Lecture 10 legal issues across therapy settings

1. Lecture 10: Legal issues across
counselling settings
Law for Counsellors
Kevin Standish

2. Learning Outcomes
• To explore and articulate the various legal factors across a
range of settings:
• Private Practice
• Voluntary work
• Social Care Agencies
• Education
• NHS
• Pastoral Settings

3. Context: Ethics and Law

4. Awareness of Context
• Each context has its own specific perspectives of therapy practice.
• Policies, practice regulations, ethical principles and guidance all
operate in a general legal framework : civil and criminal law applies
equally to all practitioners and all aspects of our work
• It is important to understand how the law works in the context of
therapy practice.
• This requires a different understanding and awareness of how the
context of therapy impacts on how the civil and criminal law will
apply.
• There are common themes which apply across the context of
therapeutic workwhich you need to take into account with in specific
contexts as well.
• Each work situation is different, each client is unique, and there will
always be new, unusual and unexpected situations to challenge the
application of ethics and law

5. Private Practice
• Private practice is first and foremost regarded as a
business in terms of the law. It is not a vocation to help
others… this point of view will lead you into legal trouble
as well as leaving you bankrupt!
• You need to comply with all legal features of setting up a
business, insurance, tax et cetera
• Advertising your practice is regulated both in terms of the
law and that the BACP guidelines.
• Therapist running their own practice must ensure that their
practice is non-discriminatory.

6. Private practice

7. Private practice: contracts
• You will enter into many types of contracts as part of
running the business of counselling.
• Your therapeutic and business contract needs to be clearly
defined
• This is important in terms of fees for therapy and issues of
non-payment. No care agreement on fees may mean you
have no legally enforceable contract to claim non-payment.
• Please ensure contracts are in writing or you will have
difficulty enforcing these in the courts

8. Private practice: practice issues
• Currency of information and continuing professional
development: you need to keep up-to-date with ethics
Law policy and education relevant to therapeutic
practice
2. Assessment of what to charge for therapy services

9. Private practice: practice issues
• Missed appointments: many therapist struggled to find the right
approach to missed appointments particularly where the justification is
on good grounds: e.g. I was ill, stuck in traffic, the tube was on strike,
my child was ill, etc
• This is about self-respect and valuing ourselves and our time. A hide
and fast rule is simple to operate but may cause feelings of resentment
or unfairness
• A flexible rule can create issues regarding attendance and the payment
of counselling fee
• Issues such as the therapeutic relationship, patterns of behaviour,
frequency of missed sessions and their general attitude towards the
therapeutic process are all relevant in how you managed this important
issue

10. Voluntary work
• The definition of voluntary work is work for which no payment
is made.
• Payment for reasonable expenses and subsistence’s only
related to the voluntary work does not count in this definition.
Reasonable expenses include food, drink, travel and
accommodation expenses where appropriate
• Volunteers not seem to be employees because they do not
receive payment for their work. This has important legal and tax
implications
• Volunteers do not receive the same statutory rights in the
workplace as somebody employed: e.g. unfair dismissal, leave
entitlement, redundancy payment et cetera

11. • Volunteer agreements generally cover what their rights are
within the organisation
• These normally include: what supervision and support they
will get, what insurance cover is present, equal
opportunities, and how disagreements will be resolved
• Working as a therapist you will need to ensure that therapy
related matters covered in the volunteer contract
• the Melhuish V Redbridge citizens advice bureau (2005)
case set the law and conditions regarding volunteers
statutory implements and protections

12. Voluntary practice issues
• Clarity of role: often volunteers role poorly defined and the
written contracts and boundaries within the organisation.
• Issues of supervision: some organisations will supply
internal supervision on a one-to-one or through an internal
peer supervision group facilitated by a supervisor. This is
referred to as internal supervision.
• Due to the economic climate the provision of internal
supervision has diminished and many agencies rely on
volunteers to pay for their own supervision. Please clarify
with your placement what the position is

13. Social Care Agencies
• Social care agencies include all of those providing community
care for adult clients who are vulnerable, or with special needs,
mental illness or disability.
• The Health and Social Care Act (2001 and 2008) addresses the
key issues in regard to social care.
• This established the Commission for Healthcare audit and
inspection (CHAI)
• Some of the key elements in regard to this area of work relates
to: care and welfare of people; monitoring the quality of service
provision; safeguarding those who use the service from abuse;
capacity to consent to care and treatment; maintenance of
accurate records; and the role of support workers.

14. Social care agencies
Practice issues
• Disclosure of abuse
• Whistleblowing on bad practice
• Managing information between social care and other
contexts in particular confidentiality
• Information about third parties: therapist may receive
information from a client about a third party e.g. disclosing
information about another resident receiving abuse

15. Education
• Education refers to nursery schools, schools
(primary and senior) further education and
higher education environments
• Teachers role as being “in loco parentis” to
children in school: teachers are expected to
take the same care of their pupils as a
reasonable parent
• This is being replaced by the concept of a duty
of care
• Overall if you’re working with in a school
context you’re seen as an employee of the
school and all legal elements applicable to the
school apply to the therapist

16. Education
Practice issues
• Consent: consent for a child to receive counselling is required either from the child
if they have legal capacity (Gillick competence); or from those who have parental
responsibility for the child. This needs to be in writing!
• What if they refuse to allow counselling in school: this is where the Gillick
competence tests and the notes regarding this assessment should be clearly
recorded. Generally if parents refuse you cannot see the child for therapy.
• If the situation is urgent: if the child is in a serious or life threatening position
(suicidal) and parents are not able to consent urgent medical action can be taken
under section 3 of the children’s act 1989: empowers those responsible for the care
of the child to take the necessary action for the welfare of the child. It is not
intended to be used for non-urgent general situations

17. NHS
• Counselling within the NHS involves working with patients and
staff in hospitals, clinics and doctor surgeries
• You’re working within multidisciplinary teams and a cross
various practice settings. Counsellors frequently part of the
medical social work team.
• Counselling with in the NHS will be addressing a direct
problems e.g. mental health issues, anxiety, depression as well
as those caused by the illness or accident: loss of limbs,
disfigurement, impairment of functioning cognitively and
physically. Some services will employ counsellor specifically to
address the psychological elements of the chronic disabling
effects of conditions: cancer, diabetes, multiple sclerosis, …

18. NHS
Contract issues:
• Therapist may find themselves in a dilemma in which they want
to agree to terms in a therapeutic contract which may run
counter to their terms of employment within the NHS.
• The court may enforce explicit contractual agreements of
employment with the NHS against which you may agree with a
client
• Therapist who disagree with any aspect of the policy need to
consider their position carefully and address this with the
organisation
• Therapeutic contracts need to mirror organisational contracts
or this will lead to conflict of interest

19. NHS: Dilemmas of a Confidentiality

20. Pastoral Setting
• Therapist will encounter clients with a wide variety of
faiths, spirituality, religious backgrounds and
experiences.
• Pastoral counselling has a dual meaning:
• 1. counselling with in a faith context (e.g. with in the
church) or
• 2. it may mean a specific discipline in itself as an
approach to counselling: it assumes that the three
people in the room, the consular, the client and God.
• You need to consider the issues that the context of
counselling with in a religious/faith setting may bring

21. Legal and ethical features in the context of Pastoral setting:
• Confidentiality: confidentiality is protected by mixture of the
more specific relevant to the faith (church law, sharia law et
cetera) and the law of the State. In addition to the church law
confidentiality is governed by the mixture of guidance, case law
and statute.
• When counselling is provided in the context of spiritual and
religious practice the are subject to the law of the State in
matters such as professional liability, duty of care, contracts,
health and safety, equality and diversity, etc.
• Tensions arise between religious law, therapeutic practice and
the law of the State. This is in particular in relation to
confession and their “seal of the confessional”

22. Seal of the confessional:
• In certain faiths confessions to an ordained minister and absolution
for their sins are held with in the faith to be totally confidential
• The Church of England guidance regarding the confidentiality of
confession makes no exemption for disclosure of abuse of children or
vulnerable adults even when the parishioner’s behaviour gravely
threatens his or her well-being or that of others. The ordained minister
should urge the person to report their behaviour to the appropriate
authorities/social services or police.
• This does not apply to non-ordained ministers working with in the
context of general pastoral care!

23. Other areas for consideration
• Please consider the legal aspects involved in these 2
chapters
Chapter 17 professional and ethical practice in the
consulting room with lesbians and gay men by Lindsey
Moon
chapter 19 professional and ethical practice in multicultural
and multi-ethnic society by John and Nimisha Patel

24. Readings
Mitchels, B. & Bond, T (2011)
Chap 1: Private Practice
Chap 3 Voluntary Work
Chap 4 Working with Adults in the Context of Social Care Agencies
Chap 5 Education
Chap 6 The National Health Service (NHS) and Private Health Care
Chap 7 Counselling in Spiritual or Pastoral Settings
Advanced Reading
Tribe, R. & Morrissey, J (editors) (2005)
Chapter 14 working in a health care setting: professional and ethical challenges by Amanda Evans
and the Robert Bor.
Chapter 17 professional and ethical practice in the consulting room with lesbians and gay men by
Lindsey Moon
chapter 19 professional and ethical practice in multicultural and multiethnic society by John and
Nimisha Patel
Jenkins (2002) Chapter 3 - Legal Pitfalls in Counselling and Psychotherapy Practice, and How to
Avoid Them