Running Head: KNOW THE LAW

Know the Law

Andrew Stegenga

Department of Counseling, Wake Forest University

CNS 780: Professional, Ethical, and Legal Issues in Counseling

Dr. Isabel Farrell

March 28, 2021

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Introduction

In order for counselors to work most effectively with their clients in an ever-evolving

mental health care environment, it is pertinent that they not only fully understand their code of

ethics, but also comprehend applicable laws in the state they are practicing in. In an effort to

expand my understanding of these components, I have decided to research the law related to my

own state of North Carolina. The purpose of this paper is to research and report the finding of

NC law in regard to 1) Confidentiality and privileged communication 2) Duty to protect/warn

and 3) both the duty to and process to report the abuse of a child, elder, or disabled adult.

Confidentiality and Privileged Communication

Confidentiality is a core concern for counselors, as it provides an atmosphere of comfort

and trust that aids in forming the therapeutic alliance, though a competent counselor should

know the bounds of confidentiality. North Carolina General Assembly (N.C.G.S.) § 122C covers

Clients’ Rights and Advanced Instruction. It states that clients have the right to confidentiality,

denoting that information obtained through the course of treatment is not considered public

record, cannot be disclosed by individuals with knowledge of the information, nor can it be

disclosed by facilities, though there are some exceptions (N.C.G.S. § 122C-52). Exceptions

include releasing information under the direction of the client (N.C.G.S. § 122C-53), for the

purposes of facilitating treatment (N.C.G.S. § 122C-55), as a result of a subpoena (N.C.G.S. §

122C-54), for research and planning (N.C.G.S. § 122C-56), and regarding the use of security

cameras in treatment facilities (N.C.G.S. § 122C-56.1). According to North Carolina General

Assembly (N.C.G.S.) § 8-53 (Communications between psychologist and client or patient)

Information is considered privileged when disclosed during a psychological session and is

essential to the continuations of the services rendered. This privileged communication does not
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prevail in instances where it is ruled that disclosure is necessary for “proper administration of

Justice” (N.C.G.S. § 8-53). When abuse of children, elders, or disabled adults becomes know, the

communication may be disclosed.

The ACA Code of Ethics also provides guidelines and considerations of client rights

when it comes to confidentiality: A.1a primary Responsibility, A.1.b. Records and

Documentation, A.2.a. Informed Consent, A.7.b Confidentiality and Advocacy, B.1.c. Respect

for Confidentiality, B.1.d Limitations, B.2.e Minimal Disclosure, B.3.c. Confidential Settings,

B.6.b Confidentiality of Records and Documentation, B.7.b. Disclosure of Confidential

Information, and H.2.b. Confidentiality Maintained by the Counselor (ACA, 2014). Following

the standards set by the ACA Code of Ethics will allow counselors to set appropriate boundaries

at the beginning of the relationship, which will help if the need to make a difficult decision were

to arise.

Duty to Warn/Protect

North Carolina is one of four states that does not have an established Tarasoff styled duty

to warn or duty to protect, that is to say, that a counselor does not need to warn an individual that

may be in danger from their client ("Mental Health Professionals’ Duty to Warn", 2018). A case

that set this precedence was Gregory v. Killbride (2002), where Dr. Killbride released a patient

from involuntary commitment. This patient had made numerous threats to kill his wife and

himself and did so upon his release. The courts determined that there was no duty for a

psychiatrist to warn third parties. There is an exception to this which was determined with David

v. NC Department of Human Resources (1995), which exclaims that a duty to warn exists for an

institution that possesses control over a client or patient that has been involuntarily committed to

avoiding harm to self or others.

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Along with understanding the implications of standing law, counselors need to be aware

of their own ethical code to help guide their decision to the best possible outcome. While NC law

does not explicitly state a duty to warn and/or protect, the American Counseling Association’s

Code of Ethics sets forth guiding principles that emphasize beneficence and nonmaleficence, that

is to say, working for the best outcome for the client and society and avoiding actions that could

cause harm. The professional principles serve as a broad indicator of the ethical principles found

within the code, therefore, we see these values enshrined in specific entries, such as A.1.a

Primary Responsibility, A.4.a. Avoiding Harm, B.1.d Explanation of Limits, B.2.1. Serious and

Foreseeable Harm and Legal Requirements, and I.1.c. Conflicts Between Ethics and Laws

(ACA, 2014). If a counselor is in a position where they are debating whether or not to warn

someone of a potential threat, these specific principles are good to keep in mind, though the full

ethical code should also be consulted to ensure the best decision is chosen.

Procedures for Reporting Abuse or Neglect

Reporting actual or suspected abuse or neglect is taken seriously in North Carolina, as it

is in every other state. While not everyone is obligated to report abuse or neglect, everyone has a

duty to report evidence when discovered, with that said, there are individuals that are mandated

to report – counselors are one of them. NC mandates suspected abuse, neglect, or exploitation of

minors, elders, and disabled adults as set forth by the North Carolina General Assembly

(N.C.G.S.) § 7B-301 (Juvenile Code) and § 108A-101 (Protection of the Abused, Neglected or

Exploited Disabled Adult Act) respectively.

Definitions are important for understanding the bounds of the law, though they quickly

take on a lengthy nature, therefore, I will only discuss a few of the most pertinent definitions.
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“Abuse” is defined as the potential for grave and potentially long-lasting consequences

resulting from either intentional or permissible harm by a caretaker. This covers various

forms of abuses, such as physical, emotional, and sexual abuse.

“Neglect” can take on various forms and therefore has a relatively vague definition. It

generally refers to caretakers failing to provide children, elderly, or disabled persons the

proper health or remedial care, supervision, or appropriate home environment. It can

include child abandonment, punishment that is incongruent to the transgression of the

child, elderly, or disabled adult (leaving the dependent out in the cold for hours because

they were bothersome), as well as illegal adoption of a child.

“Caretaker” describes an individual that has assumed responsibility of the child, elderly,

or disabled adult through family, voluntarily, or through contractual means.

The process for reporting confirmed or suspected cases of abuse or neglect is outlined in

(N.C.G.S.) § 7B-301, which states that any case of suspected abuse or neglect of a child or that

of which resulted in the death of a child, should be reported to the Director of Social Services in

which the suspected victim is a resident of. Reports can be made in various forms, such as

written, oral in person, or oral over the phone. The creator of the report has the right to remain

anonymous, which will not hinder investigation into the abuse. While the information included

in the report will vary depending on the knowledge of the reporting party, it will generally

include basic demographic information of the child, other children in the home, and caretaker

(names, ages, and relationship to one another), geographic information (home address and/or

current whereabouts), and details regarding the nature of the suspected abuse. If a mandated

reporter with knowledge of abuse or neglect willfully or carelessly fails to report the abuse, they

may receive a Class 1 misdemeanor as a result.

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Conclusion

Counselors should be are of the ethical codes they are bound to, as well as the laws in the

state in which they are practicing in order to exercise as a competent counselor, this includes

having a thorough understanding of 1) Confidentiality and privileged communication 2) Duty to

protect/warn and 3) both the duty to and process to report the abuse of a child, elder, or disabled

adult. The client has a right to confidentiality, though there are notable exceptions, such as client

discretion, court proceedings, the continuation of treatment, threats of harm, and evidence of

abuse. North Carolina does not have a law for duty to warn/protect, though possesses an

exception for facilities. It is still pertinent for counselors to consider the ACA code of ethics

when facing situations involving threats of harm. Abuse and Neglect of children, elders, and

disabled adults is seen as a ‘duty’ for all residents of North Carolina but is only mandated for

select professions, which includes the counseling profession. Reports should be made to the

Director of Social Services in the victim’s county and the report should contain pertinent

information regarding the abuse. Failing to report abuse and neglect can result in a misdemeanor.

It is important to keep this knowledge in mind when operating in a professional capacity in North

Carolina in order to be a competent counselor.

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References

American Counseling Association. (2014). 2014 ACA code of ethics.

https://www.counseling.org/docs/default-source/default-document-library/2014-code-of-ethics-

finaladdress.pdf

Davis v. N.C Department of Human Resources, 121 NC App 105, 112, 465 S.E. 2d 2, 12 (1995)

Gregory v. Kilbride, 150 NC App 601, 565 SE 2d 685, (2002)

Mental Health Professionals’ Duty to Warn. (2018). Retrieved 27 March 2021, from

https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

North Carolina General Assembly. (2012). General Statute 122C. Retrieved March 27, 2021

from:

https://www.ncleg.net/enactedlegislation/statutes/html/byarticle/chapter_122c/article_3.html

North Carolina General Assembly. (2013). General Statute 7B-301. Retrieved March 27, 2021

from:

https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-

301.html

North Carolina General Assembly. (2013). General Statute 8-53. Retrieved March 27, 2021

from: https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_8/GS_8-

53.3.pdf

North Carolina General Assembly. (2015). General Statute 108A-101. Retrieved March 27, 2021

from:

https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_108A/Article_6.pdf