A Study of Legal Issues Encountered by School Counselors and Perceptions of Their Preparedness to Respond to Legal Challenges

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1 Title: A Study of Legal Issues Encountered by School Counselors and Perceptions of Their Preparedness to Respond to Legal Challenges, By: Hermann, Mary A., Professional School Counseling, , October 1, 2002, Vol. 6, Issue 1 Database: Academic Search Elite A Study of Legal Issues Encountered by School Counselors and Perceptions of Their Preparedness to Respond to Legal Challenges Method Contents Survey Procedure Results Legal Issues Encountered by School Counselors School Counselors' Perceived Level of Preparedness to Respond to Legal Issues Relationship of Variables to Perceived Degree of Preparedness to Respond to Legal Issues Discussion Limitations Implications for School Counselors Table 1. Percentage of Who Encountered Legal Issues in Past 12 Months Table 2. ' Perceptions of Their Preparedness to Respond to Legal Issues Table 3. Results of t- tests Between

2 Completing an Ethical/Legal Course and Those Who Did Not Table 4. Results of t- tests Between Completing Ethical/Legal Continuing Education and Those Who Did Not Table 5. Results of t- tests Between Licensed as Professional Counselor and Those Who Were Not Table 6. Results of t- tests Between NBCC and non- NBCC References School counselors are encountering many legal issues (Corey, Corey, & Callanan, 1998; Fernandez, 1992), and various authors have discussed the areas of school counselors' legal vulnerability. Lawrence and Kurpius (2000), Remley and Herlihy (2001), and White and Flynt (2000) explained that failing to report suspected child abuse can result in civil and criminal liability. Lawrence and Kurpius noted that confidentiality can be a difficult legal issue, especially when counseling minors. Remley and Herlihy posited that counselors can be subpoenaed to produce records and appear at court proceedings. Failure to effectively manage a client's threats of violence and acting negligently when counseling suicidal clients can result in malpractice lawsuits as well (Ahia & Martin, 1993; Corey et al.; Glosoff, Herlihy, & Spence, 2000; Remley & Herlihy; Remley & Sparkman, 1993). Researchers have identified laws of particular relevance to school counselors and assessed school counselors' knowledge of these laws (Davis & Mickelson, 1994; Herndon, 1990; Rawls, 1997). Herndon reviewed laws that may have an impact on school counseling. Rawls studied school counselors' knowledge of school law, and Davis and Mickelson studied school counselors' knowledge of their legal and ethical responsibilities. According to these studies, school counselors face legal dilemmas in the areas of student privacy, reporting suspected child abuse, counseling students who pose a danger to others, and ensuring the safety of students. Variables potentially related to counselors' knowledge of legal and ethical issues have also been identified. Rawls (1997) studied the possibility of a relationship between school counselors' knowledge of school law and demographic variables including the type of education in school law, recency of school law education, years of experience as a counselor, memberships in professional organizations, and highest degree obtained. Gibson (1992) explored the relationship between counselors' knowledge of and confidence in ethics beliefs and credentials, membership in professional organizations, year of graduation, highest degree obtained, and amount of instruction in ethics. Though the literature contains references to potential legal issues facing school counselors and school counselors' knowledge of these issues, no studies to date considered which legal issues were most prevalent. The current study assessed the types and frequency of legal issues being encountered by school counselors. This study also examined school counselors' perceptions of their ability to respond to prevalent legal issues. Whether participants' perceptions of their ability to respond to these issues were related to having completed a course in ethics or legal issues, having completed continuing education in ethics or legal issues, degree held, years of experience, whether licensed by their state, and whether certified by the National Board for Certified Counselors (NBCC) was also considered. The results of this study are intended to help determine whether school counselors need more exposure to legal issues as part of their graduate program and through continuing education in order to practice in a legally sound manner and thus avoid unnecessary litigation. Method Five hundred members of the American School Counselor Association (ASCA) and 500 members of the American Mental Health Counselors Association (AMHCA) were selected to participate in this research project. The respondents included 273 school counselors. The data provided by the 273 school counselors were analyzed for this article. The sample of school counselors consisted of 23.1% males and 75.8% females. The participants were African American (6.6%), Native American (.7%), Hispanic American (1.1%); European American (87.9%), and Asian American (1.1%). Although 88% of the respondents held master's degrees, 8% of the respondents also held specialist degrees, and 4% of the respondents had earned doctoral degrees in counseling. Counselors from every state except Montana, Oklahoma, West Virginia, and Wyoming participated in the study. One school counselor from the District of Columbia and one school counselor from outside of the United States also participated. Two percent of the participants reported that they worked in elementary schools, 28% indicated that they worked in middle schools or junior high schools, and 60% reported that they worked in a high school setting. Three percent of the participants indicated that they worked in a school for both elementary and middle school students. Furthermore, four percent of the respondents reported that they worked in a school for both middle and high school students and three percent of the participants reported that they worked in a school for elementary, middle school, and high school students.

3 The respondents' years of experience as school counselors ranged from one to 35 with a mean of (SD = 9.84). Thirty-six percent of the participants had less than 5 years of experience and 64% of the participants had 5 or more years of experience as school counselors. Almost three-fourths (73.6%) of the school counselor participants indicated that they had completed a course in ethics or legal issues in counseling. More than one half (56.8%) of the respondents had recently completed continuing education in ethics or legal issues. Approximately one half (49.8%) of the participants were licensed professional counselors. A total of 23.8% were certified by NBCC. Survey No studies that addressed the particular legal concerns of school counselors, the prevalence of the legal issues actually faced by school counselors, or school counselors' perceptions of their ability to effectively address legal issues were found in the literature. Thus, a survey was constructed to gather this information. This survey was entitled the Legal Issues in Counseling Survey. Section 1 of the survey was created to assess the legal issues being encountered by counselors and the prevalence of these issues. The prominent legal issues addressed in the literature (e.g., Davis & Mickelson, 1994; Herndon, 1990; Rawls, 1997) and reflected in the survey included: Determining whether to report suspected child abuse Counselor / student confidentiality Determining whether a student poses a danger to others Determining whether a student is suicidal Responding to a subpoena were provided with an opportunity to add other legal issues they had encountered in the past year. In addition, participants were asked to indicate how many times each of the legal issues had been encountered in the past year. Section 2 of the survey presented the same legal issues and asked respondents to indicate how prepared they felt to effectively manage the legal issues. A Likert-type scale from one, "not prepared," to five, "very prepared," was presented to respondents. The final section of the survey was created to gather information on the independent variables in this study. These variables were determined based on previous research on similar topics (e.g., Gibson, 1992; Rawls, 1997) and included having completed a course in ethics or legal issues, having completed continuing education in ethics or legal issues, degree held, years of experience, whether licensed by their state, and whether certified by NBCC. The face validity of the survey was tested before the surveys were sent to the participants. The survey was sent to five experts in legal issues in the counseling field. These experts were asked for feedback about the survey, including whether the experts believed the major legal issues in the counseling field had been identified in the survey. Additionally, 12 counselors who had worked or currently worked in school or community mental health settings were asked to complete a draft of the survey and answer questions regarding their ability to understand what was being asked of them. Information about the survey's clarity, the problems experienced when completing the survey, and the amount of time required to complete the survey was requested. Feedack about the survey was used to enhance the survey's clarity. Procedure A cover letter and survey were mailed to the prospective participants. A self-addressed stamped envelope was included in the packet to encourage response and to protect anonymity. Two weeks after mailing the packets, a postcard was mailed to each potential participant which reminded them that they had recently received the survey and requested that they complete and return it if they had not already done so. Results

4 Legal Issues Encountered by School Counselors were asked to indicate the approximate number of times in the past year they had encountered the legal issues listed on the survey. School counselor participants' responses are summarized in Table 1. According to these results, having to determine whether a client was suicidal and having to determine whether to report suspected child abuse were the most prevalent issues faced by school counselors. Another prevalent issue for school counselors was having to determine whether a client posed a danger to others. The legal issues encountered least often were being asked to turn over records that the school counselor considered to be confidential and being subpoenaed to appear as a witness in a legal proceeding. The participants indicated that they had dealt with some legal issues that were not included on the survey. Three participants reported they had counseled students who had been sexually harassed by other students, one participant had encountered a case of statutory rape, and another participant added minors' abortion rights to the legal issues presented on the survey. Three participants indicated they were asked to play a role in child custody proceedings. Furthermore, one participant reported that legal issues related to the Family Educational Rights and Privacy Act of 1974 (FERPA) were being encountered. Seven participants indicated legal issues related to special education laws were encountered. Additionally, two participants reported they were threatened with lawsuits related to professional services and one participant had been named as a defendant in a lawsuit for educational malpractice. School Counselors' Perceived Level of Preparedness to Respond to Legal Issues were asked to indicate the degree to which they felt prepared to respond to the legal issues listed on the survey. The survey presented a continuum from one to five, one indicating that the school counselor did not feel prepared to deal with the issue and five indicating that the school counselor felt very prepared to deal with the issue. The results of these data are summarized in Table 2. School counselors felt better prepared to respond to certain legal issues. Over 90% of the school counselor respondents felt well prepared to determine whether to report suspected child abuse. The participants felt more prepared to respond to this legal issue than any other issue presented on the survey. Additionally, almost threefourths (72%) of the school counselor respondents felt well prepared to determine whether a client was suicidal. School counselors felt least prepared to respond to being subpoenaed to appear as a witness in a legal proceeding. Less than one fourth (23%) of the participants felt that they were well prepared to deal with this issue. Relationship of Variables to Perceived Degree of Preparedness to Respond to Legal Issues This study sought to determine whether certain variables were related to the perceived degree of preparedness of school counselors to respond to legal issues. These variables included taking a course in ethics or legal issues in counseling, recently completing continuing education in ethics or legal issues, level of education (master's degree, specialist degree, or Ph.D.), years of experience as a school counselor, licensure as a professional counselor, and certification by NBCC. Independent t tests were used to determine if significant differences existed in the participants' perceived degree of preparedness to respond to each legal issue based on these variables. Differences were considered significant at the.01 level. The results of these analyses are presented in Tables 3 through 6. According to this study, school counselors who recently participated in continuing education on ethics or legal issues felt better prepared to determine whether to report suspected child abuse, respond to pressure to reveal confidential information, and to determine whether a student was a danger to self or others. This study also found that participants who took a course in ethics or legal issues felt better prepared to respond to being subpoenaed to appear as a witness in a legal proceeding. who obtained state licensure as professional counselors indicated that they felt better prepared to respond to pressure to reveal confidential information and to determine if a student is a danger to others. who were certified by the NBCC felt better prepared to determine if a student was a danger to others. Level of education and years of experience had no significant relationship to school counselors' perceptions of preparedness to manage legal issues. Discussion Determining whether students are suicidal is the legal issue that participants reported encountering most frequently.

5 This finding supports the research of King, Price, Telljohann, and Wahl (1999) who reported that 74% of the respondents in their study indicated that at least one student had attempted suicide at the high school where the counselor was employed while the counselor was working there. The school counselors surveyed in this study felt most prepared to determine whether to report suspected child abuse and to determine whether a client was suicidal. Counselors felt least prepared to respond to a subpoena to appear as a witness in a legal proceeding. It is noteworthy that participants encountered the issues of determining whether a client was suicidal and reporting suspected child abuse most frequently, and they encountered having to respond to a subpoena to appear as a witness in a legal proceeding least frequently. These results seem to indicate that school counselors feel better prepared to deal with legal issues that they encounter on a regular basis. The finding that the participants felt more prepared to determine whether to report suspected child abuse than any other issue on the survey also supports the findings of Davis and Mickelson (1994) who reported that school counselors responded in a legally appropriate manner to survey items related to mandatory child abuse reporting. Conversely, the finding that 72% of the school counselors in this study reported that they felt prepared to determine whether students are suicidal does not support the work of Rawls (1997) and King et al. (1999). Rawls noted that school counselors experienced difficulty with legal issues such as counseling suicidal students. King et al. found that only 38% of high school counselors felt that they could determine if a student was at risk for suicide. This discrepancy merits additional investigation. One of the most important findings of this research study was that school counselors who recently participated in continuing education related to ethics or legal issues in counseling felt better prepared than their colleagues who had not recently participated in this type of continuing education to respond to the legal issues encountered most frequently by the participants. For the legal issue reporting suspected child abuse, participation in continuing ethical or legal education was the only variable that had a relationship to the participants' perceptions of their preparedness to respond. Considering these findings, it is notable that almost one-half of the participants did not participate in continuing education in legal and ethical issues. School counselors' perceived level of preparedness to respond to legal issues did not differ significantly considering the school counselors' years of experience or level of education. King et al. (1999) also found that counselors' confidence in their ability to identify students at risk for suicide did not differ significantly based on years of experience as a high school counselor or the education level of the counselors. Conversely, Gibson (1992) found a positive relationship between counselors' confidence in ethics beliefs and counselors' highest degree obtained, and Rawls (1997) found significant differences in-counselors' knowledge of legal issues considering counselors' level of education. Once again, these conflicting results are worthy of future study. In many states, school counselors are not required to be licensed as professional counselors, yet 49.8% of the school counselors in this study were licensed professional counselors. Furthermore, this study found that school counselors who were licensed felt better prepared to respond to being asked to reveal confidential information. This finding could relate to the laws in many states requiring a counselor to be licensed before a counselor can protect a client's right to confidentiality in a court of law. Thus, school counselors who are licensed may feel more comfortable in dealing with issues of client privacy. Remley and Herlihy (2001) noted that malpractice lawsuits against mental health practitioners have increased dramatically in the past 10 years. However, they explained that the total number of lawsuits against mental health practitioners is still relatively small. In this study, the two legal issues which are likely to be indicative of involvement in litigation, being asked to turn over confidential records and being subpoenaed to appear as a witness in a legal proceeding, were encountered by participants least often. Furthermore, when asked to specify other legal issues encountered in the past year, only 3 of the 273 participants indicated that they had been threatened with a lawsuit or sued. Accordingly, the results of this study seem to support the premise that though counselors are dealing with legal issues more often, the amount of litigation involving counselors is still very low. Limitations One limitation of this study is that the sample consisted of school counselors who were members of ASCA. Not all school counselors are members of ASCA. Members of professional organizations may have more access than nonmembers to professional literature and professional development activities. Thus, the school counselors in this study may have been more knowledgeable about legal issues. Another limitation of the study related to state counselor licensure laws. Some states do not provide licensure for counselors. Consequently, some of the participants did not have the opportunity to be licensed. Thus, the statistics based on the licensure variable may have been affected by state licensure opportunities.

6 Some universities do not teach ethics as a course, but include discussions of legal and ethical issues in the courses they do offer. Accordingly, the school counselors in this study may have had course work in legal and ethical issues in counseling, even though they did not take a specific course in legal and ethical issues. This limitation may have affected the statistics related to the course work completed by the respondents. The study was further limited by the data-gathering potential of the survey, the self-report nature of the data, and the statistical procedures employed. For example, the use of the Likert-type scale to assess the degree to which counselors felt prepared to effectively manage legal issues limits the range of answers to the questions. Moreover, malpractice is a sensitive issue. Thus, participants may have indicated they encountered fewer legal issues than they actually have encountered and that they are better prepared to manage legal issues than they actually are. Implications for School Counselors This study's identification of the legal issues currently being encountered by school counselors can help school counselors become aware of specific areas of legal vulnerability. The study found that the most prevalent legal issue being encountered by school counselors is determining whether a student is suicidal. Accordingly, school counselors need to be cognizant of the warning signs of suicidal behavior and should have the skills necessary to assess a client's risk for suicide (Capuzzi & Gross, 2000). Furthermore, school counselors need to know what steps to take once they determine a student is at risk for suicide (Remley & Herlihy, 2001). School counselors are also having to determine whether to report suspected child abuse and whether students pose a danger to others. The legal mandates related to these legal issues vary by state. Thus, school counselors need to be knowledgeable about relevant state statutes and case law. School counselors who participated in continuing education in ethics or legal issues felt better prepared to respond to the legal issues encountered most frequently by the school counselors in this study. Yet, almost one-half of the respondents did not take part in continuing education in ethics or legal issues in counseling. Continuing legal education is particularly valuable to school counselors considering that laws related to education are constantly changing as new legal precedents and statutory law emerge. Hopefully, these findings will encourage school counselors to participate in continuing education on legal and ethical issues in counseling. The results of this study indicate that school counselors are encountering many legal issues. Thus, school counselors are legally vulnerable. Being aware of the prevalent legal issues in the school counseling community and obtaining the education necessary to respond to these issues can help school counselors provide appropriate services for students and minimize the risk of unnecessary litigation. Table 1. Percentage of Who Encountered Legal Issues in Past 12 Months B - Encountered Issue C - Encountered Issue Two or More Times A B C Determining Whether to Report 89% 74% Being Pressured to Verbally Reveal 51% 34% Confidential Information Being Asked to Turn Over 19% 10% Determining Whether a Client 73% 51% Determining Whether a Client 90% 76% Being Subpoenaed to Appear as 18% 4%

7 a Witness in a Legal Proceeding Clients Expressing Dissatisfaction 42% 19% Table 2. ' Perceptions of Their Preparedness to Respond to Legal Issues B - Not Prepared C - Well Prepared D - M E - SD A B C D E Determining Whether to Report 2% 91% Being Pressured to Verbally 14% 57% Reveal Confidential Information Being Asked to Turn Over 22% 52% Determining Whether a Client 13% 63% Determining Whether a Client 6% 72% Being Subpoenaed to Appear as a 54% 23% Witness in a Legal Proceeding Clients Expressing Dissatisfaction 20% 48% Note: "Not Prepared" represents responses of one and two of this survey. "Well Prepared" represents responses of four and five. Table 3. Results of t-tests Between Completing an Ethical/Legal Course and Those Who Did Not B - Completed Course M C - Completed Course SD D - No Course M E - No Course SD F - t G - df A B C D E F G Determining Whether to Report Being Pressured to Verbally Reveal Confidential Information

8 Being Asked to Turn Over Determining Whether a Client Determining Whether a Client Being Subpoenaed to Appear as a Witness in a Legal Proceeding (*) 264 Clients Expressing Dissatisfaction (*) p <.01 Table 4. Results of t-tests Between Completing Ethical/Legal Continuing Education and Those Who Did Not B - Continuing Education M C - Continuing Education SD D - No Continuing Education M E - No Continuing Education SD F - t G - df A B C D E F G Determining Whether to Report (*) 215 Being Pressured to Verbally Reveal Confidential Information (*) 269 Being Asked to Turn Over Determining Whether a Client (*) 269 Determining Whether a Client (*) 215 Being Subpoenaed to Appear as a Witness in a Legal Proceeding Clients Expressing Dissatisfaction (*) p <.01

9 Table 5. Results of t-tests Between Licensed as Professional Counselor and Those Who Were Not B - Licensed M C - Licensed SD D - Not Licensed M E - Not Licensed SD F - t G - df A B C D E F G Determining Whether to Report Being Pressured to Verbally Reveal Confidential Information (*) 269 Being Asked to Turn Over Determining Whether a Client (*) 269 Determining Whether a Client Being Subpoenaed to Appear as a Witness in a Legal Proceeding Clients Expressing Dissatisfaction (*) p <.01 Table 6. Results of t-tests Between NBCC and non-nbcc B - Certified M C - Certified SD D - Not Certified M E - Not Certified SD F - t G - df A B C D E F G Determining Whether to Report

10 Being Pressured to Verbally Reveal Confidential Information Being Asked to Turn Over Determining Whether a Client (*) 114 Determining Whether a Client Being Subpoenaed to Appear as a Witness in a Legal Proceeding Clients Expressing Dissatisfaction (*) p <.01 References Ahia, C. E., & Martin, D. (1993). The danger-to-self-or-others exception to confidentiality. Alexandria, VA: American Counseling Association. Capuzzi, D., & Gross, D. R. (Eds.). (2000). Youth at risk: A prevention resource for counselors, teachers, and parents (3rd ed.). Alexandria, VA: American Counseling Association. Corey, G., Corey, M. S., & Callanan, E (1998). Issues and ethics in the helping professions (5th ed.). Pacific Grove, CA: Brooks/Cole. Davis, J. L., & Mickelson, D. J. (1994). School counselors: Are you aware of ethical and legal aspects of counseling. The School Counselor, 42, Fernandez, S. M. (1992). School counselor liability: A growing juggernaut (Educational Specialist Thesis, Central Missouri State University, 1992). Dissertation Abstracts International, 31-02, 524. Gibson, W. T. (1992). Ethics beliefs of National Certified Counselors (Doctoral dissertation, University of Wyoming, 1992). Dissertation Abstracts International, 53-09A, Glosoff, H. L., Herlihy, B., & Spence, E. B. (2000). Privileged communication in the counselor-client relationship. Journal of Counseling and Development, 78, Herndon, E. H. (1990). Legal aspects of the role of the public school counselor in North Carolina (Doctoral dissertation, University of North Carolina, Greensboro, 1990). Dissertation Abstracts International, 51-09A, King, K. A., Price, J. H., Telljohann, S. K., & Wahl, J. (1999). How confident do high school counselors feel in recognizing students at risk for suicide? American Journal of Health Behavior, 23, Lawrence, G., & Kurpius, S. E. (2000). Legal and ethical issues involved when counseling minors in nonschool settings. Journal of Counseling and Development, 78, Rawls, R. K. (1997). Virginia high school counselors and school law (Doctoral dissertation, Virginia Polytechnic Institute and State University, 1997). Dissertation Abstracts International, 58-08A, Remley, T. P., Jr., & Herlihy, B. (2001). Ethical, legal, and professional issues in counseling. Upper Saddle River, NJ:

11 Prentice Hall. Remley, T. E, Jr., & Sparkman, L. B. (1993). Student suicides: The counselor's limited legal liability. The School Counselor, 40, White, J., & Flynt, M. (2000). The school counselor's role in prevention and remediation of child abuse. In J. Wittmer (Ed.), Managing your school counseling program: K-12 developmental strategies (pp ). Minneapolis, MN: Educational Media. ~~~~~~~~ By Mary A. Hermann, J.D., Ph.D., Mary A. Hermann, J.D., Ph.D., is an assistant professor, Counselor Education and Educational Psychology, Mississippi State University, Mississippi State, MS. Copyright of Professional School Counseling is the property of American School Counselor Association and its content may not be copied or ed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or articles for individual use. Source: Professional School Counseling, Oct2002, Vol. 6 Issue 1, p12, 8p. Item Number: Top of Page Formats: HTML Full Text Citation Result List Refine Search Print Save 2004 EBSCO Publishing. Privacy Policy - Terms of Use

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