Legal and ethical issues in school counselor supervision. (Special issue: legal and ethical issues in school counseling).

Today's school counselors deal routinely with complicated situations in which students have acute counseling needs, including cases of severe depression and suicidal ideation, pregnancy, substance abuse, school violence, and child abuse (Page, Pietrzak, & Sutton, 2001). To respond adequately to these needs, counselors must have both strong clinical skills and a keen awareness of the legal and ethical ramifications of any actions they may take or fail to take. These mandates are particularly challenging when school counselors are isolated in their settings or are so burdened with clerical and administrative tasks that they are unable to adequately address the counseling needs of the students they serve. School counselors in these situations may feel stressed and overworked and may be experiencing professional burnout. As a consequence, they can become unsure of their abilities and effectiveness and may experience erosion in their skills and competence (Crutchfield & Borders, 1997). This process runs counter to their ethical responsibility to maintain and increase their competence (American Counseling Association [ACA] 1995, Section C.2.) When school counselors fail to practice competently, this can become a legal problem as well as an ethical issue, because a malpractice lawsuit could result.

Supervision can be an effective means of assisting school counselors to maintain and enhance their competence. Supervision can provide opportunities for continuing clinical-skill development, ongoing consultation regarding legal and ethical issues, and a professional support system that can mitigate against stress and burnout. According to Remley and Herlihy (2001), two types of supervision are generally discussed in the literature: clinical supervision and administrative supervision. Supervision that focuses on the development of counseling skills is known as clinical supervision. Within the counseling profession in general, clinical supervision has come to be recognized as essential to the continuing professional development of practitioners. The primary purpose of clinical supervision is to enhance the competence and increase the counseling skills of the counselor who is being supervised. Unfortunately, however, this is the type of supervision that school counselors are least likely to receive.

A second and more readily available type is administrative supervision, which is usually provided by the building principal or other administrator and is focused on compliance with school requirements and accountability (Crutchfield & Hipps, 1998). Administrative supervision occurs when a direct-line administrator provides direction to a counselor who is an employee. Administrative supervisors usually have direct control and authority over the counselors they supervise (Remley & Herlihy, 2001). Administrative supervisors face somewhat different legal issues than do clinical supervisors, because the purposes of administrative supervision are different and the law treats the two types of supervision differently (Remley & Herlihy).

In this article, we first describe the current status of school counselor supervision. This provides a context in which ethical and legal issues encountered in supervision of school counselors are examined. Although clinical supervision is the primary focus of our discussion, we also address ethical and legal issues that commonly arise in administrative supervision.

Current Status of School Counselor Supervision

As we have noted, although administrative supervision is widely available, the need for clinical supervision in school counseling has gone largely unmet. In a recent national survey, Page et al. (2001) found that only 13% of school counselors were currently receiving individual clinical supervision and only 10% were receiving group clinical supervision. Nonetheless, there is empirical support for the efficacy of clinical supervision for school counselors. Positive results have been reported, including enhanced effectiveness and accountability, improved counseling skills, encouragement of professional development, and increased confidence and job comfort (Agnew, Vaught, Getz, & Fortune, 2000; Benshoff & Paisley, 1996; Borders, 1991; Crutchfield & Borders, 1997).

One reason clinical supervision has been a neglected issue in school counseling may be a perception that school counselors do not have the same level of need for supervision as do clinical mental health counselors. School administrators, in particular, may continue to perceive the school counselor's role as being focused primarily on such activities as academic advising, scheduling, psychoeducation, and group guidance. School administrators may see clinical supervision as a less-than-useful reason for taking school counselors away from their time spent in such direct service to students (Crutchfield & Borders, 1997). To the extent that this is the case, little impetus will be generated by the administrative supervisors of school counselors to arrange to provide them with clinical supervision.

School counselors themselves may not feel a need to receive clinical supervision. Fully one third of the school counselors surveyed by Page et al. (2001) indicated that they had no need for supervision. In addition, school counselors who are unaccustomed to having their work scrutinized may resist any attempts to institute supervision of their work (Henderson & Lampe, 1992). Assisting school counselors to see the need for ongoing clinical supervision of their work is a challenge deeply embedded in what school counselors perceive to be their role, based on the expectations of administrators, teachers, parents, and students (Hardesty & Dillard, 1994). Poorly defined counselor roles and unclear professional identity contribute to the lack of significance placed on clinical supervision of school counselors. Duties that school counselors perform have become a hodge-podge of activities chosen, assigned, or added by happenstance. As a result, many school counselors see their skills as adequate because few of their daily tasks involve clinical work. They may also see supervision as an additional responsibility for which there is no time.

A final factor that may help to explain the dearth of clinical supervision for school counselors is that, in most jurisdictions, post-master's degree supervision of school counselors has not been mandated. This stands in marked contrast to licensed professional mental health counselors who typically must complete 2,000 to 3,000 clock hours of post-master's supervised experience in order to receive licensure.

In summary, the current status of supervision in school counseling is far from ideal. Administrative supervision is usually available, but clinical supervision is much less likely to be provided to school counselors. In this context, we turn our discussion to ethical and legal issues that arise in school counselor supervision. These issues include competence to supervise, confidentiality, relationship boundaries, accountability and liability, and evaluation of performance.

Ethical and Legal Issues

Competence to Supervise

According to the ACA (1995) Code of Ethics, counselors who offer clinical supervision services must be "adequately prepared in supervision methods and techniques" (Standard F.1.f.). A major problem in adhering to this standard in school counseling is a lack of qualified supervisors. Due to the shortage of school counselors who have received formal preparation in supervision, supervision may be provided by other mental health professionals such as licensed community mental health counselors, psychologists, or clinical social workers. Although this type of cross-discipline supervision is not uncommon (Campbell & Herlihy, 2002), these supervisors may not have expertise in play therapy or other techniques of counseling children and adolescents. They may not have a full understanding of the school counselor's setting or the developmental needs of student clients. These differences may limit the effectiveness of the supervision.

Similar difficulties can arise in administrative supervision, when it is provided by a school principal or another administrator. Some administrators may not clearly understand the role and functions of the school counselor or the ethical standards that school counselors are committed to honoring.

Some school districts have counseling department heads, lead counselors, guidance directors, or guidance consultants. When this is the case, the task of providing clinical supervision often falls on their shoulders. In most cases, however, lead counselors in school districts have not had specialized preparation in counselor supervision; rather, they hold that position based on their own performance as counselors (Henderson & Lampe, 1992). If they supervise school counselors, they may be practicing outside their scope of competence, which would constitute a violation of ethical standards (ACA, 1995, Standard C.2.a.). Supervisors without preparation in clinical supervision are more likely to concentrate on the administrative and programmatic aspects of supervision and to shy away from the clinical aspects of enhancing counseling knowledge and skills (Nelson & Johnson, 1999).

Even when the clinical supervisor is appropriately prepared, the supervisor may not work at the same site as the counselor being supervised. Without direct observation of counseling performance, supervision may be limited to case consultation which has certain drawbacks. The success of case consultation depends on the supervisee's abilities to observe and conceptualize as well as the insightfulness of the supervisor (Bernard & Goodyear, 1998). Additionally, self-reporting can be subject to deception (Campbell, 2000). Case consultation, as the sole method of supervision, is generally thought to be a less effective means of fostering professional development (Campbell; Goodyear & Nelson, 1997).

The cycle of inadequate clinical supervision in school counseling can be perpetuated when universities place interns in schools and these interns receive their on-site supervision from school counselors who have had little or no formal education in supervision. These students are unlikely to receive the guidance that they need to maximize their performance and strengthen their professional development (Dye & Borders, 1990). Eventually, these inadequately supervised students become school counseling supervisors.

Confidentiality

Confidentiality issues with school-age children present a particular challenge in the process of school counselor supervision. The questionable nature of the legal rights of children further complicates the issue of confidentiality in schools (Remley, 1985). School administrators, acting according to their own legal and ethical codes, may be less likely than administrators in other environments to give permission to videotape or audiotape counseling sessions for supervision. Parental permission to tape needs to be acquired as well. Nevertheless, clinical supervisors may require counselors who are receiving supervision from them to share with them information concerning cases. Supervisors, in order to do their jobs effectively, may need to listen to audiotapes of counseling sessions, review case notes or other client records, and learn specific details of cases that may necessitate the revelation of client identity. School counselors recognize the importance of maintaining confidentiality to develop student trust, and thus may be reluctant to share information. They may not realize that, generally, sharing confidential and privileged information with professionals who have a need to know that information for supervision purposes is acceptable practice and does not destroy legal privilege (Cleary, 1984).

From a legal perspective, because school counselors generally do not choose their supervisors, they would not likely be held accountable if a supervisor were to disclose information inappropriately to third parties such as administrators or teachers. However, school counselors do have an ethical obligation to address concerns they may have about a supervisor who makes an unwarranted disclosure. If the supervisor has direct authority over the counselor, this can be difficult because the counselor is in a vulnerable position. If possible, the best course of action is to try to address the concerns directly with the supervisor involved. If a direct approach is not feasible, or if it is attempted and does not successfully resolve the concern, then it may be necessary for the counselor to consult with the supervisor's administrative supervisor.

Boundaries of the Supervisory Relationship

The Code of Ethics (ACA, 1995) cautions counselors to avoid dual relationships with clients that could impair their objectivity and professional judgment. Managing dual relationships with clients is generally not as problematic for school counselors, whose clients are minor children, as it is for counselors in some other settings. However, dual relationships can arise in the supervisor-supervisee dyad when supervisors serve in more than one role with their supervisees, such as serving as both administrative supervisor and clinical supervisor. Whenever possible, it is preferable that these roles be divided between two supervisors. Ideally, an administrator would provide the administrative supervision while a counselor with expertise in supervision theories and techniques would provide the clinical supervision. Dual roles cannot always be avoided, however. In these instances, the supervisory relationship must be carefully managed due to the power differential that exists between the supervisor and supervisee. Supervisors, because of the evaluative function that is part of their job responsibilities, have considerable power in the relationship.

The Standards for Counseling Supervisors (Association for Counselor Education and Supervision, 1990) caution supervisors not to engage in social contacts or interactions that would compromise the supervisory relationship. Because supervisors share professional interests with their supervisees, they are likely to encounter the counselors they supervise at various workshops or other professional functions. They should not develop friendships or socialize routinely with their supervisees, however, as such relationships would make it difficult if not impossible for the supervisor to complete an objective evaluation (Remley & Herlihy, 2001). When lead counselors in a school or school district supervise their professional peers, they may find it very difficult to adhere to these ethical guidelines.

Another form of boundary violation that can cause problems in a supervisory relationship occurs when a supervisor establishes a therapeutic relationship with the supervisee as a substitute for supervision. The Standards (ACES, 1990) direct supervisors to address personal issues in supervision only in terms of the impact of these issues on professional functioning. Supervisors must maintain a delicate balance, addressing personal issues when they interfere with the supervised counselor's effectiveness by helping the counselor identify and understand the issues involved, but without allowing the relationship to slide beyond appropriate boundaries into a therapeutic relationship (Remley & Herlihy, 2001). Counselors who provide clinical supervision without having acquired knowledge of how to manage the teaching, counseling, and consultative roles played by supervisors may have difficulties in maintaining this crucial balance.

Accountability and Liability

Administrative supervisors need to be cognizant of issues of vicarious liability. Administrative supervisors or employers have direct control over the actions of the counselors they supervise and must take necessary steps to limit this liability. Initially, the supervisor must be judicious in the hiring of the prospective employee to ensure that the person demonstrates clinical competence and proper decision making. Checking references and running criminal background checks will benefit this process.

Once the hiring decision has been made, it is the administrative supervisor's duty to provide the new employee with school rules and regulations. A job description that provides all this information can be extremely valuable to both the supervisor and the counselor/supervisee. The supervisor should also discuss with the new employee the school's expectations concerning adequate performance. Once the counselor's duties begin, it is the supervisor's duty to monitor the supervisee's actions. If the supervisor finds that the counselor is not performing adequately, proper documentation and evaluation must be provided. As another safeguard, supervisors should always acquire professional liability insurance for protection against any negligence on the part of the supervisee that may be beyond the supervisor's control (Remley et al., 2001).

In contrast to administrative supervisors, clinical supervisors are not directly responsible for counselors' actions because they do not have hiring or firing authority. However, they should follow certain steps to limit their liability. First, they should present supervisory activities in the context of education as opposed to control. When discussing clinical cases, supervisors should not give directives; rather, they should provide guidance. Supervisors should clarify their role to the supervisee and others involved (such as the principal or director of guidance) through discussion and written documents signed by both parties. When clinical supervisors are not on site, they should instruct their supervisees to follow on-site supervisor directives at all times and to contact them in the event of an emergency. Clinical supervisors should not interfere with an administrative supervisor's authority over the counselor (Remley et al., 2001).

An example of vicarious liability may occur in a situation in which the counselor's administrative supervisor is deferring to the clinical supervisor regarding decisions that arise in counseling students. If the clinical supervisor lacks knowledge of school policy, the supervisor might advise the counselor to make a decision that violates established rules for dealing with student issues. For instance, the supervisor might direct the counselor to inform child protection services directly in an abuse case instead of first informing the principal. If this violates school policy, the counselor might be reprimanded or even fired by the administrator.

Evaluation

Fair evaluation deals with supervisees' rights, specifically their right to be protected from administrative decisions that affect them unfairly (Remley & Herlihy, 2001). An extreme example of inappropriate evaluation would occur when a school counselor is dismissed from a job without receiving feedback in advance concerning inadequate performance. Administrative supervisors can limit their legal liability in this area by consistently providing the counselors they supervise with feedback and by providing opportunities for the counselors to correct mistakes (Remley & Herlihy). A written job description is an excellent format to specify what is required of the counselor who is being supervised. When the administrative supervisor notes a deficiency in the counselor's performance, the supervisor should describe specifically what constituted the negative performance and what behaviors will lead to improvement (Bernard & Goodyear, 1998). Although administrative supervisors may feel comfortable evaluating whether their counselors are complying with school policies and procedures, if the supervisors are not counselors themselves, they may not have sufficient knowledge of counseling to evaluate the employee's clinical performance. In the absence of any clinical supervision, school counselors may not be receiving any feedback or assistance in improving their clinical skills and any deficiencies in clinical performance may go undetected.

Evaluation is an integral component of clinical supervision as well. Counselors who serve as supervisors are often uncomfortable with their evaluative roles because they were trained first in the more nonjudgmental role of counselor (Bernard & Goodyear, 1998). Nonetheless, they cannot allow their discomfort to interfere with their obligation to provide their supervisees with ongoing formative evaluation. Clinical supervisors should thoroughly discuss the evaluation process and procedures with their supervisees at the outset of the supervisory relationship, to avoid later misunderstandings. The ultimate goal of clinical supervision is to help supervisees develop skills in self-evaluation that they will continue to use throughout their professional careers.

Recommendations

Few school counselors are currently receiving ongoing clinical supervision. Supervision can be an effective means of increasing their clinical competence, reducing the stresses inherent in their demanding roles, and helping them respond to the challenging ethical and legal issues they encounter. We conclude with the following recommendations for those who provide administrative and clinical supervision to school counselors:

1. If you are providing clinical supervision and have not completed specific course work (as a university-based, for-credit course or as continuing education), make it a high priority to do so. Thorough preparation will not only help to avoid ethical and legal pitfalls, but will help you to become a more effective supervisor.

2. To increase the pool of available school counselor supervisors, consider instituting a peer supervision program in your school district. Agnew et al. (2000), Benshoff and Paisley (1996), and Borders (1991) provided some excellent information on how to establish such a program.

3. Consider collaborating with counselor educators at nearby universities, if possible, to provide professional development in supervision to practicing school counselors. Combining the perspectives of counselor educators who received rigorous preparation in supervision as part of their doctoral studies with counselors who provide supervision and who understand the practical realities of the school counselor role and functions would maximize the efficaciousness of such professional development.

4. Work with school administrators to develop school policies that support school counselors in receiving supervision and consultation. Administrative support could include setting aside time during working hours for supervision, allowing counselors some flexible release time to travel to another school and meet with other counselors for supervision, and hosting peer supervision sessions at one's school (Crutchfield & Hipps, 1998).

5. Periodically review the codes of ethics of relevant professional organizations to ensure that you are aware of any changes in ethical standards. Participate in seminars and workshops that provide updates on law related to counseling and supervision.

6. Diligently protect the confidentiality of the student clients with whom your supervisee is working. If you review video- or audio-tapes, ensure that these tapes are erased when you and your supervisee have finished using them. Maintain any written records in a secure, locked file.

7. Maintain appropriate relationship boundaries with your supervisees. Remember that, even though you may consider the counselors you supervise to be peers, the supervisory relationship is hierarchical. Developing close friendships with supervisees is ill-advised because supervision has an evaluative component.

8. Before entering new supervisory relationships, explain to your supervisees specifically how their performance will be evaluated.

9. To protect yourself from legal liability, obtain your own professional liability insurance policy. Have an established plan for seeking legal counsel should it be needed.

Clinical supervision can be a powerful vehicle for fostering the professional development of school counselors. Providing school counselors with ongoing administrative and clinical supervision will help them be more equipped to continuously improve the services they provide to students, parents, and staff.

References

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Barbara Herlihy, Ph.D., is a professor in the Counselor Education Program at the University of New Orleans, LA. Neal Gray, Ph.D., is an assistant professor in the Department of Counseling and Educational Leadership at Eastern Kentucky University, Richmond. Vivian McCollum, Ph.D., is an associate professor in the Counselor Education Program at the University of New Orleans.