of care
3) Damage (Injury) - must have occurred from the breaching of the
duty of care
4) Causation or proximate cause - it must be proven that the damage
(injury) that occurred was caused by the breach of the duty of care
Torts – Negligence: Duty of Care
• The counsellor has a duty of care to their client from the time of accepting
them for treatment
–May exist from the time a potential client phones asking for advice
as to whether you can treat their condition
• Breach of Duty of Care: when a level of professional knowledge skill and
care expected of a reasonable qualified professional in that discipline fails to
be provided
• A duty of care to the world at large is not owed by health professional - it is
necessary to establish some type of legal relationship
Torts – Trespass
• Three types of trespass:
–To goods
–To property
–To a person
Trespass to a person:
• Assault: the apprehension/expectation of force being used against an
individual
–e.g someone verbally threatens to cause physical harm to another
• Battery: - even the slightest touching of a person against their will
• False Imprisonment: restraint of an individual against their will without
lawful justification
–Ability for the client to leave the premises when ever they wish to
–Client must be aware of this
–Possible exception is where a patient may be a danger to themselves
or others
Torts - Defamation
• Making a statement against another person to others:
–That will bring that person into ridicule or contempt or
–Which causes others to avoid him/her or
–Causes injury to his/her profession or trade
• Common law divides defamation into libel and slander.
–Libel: defamation by written matter, T.V., radio, film
–Slander: making a verbal statement which discredits an individual so
that loss or damage results
Informed Consent
Informed Consent
• Involves the right of clients to be informed about their therapy and to
make autonomous decisions pertaining to it
• Consent must be freely given and may be obtained:
–Orally or
–In writing or
–Be implied
Involves full disclosure by the practitioner of the relevant issues •
A shared decision-making process
–Goals of therapy
•
• Requires that the client understands the information presented, gives
consent voluntarily, and is competent to give consent to treatment
• Process that continues for the duration of the professional relationship as
issues and questions arise
Content of Informed Consent
When educating clients about informed consent, the following information
should be provided and discussed:
• The therapeutic process
• Background of therapist
• Costs involved in therapy
• The length of therapy and termination
• Consultation with colleagues
• Interruptions in therapy
• Clients’ right of access to their files
• The nature and purpose of confidentiality
• Benefits and risks of treatment
• Alternatives to traditional therapy
• Audio-recording or videotaping sessions
Malpractice
Reasons for Malpractice Suits
Unhealthy transference relationships •
Sexual misconduct with a client •
Failure to control a dangerous client •
Repressed or false memory •
• Failure to obtain or document informed consent
• Client abandonment or premature termination
• Marked departures from established therapeutic practices
Practicing beyond the scope of competency •
Crisis intervention •
Health Quality & Complaints Commission
• All States and Territories have legislation enabling dissatisfied health care
consumers to register a complaint against a health care provider
• HQCC investigates complaints against registered or non-registered health
practitioners in QLD
• Can also lodge complaint with an association where the counsellor is a
member (e.g., QCA) or PACFA
Record Keeping
Record Keeping
• Has a number of purposes:
–From a clinical perspective, record keeping provides a history that a
therapist can use in reviewing the course of treatment
–From an ethical perspective, records can assist practitioners in
providing quality care to their client
–From a legal perspective, state or federal law may require keeping a
record
• Detailed clinical records can provide a defense against
malpractice
• For professional in demnity insurance purposes
–From a risk management perspective, keeping adequate records is
the standard of care
–From a business perspective may form part of the contract between
counsellor and client
Access to Records
• Client records may be read by persons other than the practitioner:
–Client
–Other party in the context of litigation
• Prior to releasing records in the case of litigation, take advice from the
lawyers employed by your agency or professional association (if in private
practice)
Client Record Content
• Identifying data
• Fees and billing information
• Documentation of informed consent
• Documentation of waivers of confidentiality • Presenting complaint and
diagnosis
• Plan for services
• Client reactions to professional interventions
• Current risk factors pertaining to danger to self or others
• Plans for future interventions
• Assess mentor summary information
• Consultations with or referrals to other professionals
• Relevant cultural and sociopolitical factors
Record Keeping
• Adhere to the following principles in compiling client records:
–Keep records up to date
–Don’t enter/sign any entry on behalf of another practitioner
–Records should be legible, written in ink, and in English
–Do not skip lines or leave spaces
–Don’t squeeze in notes
–Do not erase or whiteout – strike out then initial and date any
changes
–Be brief, accurate and complete
–Keep records of subjective responses of clients
–Avoid value judgments and conclusions
–Contain only readily understood abbreviations
–Record client non-compliance
–Avoid any comment that could be embarrassing for the practitioner
or client
Clinical Record Keeping in QLD
• Queensland Government Health Sector (Clinical Records) Retention and
Disposal Schedule
• Regulates the collection and handling of health information
• Creates a framework to protect the privacy of individuals' health
information
• Adults:Retainfor10yearsafterlastclientserviceor legal action
• MentalhealthfacilityclinicalrecordsatQH:85years from client’s DOB & 10
years after last client service
Clinical Record Keeping in QLD
• Minors:
–Retain for 10 years after last client service/legal action or –Retain
until 10 years past their 18th birthday
–Whichever is longer
• Store in:
–Lockable, fireproof cabinet or
–Password protected computer with offsite backup
• If in private practice, nominate another professional to take responsibility
for your clinical case notes should you die or become incapacitated
Legislation
Legislation – Psychologists and Counsellors
• A number of areas of legislation are relevant to
professional practice:
–Health
–Social Services
–Fair Trading
–Anti-Discrimination
–Employment
–Privacy
–Tax and GST
Scope of Practice
• Professional Registration Acts define a profession’s scope of practice
• Psychologist national registration with Psychology Board of Australia
• Offence for unregistered persons:
–Undertaking those activities or
–Holding themselves out as registered practitioners
• Advertising, marketing, signage and literature should avoid any suggestion
that a practitioner is a medical doctor or other registered practitioner
Risk Management
Risk Management
• The practice of focusing on the identification, evaluation, and treatment of
problems that may injure clients and lead to filing an ethics complaint or a
malpractice action
• One of the best precautions against malpractice is personal and
professional honesty and openness with clients
• Know your limitations and remain open to seeking consultation in difficult
cases
• Remain alert for possible misunderstandings that, if not recognized or
poorly handled, could lead to a therapeutic break or premature termination
of therapy
Online Counselling
Online Counselling
• Reaching clients who may not participate in face-to- face therapy
• Improving client access in rural areas
• Increasing flexibility in scheduling
• Facilitating assigning and completing of client homework
Augmenting a problem-solving approach •
Enhancing the provision of referral services •
Disadvantages of Online Counselling
• Danger of making an inaccurate assessment
• Compromising of confidentiality and privacy
• Problems involved in being able to protect suicidal clients
• Difficulties in attending to clients who are in crisis situations
• Absence of traditional client-therapist relationship
• Inability to address a range of more complex psychological problems
Suggestions for Online Counselling
• Before offering distance counselling, acquire the appropriate competencies
related to this evolving specialty
• Learn how to adapt traditional methods for effective application to
distance counselling
• Screen clients for suitability with respect to the specific distance services
you are considering using
Suggestions for Online Counselling
• As a part of informed consent, educate your clients about the difficult
situations that may occur during distance counselling
• Familiarize yourself with the ethical guidelines that have been developed
to inform your specific scope of practice
• Be aware of the legal issues and regulatory policies that govern your
specific practices when delivering online counselling
Children & Adolescents
Working With Children & Adolescents
• Important issues to consider:
▫ Developmental level
▫ Minors’ rights regarding informed consent (see next 2 slides)
▫ Parental rights to information about minor’s treatment
▫ Minors’ assent versus consent
▫ Involving parents in counselling process with minors
▫ Limits to confidentiality
• Can be trust issues if it is believed the counsellor is siding with parents and
teachers
Minor’s rights regarding informed consent
• Capacity to give informed consent when “he or she achieves a sufficient
understanding and intelligence to enable him or her to understand fully
what is proposed” (Australian High Court)
• Determine whether the young person
• can understand the nature of the proposed therapy
Can understand the benefits and risks of therapy •
Can understand the consequences of receiving or not receiving the •
proposed treatment
Has the capacity to make an informed choice •
Can understand the limits to confidentiality •
Minor’s rights regarding informed consent Factors used to determine
competency:
–Child’s ability to understand the current issues and circumstances
–The child’s maturity
–Degree of autonomy
–Type and sensitivity of information involved
–The amount of time spent reflecting on decisions to be made
–Awareness regarding details of the problem situation
–The degree to which the child actively attempts to acquire
information on decisions to be made
Police Check
• PoliceChecks identify and release relevant criminal history information
relating to:
–Convictions
–Findings of guilt
–Pending court proceedings
• Due to spent conviction/non-disclosure legislation and information release
policies, there are limitations on the information a Police Check can provide
–e.g., the Spent Convictions Scheme stipulates that prior convictions
are not to be disclosed where 10 years have passed from the date of
the conviction
Working With Children Check in QLD
• Commission for Children and Young People and Child Guardian Act 2000
requires that people who work or volunteer in child- related work pass a
Working with Children check (Blue card):
–Helps to protect children under 18 years of age from harm • Ongoing
checking of a person’s criminal record while the
person’s Blue card is valid
• Detailed national check of applicant’s:
–Criminal history (charges, convictions)
–Disciplinary information help by certain profess
Week 5 Lecture
Wednesday, 28 March 2018
11:07 PM
COUN226 Ethical & Professional Issues in Counselling
Lecture 5 – Client Rights & Counsellor Responsibilities
• Law in Australia
• Informed Consent
• Malpractice
• Record Keeping
• Legislation
• Risk Management
• Online Counselling
• Children and Adolescents
Law in Australia
Establishment of Law
• Australian laws are established in three ways:
–Parliamentary legislation
–Judicial Precedent/Common Law
–Bureaucracy (regulations)
• Hierarchy of Courts:
–Magistrates Court
–County/District Court
–Supreme Court (State)
–High Court (Federal)
Major Types of Law
• Criminal Law
–Concerned with crimes/criminal offences
–Punishes wrongs by an individual
–Criminal Proceedings are brought about by the Crown (State) against
the accused
–Results in punishment (imprisonment/fine) for a crime against the
Crown
• Civil Law
–Law which is not related to crime
–Protects the rights of individuals
–Brought about by the plaintiff (aggrieved party) against the
defendant
–Results in monetary damages (compensation) for an infringement of
a legal right against the plaintiff
Queensland Civil & Administrative Tribunal (QCAT)
• Deals with disputes about: –Discrimination
–Building
–Children and young people
–Consumer & trade
–Debt
–Guardianship for adults
–Minor civil disputes
–Occupational regulation
• Disciplinary proceedings and licensing decisions for health
practitioners (and many other professions)
–Residential tenancy
• Queensland Mental Health Review Tribunal (not part of QCAT)
–Established under the Mental Health Act 2000
–Protects rights of people receiving involuntary treatment for mental
illness
Civil Wrongs - Contracts
• Contracts: Agreements between 2 or more parties which can be enforced
by law
–Express: terms are spelt out in detail
–Oral contract: may be just as binding as a written one provided it can
be proven
–Implied: terms are implied from the conduct of the parties or the
custom usually adopted in such transactions (normal procedure)
When the client enters into a consultation with a counsellor, the relationship
brings into existence an implied contract
The counsellor impliedly promises to:
- Treat the client with care & skill
- Respect the professional confidence
The client impliedly promises to pay the practitioner a fee in return
Civil Wrongs - Torts
• Infringement of an individual’s legal rights (can arise independent of any
contract)
• Aim is to compensate those who have suffered harm through violation of
their rights by the conduct of others
• Defendant punished by payment of monetary damages (rather than
conviction and imprisonment/fine)
• Examples of torts:
–Negligence
–Trespass
–Defamation
Torts - Negligence
• To succeed in a malpractice claim, four things have to be proven for a case
of negligence to be established:
1) Duty Of Care - that a duty of care existed
2) Breach Of Duty Of Care - that an action or omission by the
defendant breached the duty of care
3) Damage (Injury) - must have occurred from the breaching of the
duty of care
4) Causation or proximate cause - it must be proven that the damage
(injury) that occurred was caused by the breach of the duty of care
Torts – Negligence: Duty of Care
• The counsellor has a duty of care to their client from the time of accepting
them for treatment
–May exist from the time a potential client phones asking for advice
as to whether you can treat their condition
• Breach of Duty of Care: when a level of professional knowledge skill and
care expected of a reasonable qualified professional in that discipline fails to
be provided
• A duty of care to the world at large is not owed by health professional - it is
necessary to establish some type of legal relationship
Torts – Trespass
• Three types of trespass:
–To goods
–To property
–To a person
Trespass to a person:
• Assault: the apprehension/expectation of force being used against an
individual
–e.g someone verbally threatens to cause physical harm to another
• Battery: - even the slightest touching of a person against their will
• False Imprisonment: restraint of an individual against their will without
lawful justification
–Ability for the client to leave the premises when ever they wish to
–Client must be aware of this
–Possible exception is where a patient may be a danger to themselves
or others
Torts - Defamation
• Making a statement against another person to others:
–That will bring that person into ridicule or contempt or
–Which causes others to avoid him/her or
–Causes injury to his/her profession or trade
• Common law divides defamation into libel and slander.
–Libel: defamation by written matter, T.V., radio, film
–Slander: making a verbal statement which discredits an individual so
that loss or damage results
Informed Consent
Informed Consent
• Involves the right of clients to be informed about their therapy and to
make autonomous decisions pertaining to it
• Consent must be freely given and may be obtained:
–Orally or
–In writing or
–Be implied
Involves full disclosure by the practitioner of the relevant issues •
A shared decision-making process
–Goals of therapy
•
• Requires that the client understands the information presented, gives
consent voluntarily, and is competent to give consent to treatment
• Process that continues for the duration of the professional relationship as
issues and questions arise
Content of Informed Consent
When educating clients about informed consent, the following information
should be provided and discussed:
• The therapeutic process
• Background of therapist
• Costs involved in therapy
• The length of therapy and termination
• Consultation with colleagues
• Interruptions in therapy
• Clients’ right of access to their files
• The nature and purpose of confidentiality
• Benefits and risks of treatment
• Alternatives to traditional therapy
• Audio-recording or videotaping sessions
Malpractice
Reasons for Malpractice Suits
Unhealthy transference relationships •
Sexual misconduct with a client •
Failure to control a dangerous client •
Repressed or false memory •
• Failure to obtain or document informed consent
• Client abandonment or premature termination
• Marked departures from established therapeutic practices
Practicing beyond the scope of competency •
Crisis intervention •
Health Quality & Complaints Commission
• All States and Territories have legislation enabling dissatisfied health care
consumers to register a complaint against a health care provider
• HQCC investigates complaints against registered or non-registered health
practitioners in QLD
• Can also lodge complaint with an association where the counsellor is a
member (e.g., QCA) or PACFA
Record Keeping
Record Keeping
• Has a number of purposes:
–From a clinical perspective, record keeping provides a history that a
therapist can use in reviewing the course of treatment
–From an ethical perspective, records can assist practitioners in
providing quality care to their client
–From a legal perspective, state or federal law may require keeping a
record
• Detailed clinical records can provide a defense against
malpractice
• For professional in demnity insurance purposes
–From a risk management perspective, keeping adequate records is
the standard of care
–From a business perspective may form part of the contract between
counsellor and client
Access to Records
• Client records may be read by persons other than the practitioner:
–Client
–Other party in the context of litigation
• Prior to releasing records in the case of litigation, take advice from the
lawyers employed by your agency or professional association (if in private
practice)
Client Record Content
• Identifying data
• Fees and billing information
• Documentation of informed consent
• Documentation of waivers of confidentiality • Presenting complaint and
diagnosis
• Plan for services
• Client reactions to professional interventions
• Current risk factors pertaining to danger to self or others
• Plans for future interventions
• Assess mentor summary information
• Consultations with or referrals to other professionals
• Relevant cultural and sociopolitical factors
Record Keeping
• Adhere to the following principles in compiling client records:
–Keep records up to date
–Don’t enter/sign any entry on behalf of another practitioner
–Records should be legible, written in ink, and in English
–Do not skip lines or leave spaces
–Don’t squeeze in notes
–Do not erase or whiteout – strike out then initial and date any
changes
–Be brief, accurate and complete
–Keep records of subjective responses of clients
–Avoid value judgments and conclusions
–Contain only readily understood abbreviations
–Record client non-compliance
–Avoid any comment that could be embarrassing for the practitioner
or client
Clinical Record Keeping in QLD
• Queensland Government Health Sector (Clinical Records) Retention and
Disposal Schedule
• Regulates the collection and handling of health information
• Creates a framework to protect the privacy of individuals' health
information
• Adults:Retainfor10yearsafterlastclientserviceor legal action
• MentalhealthfacilityclinicalrecordsatQH:85years from client’s DOB & 10
years after last client service
Clinical Record Keeping in QLD
• Minors:
–Retain for 10 years after last client service/legal action or –Retain
until 10 years past their 18th birthday
–Whichever is longer
• Store in:
–Lockable, fireproof cabinet or
–Password protected computer with offsite backup
• If in private practice, nominate another professional to take responsibility
for your clinical case notes should you die or become incapacitated
Legislation
Legislation – Psychologists and Counsellors
• A number of areas of legislation are relevant to
professional practice:
–Health
–Social Services
–Fair Trading
–Anti-Discrimination
–Employment
–Privacy
–Tax and GST
Scope of Practice
• Professional Registration Acts define a profession’s scope of practice
• Psychologist national registration with Psychology Board of Australia
• Offence for unregistered persons:
–Undertaking those activities or
–Holding themselves out as registered practitioners
• Advertising, marketing, signage and literature should avoid any suggestion
that a practitioner is a medical doctor or other registered practitioner
Risk Management
Risk Management
• The practice of focusing on the identification, evaluation, and treatment of
problems that may injure clients and lead to filing an ethics complaint or a
malpractice action
• One of the best precautions against malpractice is personal and
professional honesty and openness with clients
• Know your limitations and remain open to seeking consultation in difficult
cases
• Remain alert for possible misunderstandings that, if not recognized or
poorly handled, could lead to a therapeutic break or premature termination
of therapy
Online Counselling
Online Counselling
• Reaching clients who may not participate in face-to- face therapy
• Improving client access in rural areas
• Increasing flexibility in scheduling
• Facilitating assigning and completing of client homework
Augmenting a problem-solving approach •
Enhancing the provision of referral services •
Disadvantages of Online Counselling
• Danger of making an inaccurate assessment
• Compromising of confidentiality and privacy
• Problems involved in being able to protect suicidal clients
• Difficulties in attending to clients who are in crisis situations
• Absence of traditional client-therapist relationship
• Inability to address a range of more complex psychological problems
Suggestions for Online Counselling
• Before offering distance counselling, acquire the appropriate competencies
related to this evolving specialty
• Learn how to adapt traditional methods for effective application to
distance counselling
• Screen clients for suitability with respect to the specific distance services
you are considering using
Suggestions for Online Counselling
• As a part of informed consent, educate your clients about the difficult
situations that may occur during distance counselling
• Familiarize yourself with the ethical guidelines that have been developed
to inform your specific scope of practice
• Be aware of the legal issues and regulatory policies that govern your
specific practices when delivering online counselling
Children & Adolescents
Working With Children & Adolescents
• Important issues to consider:
▫ Developmental level
▫ Minors’ rights regarding informed consent (see next 2 slides)
▫ Parental rights to information about minor’s treatment
▫ Minors’ assent versus consent
▫ Involving parents in counselling process with minors
▫ Limits to confidentiality
• Can be trust issues if it is believed the counsellor is siding with parents and
teachers
Minor’s rights regarding informed consent
• Capacity to give informed consent when “he or she achieves a sufficient
understanding and intelligence to enable him or her to understand fully
what is proposed” (Australian High Court)
• Determine whether the young person
• can understand the nature of the proposed therapy
Can understand the benefits and risks of therapy •
Can understand the consequences of receiving or not receiving the •
proposed treatment
Has the capacity to make an informed choice •
Can understand the limits to confidentiality •
Minor’s rights regarding informed consent Factors used to determine
competency:
–Child’s ability to understand the current issues and circumstances
–The child’s maturity
–Degree of autonomy
–Type and sensitivity of information involved
–The amount of time spent reflecting on decisions to be made
–Awareness regarding details of the problem situation
–The degree to which the child actively attempts to acquire
information on decisions to be made
Police Check
• PoliceChecks identify and release relevant criminal history information
relating to:
–Convictions
–Findings of guilt
–Pending court proceedings
• Due to spent conviction/non-disclosure legislation and information release
policies, there are limitations on the information a Police Check can provide
–e.g., the Spent Convictions Scheme stipulates that prior convictions
are not to be disclosed where 10 years have passed from the date of
the conviction
Working With Children Check in QLD
• Commission for Children and Young People and Child Guardian Act 2000
requires that people who work or volunteer in child- related work pass a
Working with Children check (Blue card):
–Helps to protect children under 18 years of age from harm • Ongoing
checking of a person’s criminal record while the
person’s Blue card is valid
• Detailed national check of applicant’s:
–Criminal history (charges, convictions)
–Disciplinary information help by certain profess
Week 5 Lecture
Wednesday, 28 March 2018 11:07 PM
Document Summary
Lecture 5 client rights & counsellor responsibilities: law in australia, informed consent, malpractice, record keeping, legislation, risk management, online counselling, children and adolescents. Establishment of law: australian laws are established in three ways, hierarchy of courts: Criminal proceedings are brought about by the crown (state) against the accused. Results in punishment (imprisonment/fine) for a crime against the. Law which is not related to crime. Brought about by the plaintiff (aggrieved party) against the defendant. Results in monetary damages (compensation) for an infringement of a legal right against the plaintiff. Queensland civil & administrative tribunal (qcat: deals with disputes about: discrimination. Occupational regulation: disciplinary proceedings and licensing decisions for health practitioners (and many other professions, queensland mental health review tribunal (not part of qcat) Established under the mental health act 2000. Protects rights of people receiving involuntary treatment for mental illness. Civil wrongs - contracts: contracts: agreements between 2 or more parties which can be enforced by law.
