7.11 Legal Implications
Counselors and their records can be subpoenaed into court. This may be especially applicable when clients are mandated to receive treatment, when clients have a legal history, when custody agreements are involved when evaluating a person’s mental functioning, etc. We return to a discussion on client privilege, which gives clients the legal right to their private information and decision power on how it is used. Therefore, counselors take steps to protect client confidentiality and privilege. If a counselor receives a court order to disclose client information, they pause and engage in an ethical decision-making process with the client’s well-being at the forefront. They must consider the source of the disclosure. Counselors are not legally required to respond to court orders from a lawyer, and they discuss these orders with their clients. If the order comes from a presiding judge, they should consult a legal team. Additionally, counselors are responsible for knowing the ethical codes (Included below; ACA, 2014; NAADAC, 2021) and legal guidelines for disclosure to the legal system.
Regardless, ethical practice entails informed consent from the client about the court order and how they wish to proceed. Counselors only disclose information to courts with the client’s verbal and written consent as a release of information. If clients decide to block the disclosure, counselors respect clients’ wishes and advocate for their right to privacy. In these cases, they should also consult with peers, leaders in their agency, ethics committees, and a lawyer specializing in counseling ethics to guide ethical decision-making on breaching confidentiality for legal purposes. Counseling and legal fields inherently have different goals and motivations, and counselors diligently advocate for their client’s welfare and rights to privacy and confidentiality.
The ACA (2014) discusses court-ordered disclosure:
“When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of the potential to the client or counseling relationship” (Standard B.2.d.).
NAADAC (2021) also highlights how addiction counselors should interface with the legal system:
“Addiction professionals who are ordered to release confidential and/or privileged information by a court shall obtain written, informed consent from the client, shall take steps to prohibit disclosure, or shall have the disclosure limited as narrowly as possible because of potential harm to the client or counseling relationship” (Standard II-9).