Medical malpractice claims may be asserted against any healthcare provider, including counselors. The insured counselor in this case was a licensed professional counselor (LPC) who had been practicing for more than fifteen years in private practice at the outset of this matter.
Summary
The clients in this case were a husband and wife seeking marriage counseling. The LPC initiated joint sessions as well as individual therapy for both after obtaining informed consent. During the informed consent process, the LPC emphasized her commitment to maintaining objectivity and preserving the confidentiality of the individual sessions. After several months of counseling, the couple concluded that their marital issues were irreconcilable and proceeded with divorce. Despite the separation, both individuals chose to continue individual therapy with the LPC. The LPC recognized that this transition from couples counseling to individual therapy represented a shift in her professional role, necessitating a realignment of therapeutic goals to address each client’s individual needs. However, she did not believe that a revised informed consent discussion was required at that time.
The couple had a six-year-old daughter who primarily resided with the husband since the couple separated, as his residence was closer to the child’s school. As the divorce proceedings advanced and tensions between the parties escalated, the wife expressed her intention to seek sole custody. She voiced concerns to the LPC about the husband’s parenting, citing incidents of angry outbursts in the child’s presence and expressing fears for the child’s safety. The wife also indicated her willingness to relocate closer to the school to enable the child to live with her. During a subsequent counseling session, she informed the LPC of an upcoming emergency custody hearing and requested a letter of support for her custody petition. She also shared text messages from the husband that included angry and inappropriate language to support her concerns. Although initially reluctant to become involved in the legal matter, after viewing the text messages, the LPC agreed to send a letter to the wife’s divorce attorney recommending that custody be awarded to the wife and that the husband’s visitation be supervised. The LPC maintained that the contents of the letter were based solely on information obtained from the wife and her counseling file. Following the hearing, the court granted temporary full custody to the wife. After an extended custody dispute and multiple court proceedings, a year later, custody was ultimately modified to a joint arrangement, allowing the parties to establish a shared visitation schedule.
Risk Management Comments
One month after the final court ruling granting joint custody, the husband (plaintiff) filed a lawsuit against the LPC, alleging breach of confidentiality and negligent counseling. He claimed that the extended loss of custody and limited contact with his daughter caused him significant emotional distress and negatively impacted their relationship. The plaintiff’s legal theory, supported by expert testimony, was based on the assertion that a counselor-client relationship existed between the husband and the LPC, and that no consent had been obtained to disclose any information about him to a third party. Furthermore, there was no court order or subpoena requiring the LPC to provide information related to the custody proceedings. The plaintiff’s attorney argued that, in the absence of objective evidence indicating the child was in danger, the exception to confidentiality did not apply.
While the defense team acknowledged the LPC’s well-intended motives and her assertion that the custody letter was based solely on information obtained from the wife, they were unable to secure expert testimony in support of her actions. Defense experts raised ethical concerns regarding the LPC’s continued treatment of both parties amid a highly contentious divorce and custody dispute, particularly in relation to confidentiality and the appropriateness of providing a custody recommendation. One expert LPC concluded that the available records did not provide sufficient evidence to justify the claim that the child was in imminent danger. The expert also noted that the text messages submitted by the wife could be considered hearsay and potentially inadmissible in court. Although it is ethically permissible for a counselor to treat both individuals in couples counseling as separate clients, the expert emphasized that doing so complicates the ability to objectively distinguish between information obtained from each party. Ultimately, the expert concluded that the LPC should not have issued a custody recommendation under these circumstances.
The LPC’s defense team presented a causation argument. They contended that there were other letters and evidence submitted during the custody proceedings that would have independently led to the same custody outcome, thereby asserting that the LPC’s letter was not the proximate cause of the court’s decision.
Resolution
Confidentiality is the cornerstone of the counselor-client relationship, protected by ethical codes of conduct and legal statutes. The defense team ultimately concluded that the LPC owed a duty of confidentiality to both the husband and the wife, and that a breach of this duty had likely occurred, resulting in emotional distress to the plaintiff. Moreover, the potential to mitigate damages appeared uncertain. A key component of the defense’s case evaluation was the likelihood that the plaintiff’s expert could persuade a jury that the LPC’s decision to issue a custody recommendation constituted a breach of the professional standard of care. Given the ethical concerns raised, the absence of expert support for the LPC’s actions, and the risks associated with proceeding to trial, the defense elected to resolve the matter through mediation and reached a settlement. The total incurred to defend and settle this matter on behalf of the insured counselor was greater than $180,000.
Risk Control Recommendations
- Adhere to professional standards, ethical guidelines, and applicable state and federal laws when addressing confidentiality issues with clients. The 2014 ACA Code of Ethics outlines several key responsibilities:
- Confidentiality and Disclosure: Counselors are required to protect client confidentiality and may only disclose information with proper consent or when legally mandated (Standard B.1.c).
- Informed Consent and Exceptions: At the outset of counseling, clients must be informed of situations where confidentiality may be breached—such as when there is a foreseeable risk of harm to self or others. These discussions should be documented, and clients should sign statements acknowledging their understanding of these exceptions (Standard B.1.d).
- Consultation: When there is uncertainty about whether an exception to confidentiality exists, counselors should consult with other counseling professionals (Standard B.2.a).
- Court-Ordered Disclosures: When disclosure is required by a court order, counselors should seek written client consent whenever possible and limit the disclosure to only what is necessary to comply with the legal request (Standards B.2.d and B.2.e).
- Multiple clients: Consider referring clients when a potential conflict of interest arises. Counselors must clearly define who they consider “the client (s)”, the nature of the relationship (s), and discuss confidentiality expectations with all parties, when providing services to two or more individuals who are in a relationship. (Standard B.4.b). All parties must agree to the structure of the therapeutic relationship, including whether disclosures in individual sessions may be shared in couple’s sessions.
- Conduct updated informed consent discussions and obtain written consent when changing roles from family/marriage counseling to individual therapy or from a therapeutic role to an evaluative one, e.g. court-appointed expert (A.6.d)
- Avoid making custody recommendations or conducting forensic evaluations for clients involved in custody disputes, as doing so may compromise objectivity and ethical boundaries. (Standard E.13.c)
- Maintain confidential client session documentation in a protected manner as part of the client's clinical record throughout the duration of the client's course of therapy/treatment and until the statute of limitations for litigation has expired. Note that the use of e-mail, texting, or other forms of communication related to client care may be discoverable in the event of administrative action or litigation.
- Review the ACA Code of Ethics at least annually and recognize the professional obligation to uphold the code.
- Practice in accordance with the standard of care, limits of one’s license/certification and all regulations.
References
- American Counseling Association. (2014). ACA Code of Ethics. Retrieved on 7/10/25 from https://www.counseling.org/resources/ethics
- Theresa Mignone,et.al, "Confidentiality and Family Therapy: Cultural Considerations" ARC Journal of Psychiatry. 2017;2(1):9-16.
Disclaimer
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