What is the Federal law and State Law on sexual misconduct between counsellors and clients, past and present?
Hello and thanks for your question.
Could you please elaborate on the circumstances and how they apply to you so that I can identify the specific laws will apply to your situation?
According to the Counselling code of ethics, a counsellor should not enter into a dual sexual relationship with current clients. But can enter into a sexual relationship after two years since Counselling ended.I would like to know what are the penalties for the counsellor if this is not adhered to?
Sorry, but I need for you to explain the nature of the counseling, the problems it was addressing, and the circumstances of the patient (age, etc). It would also assist if you could identify the name of the organisation or private practice involved.
The way problems are dealt with and the consequences can vary greatly depending on such details so I need such information to properly assist you.
I am currently a student in Counselling, so this is all imaginary. It does not really matter what the nature of the Counselling was, who the client was or which agency.It is about the ethics surrounding the profession. It will help if you can possibly give me the penalties of a case study of two where counsellors were involved in sexual relationships with: a) current clients and b) past clients.The reality is that this does happen from time to time. Are there any fines involved? Or even prison sentences? Or do counsellors just loose their registration? Or do they get suspended for a period of time?Examples of past cases will be most helpful.
For a prison sentence to apply the conduct would have to amount to a crime so provided the sexual relationship was consensual and otherwise legal, it will not generally be a criminal matter.
Generally breaches of ethics codes can result in disciplinary action varying from orders for further education on ethics, suspension of the right to practice, or a permanent ban on the right to practice. It will depend greatly on the circumstances. Fines are less commonly applicable, however breaches of a code of ethics often indicate a liability to pay compensation to affected parties, and the cost of defending disciplinary proceedings can be considerable.
The reason I need to understand the type of counseling involved is because many people in many roles call themselves counselors. There are marriage counselors under the Family Law Act, various social service counselors, and some are psychologists and some are not. Some roles are regulated, and some are not. In an unregulated role there is no licensing regime and generally no body which can enforce disciplinary action. If you can explain the type of role your course is preparing you for, then I may be able to refer you to the relevant body responsible for policing such counselors, and in turn may be able to refer you to relevant records of disciplinary proceedings.
If you are aware of which body polices your contemplated counseling work, please advise.
I trust the above assists your understanding.
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Thank you for your answer. Some of it already answered my question (in terms of unregistered counsellors). The regulating body state-wide is PACFA and in WA is PACAWA. Registered counsellors in WA will fall under both bodies.I would appreciate relevant records of disciplinary procedures.As well, what would the penalties be if it is consensual at the time, but it breaks down later and the counsellor is sued by the client?
I am still waiting for an answer on my last reply.
Neither PADFA nor PACAWA are a regulatory body and do not license counselors, so you do not need to be a member to act as a counselor (though some, perhaps most roles and employers may require PADFA/PACAWA membership). Rather these are associations which many counselors presumably join for the various benefits which it offers members (membership is likely seen as confirmation of competence). They are essentially an exclusive 'club' for counselors.
They both have a Code of Ethics which is not legally enforceable in the way that the law is enforceable, but it does have a complaints and disciplinary process which applies to members who do not comply with the Code of Ethics, and PACAWA's ethics committee can hear complaints by the public. Members can have their membership suspended or canceled, or alternately continued membership may be made dependent on compliance with various conditions (such as further ethics training).
Because the club is a private organisation, there is no obligation on it to make public its disciplinary processes or rulings and it does not appear that there is any database of such rulings which I can refer you to. I did make a brief search for any sign that such disputes had been referred to the courts for determination and found one similar case (though from Victoria) involving a psychologist. This may or may not be of use to you.
As to your specific question: " what would the penalties be if it is consensual at the time, but it breaks down later and the counselor is sued by the client"
- Provided it was consensual the conduct was not criminal and you cannot retrospectively withdraw consent for past sexual encounters. Once consent is withdrawn further sexual approaches may constitute crimes and be punishable as sexual assaults depending on the circumstances.
However, the patients of counselors are often persons in especially vulnerable circumstances and the intimacy of the counseling relationship makes it unethical for a counselor to 'take advantage' of a patient. The disciplinary action that PACAWA or PACFA might take will depend in large part on their assessment of how vulnerable the patient and how/why the counselor took advantage. Each case will turn on its own facts.
Compensation, however, is generally only payable at law if there is a demonstrable psychological injury, and the amount of such compensation can vary widely, depending on the adverse affect on the affected subject. If a subject committed suicide as a result, his dependents may have a very large claim for compensation, whereas a person who was merely upset about what had happened but had suffered no injury, would receive nothing.
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Dip Law LPAB - Sydney based lawyer
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