The insured was a licensed professional clinical counselor (LPCC) with more than 25-years of experience working with the state department of health to provide counseling services for foster care families. The LPCC was a sole practitioner of her practice and worked as an independent contractor through the state. Her focus and specialty involved counseling foster care children and adolescents with a history of abuse.
The LPCC had been counseling a 14-year-old female client (“the client”) for approximately eight months. Due to ongoing parental neglect by her mother, the client was well known to the foster care system and had been in and out of foster care most of her life. She had recently been placed in a home with a young couple who were new to the foster care system. The client was being followed by a multidisciplinary foster care team. Her history included physical, emotional, and sexual abuse by her mother’s boyfriends and close family members. She also expressed strong abandonment issues due to being left for months at a time with friends, neighbors, and anyone else who would agree to care for her.
During the counseling sessions, the client often reported that her anxiety and night terrors were worsening, but she stated that she enjoyed living with her foster parents and expressed that they cared for her. Based upon the client’s comments during the counseling session and notwithstanding her continued anxiety and night terrors, the LPCC believed that the client was currently in a safe, loving home environment.
The foster parents did not have children of their own, but had four other foster children in the home, all of whom were young teenage girls. While counseling one of the other foster care children who lived in the home, the child casually mentioned to the LPCC that the 14-year-old female client and the foster father spent a substantial amount of time together and often were alone. The insured LPCC attempted to obtain further details from the child about the relationship, but the child was evasive with her details and was not able to recall any specific examples of the two being alone. The LPCC had been counseling this child for several years and was aware that the child had made several accusations of being abused, all of which, upon investigation, were deemed to be false. Based upon this history, and the fact that the client had not conveyed any concerns, the LPCC did not report the foster child’s statements to the state case workers or document these interactions in the client’s healthcare information record. The LPCC later reported that, despite the client being satisfied with her current living conditions, she had been concerned that young foster parents requested to have only young teenage girls in their home.
Subsequently, the mother of the client (plaintiff) requested a meeting with the LPCC. During the meeting, the mother reported that her child (the client) had been in a sexual relationship with the foster father for the last five to six months. The LPCC admitted that she had a ‘gut feeling’ that something was going on, especially since another foster child in the home had made comments about the client and foster father spending time alone. The LPCC apologized several times for not questioning the client about the foster father in greater detail and not being more proactive with identifying red flags of abuse. Without the LPCC’s knowledge, the mother recorded the discussion, which she provided to the plaintiff’s attorney.
Immediately following the meeting with the mother, the LPCC contacted the client’s case worker. The case worker confirmed that the mother had reached out to her a few months ago and requested that the department conduct an investigation of potential abuse of her daughter. The case worker reported to the LPCC that an investigation had been ongoing, but that she failed to mention it to the LPCC. Initially, the case worker felt that the mother was just causing trouble. She stated that it wasn’t until the foster mother reported that she was divorcing her husband, and had her concerns about the possibility of abuse, that the case worker began an investigation in earnest. The investigation by the state health department found that three of the four teenage girls in the home were being sexually abused by the foster father.
The client’s mother subsequently filed a lawsuit against the state health department, each employee of the multi-disciplinary foster care team and the insured LPCC. Allegations against the insured LPCC included:
- Failure to be an advocate for the client (ACA Code of Ethics Section A.1.a. & A.7.a.)
- Failure to know and understand the state reporting statute (ACA Code of Ethics Section I.1.a.)
- Failure to report concerns of abuse according to the state reporting statute (ACA Code of Ethics Section B.2.a. & I.2.b.)
- Failure to promote the welfare of a client (ACA Code of Ethics Section A.1.a.)
- Failure to establish an appropriate counseling plan with client (ACA Code of Ethics Section A.1.c.)
- Failure to communicate concerns of client’s welfare to the appropriate party per organizational policies and procedures (ACA Code of Ethics Section A.6.b.)
Risk Management Concerns
The LPCC maintained that the allegations against her were false in all material respects. She stated that she was not provided with any information which would or should have created a reasonable belief that the client was being abused. She acknowledged that another child who lived in the home did refer to the foster father and 14-year-old female client being alone for extended periods of time. However, when questioned, the child was adamant that it was really nothing and she was probably just imagining it.
Defense counsel opined that the insured LPCC probably was not the primary object of the lawsuit, given that the information of enhanced risk was known to and temporarily disregarded by the case worker and others who had the major responsibility to keep the child safe.
The recording of the LPCC and mother’s visit, as well as the testimony of the mother and LPCC, were potentially damaging. In her testimony, the LPCC admitted that she had a “gut” feeling something was wrong.
The plaintiff’s expert was critical of the LPCC’s lack of documentation, especially regarding young clients with a history of abuse. The plaintiff’s expert testified that there were several times that the LPCC could have been more responsive and proactive during the sessions by asking questions such as, “Do you feel safe and secure? What do you think about the criticisms of your foster parents being young? Tell me if you feel uncomfortable about anything which is going on in your foster home.”
The case persisted for six years. Five months before the trial was to commence, the defense counsel for the state department of health communicated that they were unwilling to settle with the plaintiffs.
The defense team believed that this case was risky for the LPCC and wanted to pursue settlement negotiations with the plaintiff apart from the other co-defendants. The LPCC agreed with settling the case, as she did not wish to risk a trial. Prior to trial, the defense team was able to negotiate a settlement on behalf of the insured LPCC.
Upon resolution of the professional liability claim, the State Board of Licensed Professional Clinical Counselors (“the Board”) conducted its own investigation. The Board investigation noted a global failure in the LPCC’s practices of client documentation and raised concerns about the specific failure to report matters of potential abuse of the 14-year-old client to the required third party. The Board required the LPCC to complete five hours of continuing education on client documentation as well as five hours of education on state mandated reporting of abuse. The Board investigation lasted 18 months.
Total Incurred for the Professional Liability Claim: $970,000
Legal Expense Incurred for the Defense of the Board Matter: $5,000
(Monetary amounts represent the payments made solely on behalf of the insured counselor.)
Risk Control Recommendations
- Conduct and document a discussion with the client regarding information that may not be protected from release, including information relating to child endangerment/neglect/abuse, danger to self or others, and court-ordered disclosures. Obtain signed statements that the client understands these exceptions to privacy and confidentiality protections.
- If a report to a third party is necessary, counselors should be accurate, honest and objective in their reporting.
- Understand all laws or regulations that govern client interactions. Ignorance of the law, employer policy or professional ethics does not absolve the counselor of the responsibility to act within established clinical, ethical and regulatory guidelines.
- Practice in accordance with the standard of care, limits of one’s license/certification, and all regulations and ethical guidelines. Seek peer review and/or clinical supervision, as needed, and actively participate in continuing education programs related to evolving ethical issues.
- In a situation of serious or foreseeable harm to a client or identified others, the general requirement of confidentiality may not apply. Counselors should review the 2014 ACA Code of Ethics, as well as state and federal reporting requirements, and develop a policy as to the application of legal requirements to the release of confidential information.
- Review the ACA Code of Ethics at least annually and recognize the professional obligations to uphold the code.
- Respect the dignity and promote the welfare of all clients. Counselors are obligated to serve as a client advocate and should address potential barriers and obstacles that may inhibit access and/or growth and development of a client.
- Behave in an ethical and legal manner. Counselors should be aware that client welfare and trust in the profession depend upon a high level of professional conduct (2014 ACA Code of Ethics, Section I).
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
- American Counseling Association (ACA). (2014). ACA Code of Ethics. https://www.counseling.org/resources/aca-code-of-ethics.pdf
- Kenny, M. C., Abreu, R. L., Helpingstine, C., Lopez, A., & Mathews, B. (2018). Counselors’ mandated responsibility to report child maltreatment: A review of US laws. Journal of Counseling & Development, 96(4), 372-387.
- Wade, M. E. (2015). The counselor’s duty to report. Counseling Today. https://www.counseling.org/docs/default-source/ethics/ethics-columns/ethics_february_2015_duty-to-report.pdf