We have entered an unusual time in the consulting profession when our specialty is practicing during a global pandemic. While most of us practice telemedicine for the most part, we see our customers again in face-to-face situations. Many consultants prefer to see our clients in person, but there are concerns about COVID-19 that have ethical implications. Four counseling educators and members of the American Counseling Association, all clinicians and ethicists, two of whom are also attorneys, looked at the counseling tracing issue.
Contact tracking
The Centers for Disease Control and Prevention (CDC) define contact tracing as part of the broader case investigation process that can assist individuals suspected of or suffering from COVID-19. During the process, exposed people known as "contacts" are told that they may have been exposed to someone with COVID-19. Instead of knowing who the person is, they are given information to make their own healthcare decisions. The CDC and investigators try to act as quickly and sensitively as possible to share relevant information with people who may be affected or at risk.
Ethical concerns
Customers have the right to invade their privacy. You can tell someone that they saw us for church services, and even about what they were talking about. However, advice is unique in the concept of confidentiality, the counselor's ethical obligation. Consultants cannot disclose any information about the client, including the fact that the client is actually a client. In the past, counselors have followed the “I cannot confirm or deny” approach to information requests to acknowledge whether an individual was in their care unless there is a signed agreement allowing the counselor to exchange information.
The dilemma
If a customer signs COVID-19, the customer can share contact with the advisor with health professionals. The dilemma arises when and when the counselor becomes infected with the virus. How would this person protect customer confidentiality while maintaining public health best practices? If the advisor were a hairdresser, they could flip over a list of clients they saw during the identified time period. What should the counselor do in case of advice?
The experts
We asked these questions to a small group of ethics and legal scholars in the advisory field. Here are their answers.
Mary Hermann: I encourage counselors to address this issue in their informed consent and in their ongoing informed consent discussions. Given the ease with which this virus spreads and the loss of life that it involves, we would probably need to disclose our contacts to public health officials, but protect our customers as much as possible.
Donna Sheperis: I really like the idea of addressing this in informed consent. We understand that informed consent is not just a document. It is a dynamic process that repeats over time, especially in response to changes in society. COVID-19 represents an enormous change for our society and culture.
If I were to work in a contract tracking area, I could include the parameter and restriction of COVID-related disclosure in my consent form. In particular, I want my customers to know that if I test positive I would let them know myself. Second, I want them to know that all I have to do is give their names to the entity doing the contact tracing. The investigator would have no knowledge of how I came into contact with the customer as the names of the customers would get mixed up with other employees, my family, my friends, and anyone else I came into contact with. However, the risk that someone may be seen as a client by the investigator is very real.
If a customer was unfamiliar with this risk, we may need to rethink our ability to work together. I would hope it doesn't come to that, but it is possible.
Michael Kocet: Because of the fluid understanding of this virus and its spread, it is important that counselors obtain the latest information from the CDC, World Health Organization and other government agencies to provide the most current information. It is also important for clinicians to remember that informed consent is both a written and an oral process and that it is next to impossible for a counselor to include every detailed nuance of information in a consent form. Additional verbal information given to a client should be documented in a clinical case report on the client's file.
Ann Ordway : A critical consideration is the purpose of the counselor to reveal the client's identity. With traditional exceptions to confidentiality – namely, when a customer is a danger to themselves or if the customer is a danger to others – the purpose of disclosure is to protect the customer or other identified persons.
If a consultant tests positive for COVID and has had contact with certain customers, the purpose of disclosing the names of these customers for contact tracing is also to reduce the risk and to inform customers and other people with whom the customer has also been in contact, protect contact. It is important to inform customers that this can happen and under what circumstances it will happen. Consultants should avoid unnecessary breaches of customer information, but the adverse nature of disclosing a customer's identity could be outweighed by the public health probative value and slowing down this virus.
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There was also some discussion of ethical implications if a client should test positive for COVID-19.
Michael Kocet: Als Standard B.2.c. According to the outlines of the 2014 ACA Code of Ethics, consultants are required to evaluate clients' intentions to inform others of contracting a contagious, life-threatening disease. While this standard emerged mainly from HIV and AIDS issues, I think COVID can certainly be applied to this standard.
I think the main consideration is the customer's intention. For example, if a customer is diagnosed with COVID and tells the advisor that they intentionally want to pass the virus on to others, or that they are not disclosing their COVID status to family members, friends or employees, confidentiality may need to be done. It would be almost impossible to know every single stranger and person with whom the diagnosed client came in contact. I suppose a counselor could consult with someone from a state health department or with someone from the CDC without giving out customer information.
It could get difficult when a person is working on the front lines, for example in a grocery store or in a place where they have to work to get paid. If that person comes in contact with COVID, they may not want to disclose that fact. Let's say the customer tells their advisor that they have COVID but have to work to pay for groceries and bills so they don't tell their employer or employees that they are infected and keep going to work. I would suggest that this would be an example of a time when confidentiality could be broken because it puts employees and others at risk of dying.
Ann Ordway: A customer who is positive or who later turns positive can be viewed as a "danger to others". I would not be so concerned about a customer expressing an intention to disclose their own contacts with others as I would rather be about someone who refuses to cooperate with a contact tracing process or who is reluctant to expose others.
Of course, I would try to include the customer in the process. It's always better if the customer agrees to disclosure or waives confidentiality, but that's not always possible. I advocate including language in informed consent to make it clear that responding to a valid subpoena or complying with a law or regulation are also exceptions to confidentiality.
Guidelines for Disclosure or Reporting in Connection with a Client's Diseases Originally Resulting from HIV. Since there's no way to predict what's next, I would suggest including general language in the informed consent form so that advisors are more likely to be covered in the event that other highly contagious diseases emerge in the future.
Even when counselors are forced to disclose the identity of a client, they only need to share basic traceability information, not confidential counseling details. The CDC may need to know the name and contact of the person who tested positive, but does not need to know the current problem, diagnosis, or progress of the person.
Conclusion
Historically, we have never faced an ethical dilemma in which the counselor could be the person who infects a client. We have no real precedent on which to base our decision. What we have as a foundation is a solid code of ethics that enables us to make decisions that are based on the wellbeing of our customers. We involve the customer as far as possible and document these concepts in an ongoing process of informed consent. As consultants, we are constantly evolving and the pandemic is teaching us how adaptable we are.
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Donna S. Sheperis is a Licensed Professional Consultant, Nationally Certified Consultant and Recognized Clinical Director. She is Professor of Counseling at Palo Alto University and has private practice. She was a member of the ACA Ethics Committee and the ACA Ethical Appeals Committee and authored publications in the field of advisory ethics. Contact them at [email protected].
Ann Ordway holds a doctorate in law and is a nationally certified consultant. She is a faculty member at the University of Phoenix and a lawyer specializing in family law. She has made several publications and presentations in the field of advisory law and ethics. Contact them at [email protected].
Michael Kocet is a licensed mental health advisor, a nationally certified advisor, and a recognized clinical supervisor. He is Professor and Chair at the Chicago School of Professional Psychology. He was a member of the ACA Ethics Committee and the ACA Ethics Code Revision Task Force and has authored several publications in the field of advisory ethics. Contact him at [email protected].
Mary Hermann holds a doctorate in law. She is an associate professor at Virginia Commonwealth University and an attorney. She was a member of the ACA Ethics Code Revision Task Force and has made several publications and presentations in the field of law and ethics of advisors. Contact them at [email protected].
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It should not be assumed that opinions or statements in articles appearing on CT Online represent the opinions of the editors or guidelines of the American Counseling Association.
