Lecture 1: Ethics and the English Legal System

Kevin Standish

LAW FOR COUNSELLORS

1.Principles of Law2.English legal system3.Law and Ethics4.Differences between

counselling and law5.Ethical approaches

COUNSELLING LEARNING

OBJECTIVES

• Counselling and psychotherapy provide a unique professional relationship

• Therapy an art and a science• The profession requires a system of

professional accountability • Overarching legal system &

professional code of ethics provide regulation framework

1.PRINCIPLES OF LAW

• Legal boundaries apply to all of society

• Legal scrutiny applies to counsellors and psychotherapists regardless of what we call ourselves

• This potential scrutiny must inform & govern the expectations of the therapeutic relationship

COUNSELLING AND THE LAW

• We ignore it at our peril!• US lawsuits indicate the vulnerability of

therapists • Some say there is no Case Law in UK for

counselling• Medical Case Law (including

psychotherapy) is the closest cousin• This provides us with a framework for

consideration

COUNSELLING AND THE LAW

• Law attempts to be black and white yet:• Complex arena which depends on the

context in which you work, nature of client group, type of issue or concern and employment status

• Especially when working with children and young people

• Follow the guidelines laid down by experts

• Stick to established paths!

COUNSELLING AND THE LAW

• The legal system is based on a mixture of statute, laws passed by Parliament and common law

• Common law embodies long-established principles which are not necessarily expressed in one single piece of law

• Caselaw is the interpretation of the law made by judges on individual cases: Gillick case 1986

• The hierarchy of the court system means that decisions taken at one level can be overturned by decisions in a higher court: Court of Appeal , House of Lords.

• This decision becomes a point of reference and sets a legal precedent

PRINCIPLES OF LAW

• Statute refers to pieces of primary legislation passed by Parliament

• Secondary legislation operates in the form of statutory instruments.

• These authorised by the relevant Minister and have detailed operational guidelines

• Examples: mental health act, safeguarding children

STATUTE

• Common law is law made by judges, based on the practice and experience

• The law evolves on an empirical basis, adapting to new circumstances without requiring fresh legislation

• Therefore a large and important areas of law are not in the statute, operate on the basis of established principles.

• Examples: contract law, confidentiality and law of Tort (negligence)

COMMON LAW

• Case law is important in relation to the evolution of common law and the influence on future legislation

• Statute carries greater authority than case law• However case law influence the framing of statutes

in future• Example: Gillick competence influenced the

framing of the children’s act• Gaskin case established the rights of service users

to access their files across health, education and social services

CASE LAW

2. ENGLISH LEGAL SYSTEM

• Criminal cases brought to court by the prosecutor• Verdict include not proven, as well as guilty or not

guilty• Criminal law operates to punish breaches of law

within the wider community• two elements of criminal Law: 1 proof of the

committing of guilt act and 2. and the possession of the intent or of a guilty mind.

• Civil law remedies disputes between parties such as private individuals, issues concerning property, child and family issues.

CIVIL AND CRIMINAL LAW

• Civil Law-including Tort and Negligence Law:• Proceedings can be brought by private

interest to secure direct remedy• Case proven on ‘balance of probabilities’ it is

more probable than it is true• Leads to judgement or order for: payment of

damages, contract compliance, stopping of activity

• Most relevant area of Law for therapists

CIVIL LAW

• Criminal Law:• Prosecution usually brought by public

agency; Crown Prosecution Service• Case proven to be ‘beyond reasonable

doubt’, a more stringent criterion of proof

• Leads to acquittal or sentence: fine, custody, criminal conviction

CIVIL AND CRIMINAL

LAW

• Access to personal files Act 1987• Children’s Act 1989/2004• Consumer Protection Act 1987• Data Protection Act 2010• Equality Act 2010• Health and Safety at Work Act 1974• Mental Health Act 1983• Proceeds of Crime Act 2002• Suicide act 1961• Terrorism Act 2004/2001• Law of Tort: Liability for negligence arises when one person

breaches a duty of care owed to another

KEY LEGISLATION

3. LAW AND ETHICS

• Ethical principles and frameworks provide assistance in framing decisions about what is morally right or wrong

• Professional ethics is a way of explaining how their work is best undertaken to achieve the greatest good and minimise greatest harm

• Ethical frameworks are not law, nor are they in themselves, legally binding.

• An expression of the shared values of the profession carries great weight in consideration of complaints. Court referred to ethical frameworks and codes of practice to determine a reasonable standard of practice.

• The main ethical framework for therapy is based on the concept of: autonomy, Fidelity, Justice, beneficence, non-maleficence, and self care

• The seek to protect the well-being and self-determination of the client, to avoid harming the client or others, and to maintain competency of the therapist

ETHICS

THE ETHICAL CHANGES: TO ...

Role specific

Talking therapy as personal/individual

actionIndividual

practitionerEthic of client

autonomy dominantEthical principles

dominant

Generic

Talking therapy as both personal and social

action+ Team and agency

Multiple ethical perspectives offeredOther approaches to

expressing ethics included

Relational ethics

ETHIC OF CLIENT AUTONOMY -

STRENGTHS

• Challenges assumptions about professional power

• Strengthens client power and influence by directing attention to the client’s right to be self-governing

• Directs attention to importance of free and informed consent, confidentiality, rejects manipulation for social ends

ETHIC OF CLIENT AUTONOMY - LIMITATIONS

• Culturally biased - presupposes atomistic and individualistic approach to self

• Leaves an ethical void when limitations to autonomy encountered - dependency/lack of capacity, suicidal intent(?), harm to others

• Weak on practitioner’s valid rights• Inhibits awareness of wider social context

and responsibilities - self in relationship

INNOVATIONS – NEW PRINCIPLES

• Fidelity -honouring the trust placed in the practitioner

• ethic of relationship

• trustworthiness, boundaries, confidentiality, mutual respect

• Closely matches ethic of autonomy in Western culture but adaptable to other social and cultural contexts

INNOVATIONS - AUTONOMY

•Autonomy - respect for client’s right to be self-governing

• addresses power imbalance, informed consent, confidentiality, clients as ends in themselves -not means to an end - ie rejects manipulation for beneficial social ends

INNOVATIONS - NEW PRINCIPLES

• Beneficence - promoting client’s well-being

• Non-maleficence - avoidance of harm• previously implicit as subsidiary principles • vulnerable clients incapable of autonomy• prohibition on exploitation • responsibility for dependent clients who

are vulnerable to harm?

INNOVATIONS - NEW PRINCIPLES

• Justice - fair and impartial treatment of all clients and the provision of adequate services

• respect for human rights and dignity• conscientiously considering any legal

requirements• fairness and avoidance of

discrimination• striving for fair and adequate provision

of services

INNOVATIONS - NEW PRINCIPLES

• Self-respect - fostering the practitioner’s self-knowledge and care of self

• controversial but important in relationship with client’s, colleagues and others

• appropriate application of all the previous principles to self

• personal and professional development• validates life outside talking therapies

STRENGTHS AND LIMITATIONS OF

PRINCIPLES

• Dominant in professional ethics• Good way of expressing prospective

expectations and retrospective justification• Rational, analytic and action orientated • impersonal and detached? BUTBUT• Ethics in practice are informed by

underpinning ethical commitment, values, and experienced as personal moral qualities ….

VALUES

• Values inform principles• respect for human rights and dignity• integrity of practitioner-client

relationships• enhancing quality of professional

knowledge• alleviating personal distress and suffering• facilitating a sense of self that is

meaningful …

PERSONAL MORAL QUALITIES

• Empirical evidence that the practitioner’s personal qualities are foremost in clients’ sense of safety and quality of relationship

• Cannot be required by definition • Need to be deeply rooted in the

person as an act of personal commitment

• Qualities are what we aspire to

PERSONAL MORAL QUALITIES

•Empathy•Sincerity•Integrity•Resilience•Respect

•Humility•Competence

•Fairness•Wisdom•Courage

OVERALL EFFECT

• Recognition that profession is maturing and facing complex ethical challenges for which there may be several appropriate responses

• Change the professional culture and ethos from conformity to rules to ethical accountability and engagement

• Fostering ethical understanding and practice intrinsic ethics - ethical ethical mindfulnessmindfulness

4. DIFFERENCES BETWEEN COUNSELLING AND LAW

• Therapy and will operate from distinctly different discourses

• Therapy prizes raw subjective experience of individual working with ambiguity, and methaphor rather than literal truth.

• The law is concerned with establishing objective verifiable facts

• Therapy is a cooperative and co-constructed process emotional meanings and experience

• Law is based on an adversarial proceeding: one side wins – the other side loses; through a robust process of proof

THERAPY AND THE LAW

• The Law is dynamic, fluid and rapidly changing

• Each case brings a new understanding of the legal implications to counsellors

• Law is not fixed for all time so we have to stay abreast of developments

• BACP Ethical Framework important in maintaining accepted standards of practice

COUNSELLING AND THE LAW

“ Practitioners should be aware of and understand any legal

requirements concerning their work, consider these

conscientiously and be legally accountable for their practice”.

(2002)

THE BACP GUIDELINES CONCERNING LAW

• Ethical principles drive the priorities of therapeutic work with clients

• Fidelity-trust, responsibility, confidentiality (Contract Law)

• Autonomy-informed consent, voluntary participation, free choice, (Contract Law)

• Beneficence-’duty of care’, acting within ones area of competence, client safety, (Negligence)

ETHICAL PRINCIPLES AND THE LAW

• Non-Maleficence: avoid causing damage and negligence, hippocratic oath: ‘never do any harm to anyone’. Provide appropriate standard of care. (negligence)

• Justice: -promotion of fairness and equality. Requires compliance with anti discrimination legislation including access to services (long waiting lists, disability access)

ETHICAL PRINCIPLES AND THE LAW

ETHICAL PRINCIPLES AND THE LAW

• Self-respect: maintaining our own well being, personal self-care, managing workload, adequate supervision and training, moral standards and compliance with Supply of Goods and Services Act (1982)

ETHICAL PRINCIPLES AND THE LAW

• The law is not a monolithic structure which will not always dictate a clear and obvious course of action.

• Legal principles may be in direct conflict in the therapist may decide to maintain the confidentiality, and this would be supported by common law and statute.

• Alternatively the therapist may decide to break confidentiality in the public interest, which is also supported by common law and statute

• The key point: therapist remain accountable for their decisions both in ethical sense and in terms of the law

THERAPIST CHOICE

• The Law is dynamic, fluid and rapidly changing

• Each case brings a new understanding of the legal implications to counsellors

• Law is not fixed for all time so we have to stay abreast of developments

• BACP Framework important in maintaining accepted standards of practice

THERAPIST CHOICE

1. The context or setting in which the practitioner practices: statutory agency, voluntary organisation, or in private practice

2. By the nature of the specific client group the practitioner is working with: children, clients with significant and enduring mental health problems, etc

3. By the practitioner’s employment status: whether the therapist is employed or self-employed

THREE MAIN MEDIATING FACTORS

5. ETHICAL APPROACHES

• Approaches to ethical reasoning grouped in terms of either ethical principles or the concept of virtues

• Principle ethics based on obligation to others

• Outcome based ethics: anticipating the outcomes and the impact on all concerned.

1. Rule following approaches to ethics: 2. Outcomes approach to ethics3. Virtue approaches to ethics

APPROACHES TO ETHICS

• Various attributes and resources integral to developing an informed ethical stance

• These include personal qualities such as the ability to reason and develop awareness of consequence of one’s own actions on others

• At an emotional level and understanding of self and an ability to empathise with others

• To distinguish between one’s own needs rights and duties and a focus on the awareness of the well-being of others and their rights and duties

• The capacity to act in the interests of others is vital to finding ethical choices

MAPPING ETHICAL APPROACHES

Core readings•Mitchels, B. & Bond, T (2010) chapter 1 Law and ethics•Tribe, R. & Morrissey, J (editors) (2005) chapter 7 the legal context of therapy by Peter Jenkins•Bond, T. (2010) chapter 3 sources of counselling ethics and chapter 4 framework for counselling ethics and standards•Jenkins (2007): 1 - Therapy, Ethics and the Law and 2 - The Legal Context of Therapy• Bond,T.& Sandhu, A. (2005) : Chapter 9 - Overview of the UK Legal SystemsAdvanced Readings•Tribe, R. & Morrissey, J (editors) (2005) chapter 2 developing and monitoring professional ethics and good practice guidelines by Tim Bond; and chapter 5 the person in ethical decision-making: living without choices by Cross and Wood•Sills, C. ( 2006) Contracts in Counselling and Psychotherapy: Chapter 9 - Contracts, Ethics and the Law•Jenkins (2007) 8 - Statutory Regulation of Therapists

READINGS