ETHICAL AND LEGAL ISSUES OF SUICIDE
Nonmaleficence is the ethical principle addressing the counselor’s responsibility to “do no harm” including the removal of present harm and the prevention of future harm (Gladding, 2004). Of course, “harm” can be defined in a variety of ways.
For counselors, confidentiality is a foundational ethical standard. Confidentiality is the ethical duty to fulfill the promise that client information received during therapy will not be disclosed without authorization. As such, it follows that breaching confidentiality can result in “harm” to the counseling relationship and subsequently the client. Confidentiality is addressed in Section B of the Ethical Standards of the American Counseling Association Section B.1.a speaks to respect for client privacy. “Confidentiality becomes a legal as well as an ethical concern if it is broken, whether intentionally or not” (Gladding, 2004).
Because confidentiality is such a critical issue within counseling, exceptions to confidentiality must also be heavily considered. What if not breaking confidentiality leads to “harm”?
Section B.1.c. outlines the exceptions to confidentiality including the fact that confidentiality does not apply “when disclosure is required to prevent clear and imminent danger to the client….” This exemption was written with the suicidal client in mind, clarifying that counselors have a duty to protect client from harm and that this supersedes the harm that may happen due to a breach of confidentiality.
The complexities surrounding confidentiality are brought to the forefront when dealing with a suicidal – or potentially suicidal – client. Any decision to breach confidentiality should be made with careful consideration. The difficulty in making a decision, even in cases of suicide risk, lays in assessing “clear and imminent danger.”
“Determining that a client is at risk of committing suicide leads to actions that can be exceptionally disruptive to the client’s life. Just as counselors can be accused of malpractice for neglecting to take action to prevent harm when a client is determined to be suicidal, counselors also can be accused of wrongdoing if they overreact and precipitously take actions that violate a client’s privacy or freedom when there is no basis for doing so” (Remley & Herlihy, 2001).
Negligence results from some type of wrongful action committed by one person, which results in “injury” to another person. As a general legal principle, a court must find the following four to be true:
1) A duty was owed by the counselor to the client
2) The duty owed was breached
3) There is sufficient legal causal connection between the breach of duty and the client’s injury
4) Some injury or damages were suffered by the client
With regard to the first issue, counselors have a duty to take steps to prevent client suicide. “Counselors have established themselves as mental health professionals, and the law imposes on counselors practicing in all settings the responsibility of knowing how to accurately determine a client’s risk for suicide” (Remley & Herlihy, 2001). It is not required that counselors always be correct in making their assessments of suicide risk, but they need to operate from an informed position and “fulfill their professional obligations to a client in a manner comparable to what other reasonable counselors operating in a similar situation would have done” (Remley & Herlihy, 2001).
The following are considered reasonable duty for counselors in terms of suicide prevention (Remley & Herlihy, 2001):
- Counselors must know how to make assessments of a client’s risk for suicide and must be able to defend their decisions
- When a decision is made that the client is a danger to self, counselors must take whatever steps are necessary to prevent the harm
- Actions to prevent harm must be the least intrusive to accomplish that result
Brems (2000) summarized the following questions related to negligence:
1) Was the counselor aware or should have been aware of the risk?
2) Was the counselor thorough in assessment of the client’s suicide risk?
3) Did the counselor make “reasonable and prudent efforts” to collect sufficient and necessary data to assess risk?
4) Were the assessment data misused, thus leading to a misdiagnosis where the same data would have resulted in appropriate diagnosis by another mental health professional?
5) Did the counselor mismanage the case, being either “unavailable or unresponsive to the client’s emergency situation?”
6) Was the counselor negligent in the way she or he designed her or his intervention with the client after assessing risk?
7) Did the counselor make adequate attempts to keep the client safe (i.e., set up a plan of contingencies with appropriate resources, phone numbers, etc)?
8) Did the counselor remove the means to be used by the client in the suicide attempt?
9) In cases of minors, were parents or caretakers informed of the client’s potential risk?
What can counselors do to protect themselves and subsequently their clients?
- Counselors should inform clients of the limitations of confidentiality through standard “informed consent” procedures.
- Counselors should begin their study of suicide assessment prevention early and continue to stay current through professional development activities regarding suicide and crisis intervention and ethical/legal issues in counseling (Laux, 2002)
- Counselors should be familiar with suicide risk factors , procedures for suicide assessment, and guidelines for intervention (Brem, 2000)
- Counselors should abide by the standard of practice to consult with other mental health professionals to aid in assessing for suicide risk and interventions. It is important to look for consensus and follow the advice in making decisions (Remley & Herlihy, 2001)
- Counselors must properly document the process of suicide assessment and intervention through case notes and reports (Brem, 2000)
As reported by Brems (2000), “as long as mental health and health professionals have been able to show prudent and responsible care (through assessment of risk and tailored intervention planning), the courts have tended to rule in favor of the practitioner” (p. 166).
Freemouw, Perczel, & Ellis (1990) note, “Any therapist, regardless of how competent, successful, and skilled, may lose a client through suicide. What will distinguish this therapist from another who was clearly negligent, careless, and indifferent to her or his client’s suicidal state is the presence of a well-documented, thorough client record” (P. 10).
Special Considerations for Minor Clients
The issue of confidentiality for minor clients is complex. While counselors are encouraged to maintain the confidentiality of minors in the same way as adults, legally, parent’s rights to information about their children override the counselor ethical obligation of confidentiality in most cases. This is due, in part, to the fact that minors are not seen as competent to give “informed consent” and therefore this power belongs to parents.
For counselors working with minor clients (including, but not limited to, school counselors), it is recommended that you become familiar with ethical and legal issues related to counseling children and adolescents.
With regard to suicide prevention and intervention, it is typically best practice to make parents/guardians aware of suicide risk for their children. Technically, the professional counselor’s legal liability ends when parents have been notified that their child is at risk for suicide and prevention actions have been recommended (Remley & Sparkman, 1993).
However, considerations as to whether this is in the ultimate best interest of the child remain fundamental (for instance, if the child sites his/her relationship with parents as a factor in the decision to attempt suicide).
In addition, counselors have an obligation to follow up with a child, if parents or other significant others fail to act on prevention recommendations.
In the vast majority of cases, it will be necessary to inform parents of the child’s risk for suicide. How effectively this is done takes forethought and intention.
Proactively taking similar steps with minor clients that you would take with adults (informed consent, involving them in as much decision-making as possible, following up and supporting parents/guardians) are important steps in this process.